[00:00:00] Speaker 00:
All right.

[00:00:01] Speaker 00:
I do see more than one person at council table.

[00:00:05] Speaker 00:
Is one person going to argue the whole thing?

[00:00:07] Speaker 00:
Yes, ma'am.

[00:00:08] Speaker 00:
You're going to argue everything?

[00:00:10] Speaker 00:
That's correct, ma'am.

[00:00:11] Speaker 00:
OK.

[00:00:11] Speaker 00:
All right.

[00:00:12] Speaker 00:
So do both of you travel from Saipan to be here with us?

[00:00:15] Speaker 03:
We did, Your Honor.

[00:00:16] Speaker 00:
Well, you obviously had a flight that took off and landed, and you're here in court.

[00:00:20] Speaker 00:
So I guess it was a good flight.

[00:00:21] Speaker 00:
Yes.

[00:00:22] Speaker 00:
But a long flight.

[00:00:23] Speaker 00:
OK.

[00:00:24] Speaker 03:
It can be a long flight.

[00:00:26] Speaker 00:
All right.

[00:00:27] Speaker 00:
Thank you.

[00:00:27] Speaker 00:
Good morning.

[00:00:28] Speaker 00:
You can proceed.

[00:00:29] Speaker 03:
Good morning.

[00:00:30] Speaker 03:
Thank you, Your Honor.

[00:00:31] Speaker 03:
My name is Bruce Berline.

[00:00:32] Speaker 03:
I represent the defendant appellant, Ms.

[00:00:34] Speaker 03:
Tidinko.

[00:00:35] Speaker 03:
I would like to reserve five minutes for rebuttal if I could.

[00:00:40] Speaker 03:
We are before this court for the third time in this same case.

[00:00:44] Speaker 00:
So it's either the charm for the government or for you.

[00:00:47] Speaker 00:
That's right.

[00:00:48] Speaker 00:
This is the tiebreaker.

[00:00:48] Speaker 00:
One way or the other.

[00:00:49] Speaker 03:
Two and 0.

[00:00:50] Speaker 03:
So this is it.

[00:00:52] Speaker 00:
And her husband's out of it now.

[00:00:53] Speaker 00:
He got out after the first case.

[00:00:58] Speaker 00:
After the first case.

[00:01:00] Speaker 00:
Yeah.

[00:01:00] Speaker 00:
OK.

[00:01:01] Speaker 03:
uh... the first that her first indictment was twenty sixteen it's this passage of time that uh... gives rise to the main issues in this appeal uh... and in fact that the two cvp officers that are the crux of it there's a few issues that you can see are law they were decided previously yes that are not the case are not going to revisit that i think i think is emmian uh... we we admit that

[00:01:29] Speaker 03:
Look, that was, I think this panel is bound by that, but I think as far as Nazemian applies, but I think the analysis of the factors under Nazemian are still, you can still do that, and we'd also like to make the record for what we think is an appropriate ambonque appeal and possibly resolving this issue in the Supreme Court.

[00:01:55] Speaker 03:
So we do have some arguments on Nazemian.

[00:01:59] Speaker 03:
The jury instruction argument is pretty much, Tidinko 1 and Tidinko 2, I think, took care of that.

[00:02:10] Speaker 00:
So the sufficiency of the evidence also seemed foreclosed by the prior appeals.

[00:02:19] Speaker 03:
I would disagree with that, and I will touch on that, Your Honor.

[00:02:23] Speaker 03:
So if you would like me to, on the sufficiency of the evidence, the government claims that look, this is the problems with the previous, with Agun and Munya, their evidence that came in on the third, this third trial, that was erroneous.

[00:02:50] Speaker 03:
Argun should have never been able to state that, hey, this APIS document states that XN had a return flight from Saipan.

[00:03:04] Speaker 03:
And she should have certainly never been able to state that, and yes, this APIS form is true and correct.

[00:03:10] Speaker 03:
She had absolutely no knowledge of anything.

[00:03:14] Speaker 03:
Well, let me ask you about that.

[00:03:16] Speaker 03:
Yes.

[00:03:18] Speaker 04:
And help me with this.

[00:03:20] Speaker 04:
there's your client has a written statement, correct?

[00:03:26] Speaker 03:
That's correct.

[00:03:27] Speaker 04:
And doesn't that written statement indicate that she knew of the departure date?

[00:03:32] Speaker 03:
No, that written statement says, she goes, I saw the I-94 passport.

[00:03:38] Speaker 03:
I saw the I-94 form in, we've always referred the minor as XN, Xinyi.

[00:03:46] Speaker 03:
But that's it.

[00:03:47] Speaker 03:
That's all that statement says.

[00:03:49] Speaker 03:
There's no context whatsoever in that statement.

[00:03:52] Speaker 04:
Doesn't the form say what the departure date is?

[00:03:54] Speaker 03:
It's stamped, yes.

[00:03:56] Speaker 04:
Right.

[00:03:58] Speaker 04:
So she says, I saw the form.

[00:04:00] Speaker 03:
Correct.

[00:04:01] Speaker 04:
And it's a matter for argument to the jury whether or not she read that portion of the form or didn't read that portion of the form.

[00:04:10] Speaker 04:
But there's no doubt that the form has the departure date on it, doesn't it?

[00:04:14] Speaker 03:
That's correct.

[00:04:16] Speaker 04:
wasn't, now I'm looking at both your translator arguments and the other arguments, put all those aside for a second.

[00:04:22] Speaker 04:
Yes.

[00:04:23] Speaker 04:
If it wasn't, wasn't a finder of fact entitled to believe that having seen the form that had the departure date on it, she knew the departure date but nonetheless kept

[00:04:36] Speaker 04:
kept the young woman there after the departure date.

[00:04:39] Speaker 03:
I think they're entitled to do that.

[00:04:41] Speaker 03:
The problem is there's no context as to when did she see that.

[00:04:45] Speaker 04:
But that context, you're making legal arguments to us.

[00:04:49] Speaker 04:
One is that some of these other statements are not admissible, or that the evidence is not sufficient.

[00:04:54] Speaker 04:
And I'm trying to look at the evidence in the light most favorable to the government.

[00:04:58] Speaker 04:
And it seems to me the one piece of evidence you have a hard time getting around, other than arguing facts, is that she saw this document.

[00:05:06] Speaker 04:
It had the departure date on it.

[00:05:08] Speaker 04:
And so the whole key to this case is, did she know that there was a departure date in Nonetheless Harbor?

[00:05:14] Speaker 04:
young woman for a longer period, and that strikes me as the smoking gun.

[00:05:18] Speaker 04:
So how do I deal with that?

[00:05:20] Speaker 03:
So I think the way we deal with that is the air of the testimony of Agun and the air, erroneous testimony of Munya.

[00:05:31] Speaker 04:
So when you... Why aren't those harmless if in fact she knew of the date?

[00:05:37] Speaker 03:
Correct.

[00:05:37] Speaker 03:
Because that testimony, assuming she knew of the date, which in her statement she did,

[00:05:45] Speaker 03:
that testimony should never have come in.

[00:05:49] Speaker 03:
So we know that when there's testimony, when there's evidence that's erroneously admitted, you assume there's prejudice on there, right?

[00:05:57] Speaker 03:
We can't just ignore that erroneous evidence.

[00:06:01] Speaker 03:
I mean, that was powerful evidence from agent or

[00:06:06] Speaker 03:
officer augun that said xn had a return ticket and why did they want that because the government wanted her to say that that's the only reason she was called okay but you have to but I guess what okay if we agree with you that augun's testimony was wrongfully admitted

[00:06:29] Speaker 00:
even though I think I could have gotten it in as a first-year prosecutor under showing that people forget.

[00:06:38] Speaker 00:
You show them the report.

[00:06:40] Speaker 00:
Does this refresh your recollection?

[00:06:42] Speaker 00:
If it doesn't refresh your recollection, how do you make these reports?

[00:06:46] Speaker 00:
Do you make them at the time of the incident?

[00:06:48] Speaker 00:
Was it true and correct at the time?

[00:06:49] Speaker 00:
I don't know why they didn't do it.

[00:06:51] Speaker 00:
There were other ways to get it in.

[00:06:53] Speaker 00:
But that being said, if that's an error, to win, it seems to me, you have to show that that error is still prejudicial, even though it was corroborated by Officer Muna's testimony.

[00:07:07] Speaker 00:
So you've got to get Muna thrown out.

[00:07:09] Speaker 00:
And that in Ms.

[00:07:12] Speaker 00:
Tadingo's signed statement that she knew of the I-94, and it's in there.

[00:07:17] Speaker 00:
So in order to win, it seems like you've got to get all of that thrown out.

[00:07:23] Speaker 02:
Yeah.

[00:07:23] Speaker 02:
Well, and let me add before you answer that the officer was also subject to extensive cross-examination, which she acknowledged that she didn't have a memory of any of this.

[00:07:38] Speaker 02:
So I mean, to me, that kind of adds to the harmlessness of the error.

[00:07:44] Speaker 03:
That she admitted she had absolutely no- That she was cross-examined on it.

[00:07:49] Speaker 03:
yes absolutely you're talking about officer album that's right and who said i have no knowledge or no memory of the tight ankles whatsoever but yet she came in and testified that yet this eight this document which is filled in by the airlines

[00:08:07] Speaker 00:
But what Judge Thomas is saying is, let's assume it's an error, but if she was cross-examined and she said she has no knowledge of it, it didn't make much of a difference because no one would believe her.

[00:08:23] Speaker 02:
Right, no one would believe her.

[00:08:25] Speaker 02:
Why would anyone give that testimony any weight when she gets on the stand and acknowledges, you know what, actually I didn't remember any of that.

[00:08:33] Speaker 03:
No, I mean, I think her testimony about the APIS form is, and the government says, well, she printed it out.

[00:08:41] Speaker 03:
She printed out this APIS, and they try and argue that that's, well, that's percipient, that's real time, that's where her memory comes from.

[00:08:48] Speaker 03:
But it's not.

[00:08:50] Speaker 03:
It's the APIS form that she testifies that this is an official government document, and in that document,

[00:08:58] Speaker 03:
it it states that zingyi has a return ticket leaving saipan right and why is that important because that goes to miss taidinko's intent that she knows that zingyi needs a return ticket she's got to get out of there so they want that to show miss taidinko's intent that she is going she intends to violate immigration law

[00:09:24] Speaker 03:
that's the important thing there she might say I have no recollection that's absolutely true but when it comes to the APIS form she says oh yeah I saw it and that's what it said and then she said this APIS form is absolutely true accurate and correct that's powerful statement coming from a CBP officer yet she has absolutely

[00:09:51] Speaker 03:
excuse me, no foundation to say that.

[00:09:56] Speaker 04:
Can we go back to the I-94 form?

[00:10:01] Speaker 04:
Because I want to make sure we have the record correct on that.

[00:10:04] Speaker 03:
That's what was stapled into Zing Yi's passport.

[00:10:09] Speaker 04:
Right, but that's what the I-94 form

[00:10:15] Speaker 04:
says, has the date on it by which XN is supposed to return to China, right?

[00:10:20] Speaker 03:
Yes.

[00:10:21] Speaker 04:
And we talked about that before.

[00:10:24] Speaker 04:
My question is, doesn't your client say not only that she saw the form, but she saw the date on it?

[00:10:33] Speaker 03:
She did see the date on it, but we still don't know.

[00:10:36] Speaker 03:
Does she understand what that means?

[00:10:39] Speaker 04:
OK, I just want to make sure that we're not fighting about what the record says.

[00:10:43] Speaker 04:
She did say, I saw the form and saw the date on it.

[00:10:46] Speaker 04:
Yes.

[00:10:46] Speaker 04:
By which the young lady was supposed to return to China.

[00:10:50] Speaker 04:
Yeah, and that's the- Her argument is I didn't understand that- Correct.

[00:10:54] Speaker 04:
That she wouldn't stay long.

[00:10:55] Speaker 04:
Okay.

[00:10:56] Speaker 04:
But I thought you told me before, it wasn't clear that, well, she saw the form that she understood it.

[00:11:03] Speaker 04:
But she did understand there was a date on there that said that was the date on which the young lady was supposed to return to China.

[00:11:08] Speaker 00:
She doesn't really testify at trial, right?

[00:11:11] Speaker 00:
She just, it's her,

[00:11:13] Speaker 00:
her statement.

[00:11:15] Speaker 00:
Do you want to save the balance of your time for rebuttal?

[00:11:19] Speaker 03:
Yes.

[00:11:19] Speaker 03:
Okay.

[00:11:21] Speaker 03:
Thank you.

[00:11:21] Speaker 00:
Let's hear from the government.

[00:11:22] Speaker 00:
Thank you.

[00:11:30] Speaker 00:
Good morning.

[00:11:31] Speaker 01:
Good morning.

[00:11:32] Speaker 01:
May it please the court?

[00:11:35] Speaker 01:
Ashley cost on behalf of the United States.

[00:11:37] Speaker 01:
Did you try this case?

[00:11:38] Speaker 01:
I did not, your honor.

[00:11:39] Speaker 00:
Well, it sort of seems like the gang that can't shoot right here.

[00:11:43] Speaker 00:
I mean, in terms of it doesn't did.

[00:11:47] Speaker 00:
What was your sentence ultimately?

[00:11:50] Speaker 04:
Pretty much.

[00:11:52] Speaker 00:
Yeah, so we're not talking about we're going after Al Capone or the head of a, but okay, so we're on the third trial and maybe you didn't make the mistakes of the first and the second trial, but now we have more.

[00:12:07] Speaker 00:
So why can't we just get this right here?

[00:12:11] Speaker 00:
Give us a break.

[00:12:14] Speaker 01:
Your Honor, I can't answer that.

[00:12:16] Speaker 00:
So, all right, is it your position that Officer Munoz's testimony about the translated interview with Tadingo is foreclosed by our decision in the prior appeal, Tadingo?

[00:12:29] Speaker 01:
Correct, Your Honor.

[00:12:30] Speaker 01:
In Tadingo II, the Ninth Circuit's prior decision, they determined that the dispositive factor was Ms.

[00:12:38] Speaker 01:
Tadingo's fluency in English.

[00:12:41] Speaker 00:
Did they find that she could speak English?

[00:12:44] Speaker 01:
Yeah, they said that that was determined to be the dispositive factor, was her fluency in English, which can be seen by her speaking to Officer Munya in English and in Chinese, by her interview with Task Force Officer Debral.

[00:13:00] Speaker 01:
She spoke in English when he informed her that they were going to get a translator.

[00:13:05] Speaker 01:
even though she could, she insisted she spoke English, she understood English, but they still got a translator because it wasn't her first language.

[00:13:14] Speaker 01:
And then when they, and then Officer DeBral testified in court that when they asked questions to Ms.

[00:13:21] Speaker 01:
Tidenko, that she would answer in English, answer back in English, they still would use the translator who would then translate and then,

[00:13:31] Speaker 01:
They recorded it into another or onto the personal statement, which at a later date she signed that personal statement.

[00:13:43] Speaker 01:
They would go through the statement line by line.

[00:13:46] Speaker 01:
Having it translated... Is there a trick question in there too?

[00:13:51] Speaker 01:
Yes, they put intentionally false information in there to ensure that the person who's signing the form is going through it accurately and they agree with what's being said in this specific instance.

[00:14:04] Speaker 01:
The HSI investigators put in a mistake on her birth date to ensure accuracy and understanding.

[00:14:13] Speaker 01:
And previously...

[00:14:15] Speaker 01:
She corrected it, correct.

[00:14:17] Speaker 01:
And previously, this is similar to the Anfeng case, which the Ninth Circuit has previously upheld with the language lines translators and HSI's use of going through the personal statements line by line, ensuring correction, putting in errors.

[00:14:37] Speaker 01:
So it is similar to the Anfeng case, but more than that, as already stated, in Ty Dinko, too, that's the dispositive factor of her fluency in English.

[00:14:47] Speaker 04:
So what about, it may not make a difference on the record in this case, but what about the testimony, and I forget which of the officers it was, about, it was my impression that they were, you know, purported to be related or something like that.

[00:15:04] Speaker 04:
Isn't that, I mean,

[00:15:07] Speaker 04:
Why should that come in?

[00:15:09] Speaker 01:
Your honor, that was Officer Munoz.

[00:15:11] Speaker 04:
Yes.

[00:15:11] Speaker 01:
And he said it was his understanding.

[00:15:15] Speaker 04:
But he couldn't remember on what he based the understanding.

[00:15:18] Speaker 01:
Well, I would assert that his understanding was his recollection of the events at the time.

[00:15:23] Speaker 01:
So he couldn't positively identify Miss Tidinko in court, but his understanding of the event, he could, that it was an adult female and a minor that was coming through for secondary inspection, that she spoke English and Chinese, and his understanding of their relationship, and that's where it was specific to the relationship, was that it was

[00:15:48] Speaker 01:
one of an aunt and a niece, that there was a familial relationship.

[00:15:53] Speaker 04:
Can I ask a question you may not be able to answer?

[00:15:56] Speaker 04:
Yes.

[00:15:56] Speaker 04:
Because you're not in charge.

[00:15:59] Speaker 04:
Why are we still here?

[00:16:01] Speaker 04:
This is the third trial of someone who got a 90-day sentence.

[00:16:06] Speaker 04:
Are we here about something else that we don't know about?

[00:16:10] Speaker 01:
So your honor, but again, I I'm not the one who tried who tried the cases, but I think it is important Especially with our district and the conditional parole program that happens It is important that people follow the rules of that program in order for the program to continue Because tourism helps our district, right?

[00:16:33] Speaker 00:
She's an example

[00:16:35] Speaker 01:
I wouldn't necessarily say that she's an example, but it's a situation that we knew that she obviously violated the law, and we move forward with the case.

[00:16:47] Speaker 00:
So, if the district court erred in admitting Officer Aguan's testimony, is it harmless given the testimony was corroborated by Officer Muna's testimony?

[00:17:02] Speaker 01:
Yes, I would agree that it's corroborated by Officer Munoz's testimony and by the report from the tech system, which was government exhibit one.

[00:17:12] Speaker 01:
And then as discussed earlier, and as decided in Tidenko one and two,

[00:17:21] Speaker 01:
The fact that Ms.

[00:17:22] Speaker 01:
Tydinko's personal statement admits that she had XN's passport, that she saw the white I-94 stapled in the passport, which has the date just stamped right in the middle of it, that she knew that XN was supposed to leave by November 4th, 2013, and that she intended to keep her past that date.

[00:17:46] Speaker 04:
Let's talk about the return ticket for a moment.

[00:17:49] Speaker 04:
I'm not sure I see any problem with the officers saying, our understanding of policy at the time was that in order to enter this way, one had to have a return ticket.

[00:18:02] Speaker 04:
But what about their testimony that the defendant knew about the return ticket?

[00:18:11] Speaker 04:
What is that based on?

[00:18:16] Speaker 01:
Well, so the I-94 is separate than the return ticket.

[00:18:20] Speaker 01:
Right, right.

[00:18:20] Speaker 01:
Yeah, I know.

[00:18:21] Speaker 04:
So we know from the I-94 that the defendant says, I read this document which had the return date.

[00:18:27] Speaker 04:
But in order to bolster the government's case, the government also wanted to put in evidence that there was a return ticket.

[00:18:34] Speaker 04:
That's fine with me because

[00:18:36] Speaker 04:
That's the practice of the admitting officers to make sure there's a return ticket.

[00:18:41] Speaker 04:
But how do you tie knowledge of the return ticket to the defendant in this case?

[00:18:47] Speaker 01:
I would say you would tie it to the defendant by also in her personal statement, she admits that she was the person who accompanied XN through customs.

[00:18:56] Speaker 04:
Well, but see, you can do it through that, but here you've got an officer saying,

[00:19:01] Speaker 04:
In effect, she must have known of the return ticket because it's on forms that she may or may not have seen.

[00:19:08] Speaker 04:
So how do, isn't that testimony, I'm not sure it's harm, I'm not sure it's reversible error, but how does that come in?

[00:19:18] Speaker 01:
So again, I would assert that what Officers Munoz and Officer Augens testimony was about the primary and secondary inspections in order to get that I-94 stamp or I-94 stapled into the back of the passport in order for that to happen, all these other steps have to happen, which include going through the tech forms, confirming all of the information, and the most important part of the conditional parole program

[00:19:47] Speaker 01:
is in order to be let in to the CNMI, you have to have a return ticket.

[00:19:52] Speaker 01:
If they don't have a return ticket, then they won't be let in and the airline has to immediately repatriate them out.

[00:20:01] Speaker 01:
So I would say that because that is part of the process of how to get the I-94 form and because

[00:20:10] Speaker 01:
Ms.

[00:20:10] Speaker 01:
Tydinko accompanied Exxon through the process, that that would be how we would know that she knew about the return ticket, because that's what most of the questions focus on, or one of the primary things the questions focus on is whether there's a return ticket, otherwise they're not coming in.

[00:20:28] Speaker 04:
Now, help me on this.

[00:20:29] Speaker 04:
The officers don't say she knew of the return ticket, do they?

[00:20:35] Speaker 01:
They don't.

[00:20:36] Speaker 04:
It's not a return ticket.

[00:20:38] Speaker 04:
It's on forms.

[00:20:39] Speaker 04:
It's our practice.

[00:20:40] Speaker 04:
I would have checked to have seen whether there was one, but they never say and she therefore knew of it, do they?

[00:20:47] Speaker 01:
No, they do not.

[00:20:48] Speaker 04:
That's the argument you make from their testimony.

[00:20:50] Speaker 04:
Yeah.

[00:21:02] Speaker 01:
So I would say, again, if it's specifically the translated statement that doesn't get in, it is a much tougher case.

[00:21:13] Speaker 01:
We would still have to move forward on the other evidence presented by the officers that Ms.

[00:21:20] Speaker 01:
Tidingo knew of the departure date and intended to keep XN.

[00:21:24] Speaker 01:
But again, that specific.

[00:21:27] Speaker 00:
But if the statement doesn't come in, then you don't have her saying she looked at the I-994, right?

[00:21:35] Speaker 01:
Correct.

[00:21:36] Speaker 01:
You would just have the statements of, specifically Officer Munoz, that a woman accompanied XN the minor through the process when he was a secondary inspection, but he didn't specifically identify Miss Tidingo as that person.

[00:21:52] Speaker 00:
So what errors

[00:21:54] Speaker 00:
have to be harmless in order for you to still prevail?

[00:21:57] Speaker 00:
If we find any, or let's just say the other way, if we find errors not to be harmless, what would make you lose here?

[00:22:09] Speaker 01:
Yes, so I would say, as you touched on it, not admitting in her personal statement would make this a much more difficult case, but like I said before,

[00:22:22] Speaker 00:
The translated statement took place over, the original interview took place on... I know you're not conceding that it doesn't come out, but if it does come out, maybe you lose, or let's say if Officer Angwin, if that goes and her statement goes, do you lose?

[00:22:42] Speaker 01:
No, so I would say specifically... It's getting very thin.

[00:22:46] Speaker 01:
So I would say specifically with Officer Oggen and Officer Munya, either one of their testimonies, the error is harmless because we have the signed statement from Ms.

[00:22:57] Speaker 01:
Tadanko admitting that she.

[00:23:00] Speaker 00:
I know you have to argue they're harmless, but I'm just saying hypothetically, if we don't find they're harmless, at what point do you lose?

[00:23:10] Speaker 00:
I mean, what do you have anything left?

[00:23:13] Speaker 00:
Is there anything left?

[00:23:14] Speaker 04:
I would say without the signed statement, it, like I said, it'd be a... And your friend's argument, so I want you to respond to it, is yeah, the signed statement ain't good for his client, but it got buttressed by a bunch of evidence that he doesn't think should have come in.

[00:23:31] Speaker 04:
So let's assume for a moment, as Judge Callahan posits, that we might find that the other evidence shouldn't have come in.

[00:23:38] Speaker 04:
Forget our previous decisions and everything else.

[00:23:41] Speaker 04:
Is it nonetheless harmless in your view because of the signed statement, or does his point have some substance?

[00:23:50] Speaker 01:
My argument would be that it's nonetheless harmless because of the signed statement, as decided in Ty Dinko too.

[00:23:56] Speaker 01:
The fact that there's a signed statement saying that she saw the I-94, she knows the date that XN's supposed to leave, and she keeps her

[00:24:03] Speaker 01:
they're past the date, that evidence is sufficient enough.

[00:24:07] Speaker 04:
Sufficiency is the evidence argument.

[00:24:09] Speaker 04:
I'm just trying to figure out whether or not it also kills their argument that the introduction of other corroborating evidence was not harmless, if erroneous.

[00:24:21] Speaker 01:
I would say specifically touching on Officer Oggen and Officer Munoz's testimony, it is harmless because of the corroborating evidence, which includes the Texas and Report Exhibit 1, Exhibit 2, and then specifically her signed statement.

[00:24:41] Speaker 00:
We don't appear to have any additional questions.

[00:24:44] Speaker 01:
Okay.

[00:24:44] Speaker 01:
Thank you, Your Honors.

[00:24:45] Speaker 00:
Thank you for your argument.

[00:24:51] Speaker 03:
So again, assuming Munya's testimony and Agun's testimony, Agun's testimony is the worst in my opinion.

[00:25:05] Speaker 03:
Again, she comes in and says without any memory, without any personal knowledge,

[00:25:10] Speaker 03:
of the tight ankles or the APIS statement, she comes in and says, XN has a return ticket.

[00:25:17] Speaker 03:
And she says, this APIS form that says XN has a return ticket is true, accurate, correct.

[00:25:25] Speaker 03:
That's error.

[00:25:28] Speaker 03:
That's presumed erroneous.

[00:25:31] Speaker 03:
Evidence that admitted erroneous is presumed prejudicial.

[00:25:37] Speaker 04:
Well, but you start out with the notion that we then have to figure out whether it's harmless.

[00:25:42] Speaker 04:
Yes.

[00:25:43] Speaker 04:
And I do think the testimony that it is our policy to require return tickets is okay, and our policy that I normally check to see if there is one is okay.

[00:25:56] Speaker 04:
And then we have her statement that I knew she was supposed to return.

[00:26:00] Speaker 04:
When you put those two things together, why isn't that enough to get you past any error?

[00:26:06] Speaker 03:
Well, I don't think her statement does say, I knew she was supposed to return.

[00:26:10] Speaker 03:
It simply says at one point.

[00:26:11] Speaker 04:
I saw the date of return.

[00:26:12] Speaker 03:
Yeah.

[00:26:14] Speaker 03:
Well, I saw the date in the passport and the date of parole.

[00:26:18] Speaker 03:
She doesn't say, that's an issue.

[00:26:22] Speaker 03:
Nobody asks her, it goes, do you know what parole means?

[00:26:25] Speaker 03:
Do you know what this date?

[00:26:27] Speaker 03:
It's just a date in a form.

[00:26:29] Speaker 03:
It doesn't say you have to leave by.

[00:26:31] Speaker 03:
There's no indication.

[00:26:32] Speaker 03:
It's just a stamp.

[00:26:34] Speaker 03:
So there's no indication that she personally knows this, that she has to leave by this time.

[00:26:41] Speaker 03:
In fact, they enroll her in public school.

[00:26:44] Speaker 03:
They sign media release statements.

[00:26:46] Speaker 03:
They sign all these things.

[00:26:47] Speaker 03:
They give a map to their house.

[00:26:49] Speaker 03:
They're not trying to hide her, right?

[00:26:52] Speaker 03:
I mean, so the issue is, does she know what that means?

[00:26:59] Speaker 03:
Immigration laws are incredibly complex, especially CW1 immigration laws that are particular to the CNMI.

[00:27:06] Speaker 04:
Can you help me with the record?

[00:27:08] Speaker 04:
There's some evidence that your client was compensated for doing this.

[00:27:15] Speaker 04:
Yes.

[00:27:16] Speaker 04:
What I'm not clear from the record, is there evidence that she was compensated on other occasions

[00:27:20] Speaker 04:
were similarly hosting or arranging for students to come in.

[00:27:24] Speaker 04:
So it was just on this occasion.

[00:27:26] Speaker 04:
Yes.

[00:27:27] Speaker 03:
Yes, and so going back to assuming that evidence was erroneous admitted, the government has to come back and fight that with highly persuasive evidence.

[00:27:40] Speaker 03:
The statement, her statement, isn't highly persuasive.

[00:27:44] Speaker 03:
They can't just come in and say, Tidinko 2 said sufficiency of the evidence.

[00:27:50] Speaker 03:
Harmless error is different from sufficiency of the evidence.

[00:27:54] Speaker 04:
So does Tidinko 2 say anything about the admissibility

[00:27:57] Speaker 04:
of any of these officers' testimony.

[00:27:59] Speaker 04:
I'm sorry, Your Honor.

[00:28:00] Speaker 04:
Do our prior decisions say anything about the admissibility of either of the officers' testimony?

[00:28:09] Speaker 04:
Yes, I think.

[00:28:11] Speaker 04:
Okay, so I'm trying to figure, if you put Tidinko together with her knowledge of the I-94, why isn't it harmless error?

[00:28:24] Speaker 04:
I understand you want to preserve your objections to TIDINCO 2.

[00:28:27] Speaker 04:
I'm just trying to figure out.

[00:28:30] Speaker 03:
Yeah.

[00:28:30] Speaker 03:
As far as Officer Munoz and Officer, I'm not sure TIDINCO 1 or 2.

[00:28:35] Speaker 03:
I know TIDINCO 1 doesn't mention Officer Munoz.

[00:28:38] Speaker 03:
Right.

[00:28:38] Speaker 03:
That's why I asked about 2.

[00:28:39] Speaker 03:
He didn't testify.

[00:28:41] Speaker 03:
I don't think they talked about Officer Ogden's testimony.

[00:28:46] Speaker 04:
Right, but we have Officer Munoz's testimony that is treated.

[00:28:49] Speaker 03:
And Officer Munoz's testimony, it's not really that big a deal.

[00:28:52] Speaker 03:
It's that familial relationship, right, where he comes in and he has absolutely no recollection.

[00:28:59] Speaker 03:
He admits, in one line of questioning, the prosecution goes, do you remember your conversation between the lady and the minor?

[00:29:08] Speaker 03:
Well, are they related?

[00:29:10] Speaker 03:
Are they related?

[00:29:11] Speaker 03:
Yeah, are they aunt and niece?

[00:29:13] Speaker 03:
No, but in Saipan, and you'll see that in the transcript, in Saipan, everybody calls auntie, uncle.

[00:29:22] Speaker 03:
I have 1,000 nephews, because everybody, it's just the way it is there, so.

[00:29:30] Speaker 00:
Very respectful.

[00:29:31] Speaker 00:
Yes.

[00:29:31] Speaker 00:
And of people that are older.

[00:29:33] Speaker 00:
Yes.

[00:29:35] Speaker 00:
All right, unless there are additional questions, I would say wrap it up in 30 seconds.

[00:29:40] Speaker 03:
Thank you.

[00:29:43] Speaker 03:
My final point I think is just running, circling back to Nazemian.

[00:29:48] Speaker 03:
The judge, the court has to do the analysis.

[00:29:53] Speaker 03:
There's no broad discretion there.

[00:29:55] Speaker 03:
The court does not have broad discretion to do that analysis.

[00:29:58] Speaker 03:
They must do the analysis.

[00:30:00] Speaker 03:
There is absolutely no information available

[00:30:03] Speaker 03:
for the court to conduct analysis under the museum factors.

[00:30:08] Speaker 03:
There's no way she could be a conduit here in this case.

[00:30:15] Speaker 03:
And if there's no further questions, thank you.

[00:30:17] Speaker 00:
Thank you both for your argument.

[00:30:18] Speaker 00:
This matter will stand submitted.