[00:00:04] Speaker 03:
Good morning, Your Honors.

[00:00:05] Speaker 03:
Katie Herlbrink on behalf of Mr. Palacios.

[00:00:08] Speaker 03:
Before Mr. Palacios' trial, Agent Painter cracked into his phone and took photographs of text messages he found there.

[00:00:17] Speaker 03:
He memorialized his actions in a formal certification.

[00:00:22] Speaker 03:
Agent Pham then related the contents of the certification to the jury to explain where the photos had come from.

[00:00:30] Speaker 03:
Not only was that testimony the only evidence linking Mr. Palacios' phone to the text messages, it was also the only evidence linking the text messages to other evidence of identity on the phone, like the Facebook page or the contact listing.

[00:00:46] Speaker 02:
Can I ask you a foundational question right here?

[00:00:48] Speaker 02:
Yes.

[00:00:50] Speaker 02:
It's a little hard for me to understand on the record.

[00:00:51] Speaker 02:
This exhibit that was marked, the declaration, the certification that you're just referring to right now is marked as exhibit 54, but I think it wasn't admitted.

[00:00:59] Speaker 02:
Is that right?

[00:01:00] Speaker 02:
That's exactly correct, Your Honor.

[00:01:01] Speaker 03:
Okay.

[00:01:02] Speaker 03:
All right.

[00:01:03] Speaker 03:
So go right ahead.

[00:01:04] Speaker 03:
That's correct.

[00:01:05] Speaker 03:
But Agent FAM did relate the contents of that certification and your honors have said that that's the Sixth Amendment equivalent of having submitted it into evidence.

[00:01:15] Speaker 02:
In the course of that

[00:01:17] Speaker 02:
That's how I read the records.

[00:01:18] Speaker 02:
Essentially, one agent was on the stand sort of reading the contents or relaying the contents of this declaration, and the declaration wasn't admitted, right?

[00:01:26] Speaker 02:
That's correct.

[00:01:27] Speaker 02:
OK.

[00:01:28] Speaker 02:
So on page, I would like to know more specifically, please, at ER 511, it's page two of the declaration.

[00:01:34] Speaker 02:
This is Agent Painter then.

[00:01:37] Speaker 02:
His statement was, I was present or within proximity during the extraction.

[00:01:42] Speaker 02:
Did Agent Pham tell the jury that?

[00:01:48] Speaker 03:
Your Honor, I'm not sure that he said that in so many words.

[00:01:53] Speaker 03:
But he did say that Agent Painter retrieved the phone from a secure vault, that he obtained screenshots of content from the phone using an external camera.

[00:02:03] Speaker 03:
So he linked Agent Painter's actions to the retrieval of these photos from the phone.

[00:02:14] Speaker 03:
So the first contested issue between the parties is whether these photographs are testimonial.

[00:02:21] Speaker 03:
They plainly are under Bullcoming and Melendez-Diaz.

[00:02:26] Speaker 03:
The formalized certification that Agent Painter submitted is within the core class

[00:02:33] Speaker 03:
of testimonial statements defined by those cases.

[00:02:36] Speaker 03:
Melinda's Diaz tells us there's only one narrow exception to that core class, and that's simply when a certification introduces a business or public record.

[00:02:49] Speaker 03:
The photos of evidence taken during a law enforcement investigation for use at trial here

[00:02:55] Speaker 03:
are not business or public records.

[00:02:57] Speaker 03:
They're not kept by a neutral custodian.

[00:02:59] Speaker 03:
They're made for the purposes of litigation.

[00:03:01] Speaker 03:
They do not fit that.

[00:03:03] Speaker 02:
That, I guess, recounting of special agent painter's actions violated, if it's plein air,

[00:03:14] Speaker 02:
and it's an error that is plain, and if we agree that those were testimonial, right, then could you go to the third part of the plain error test and tell me why you think there wasn't otherwise sufficient evidence for a conviction here?

[00:03:28] Speaker 03:
Yes, Your Honor.

[00:03:29] Speaker 03:
And so I think the government has a couple of points.

[00:03:33] Speaker 03:
First, the government basically says that other evidence could have linked the text messages to Mr. Palacios, showing that he was the one who sent or received those messages.

[00:03:44] Speaker 00:
You know, counsel, I don't mean to interrupt your answer, but I mean, yes, you might have a point on the text messages, but in terms of harmless error, the truck had like 250 pounds of THC, and there was testimony that it took up so much space in the gas tank

[00:04:13] Speaker 00:
that the fuel gauge would not have shown the correct reading and that essentially a jury would have had to have known or a jury could have inferred that a driver would have had to have known that something was going on that either he knew about or was deliberately ignorant as to.

[00:04:29] Speaker 00:
So how does that factor into the harmless error, even if you're right on the linking the text messages?

[00:04:37] Speaker 03:
So we agree there was certainly sufficient evidence for a jury to find that.

[00:04:41] Speaker 03:
But the plain error test asks whether there was even a reasonable probability for the jury to acquit Mr. Palacios.

[00:04:49] Speaker 03:
And that's less than a certainty, less even than a likelihood.

[00:04:52] Speaker 03:
This court has held in cases like Velasquez in 2021, Espinosa in 2018, that drug value type and amount is not itself dispositive when it comes to harmless error.

[00:05:05] Speaker 03:
And here, even though the government had some points in its favor when it came to the car experts, we had some points in our favor too.

[00:05:13] Speaker 03:
We had an expert who testified that the lock on one of the doors was punched out, that there was signs of tampering.

[00:05:22] Speaker 03:
He saw some scratches that he thought could have been a sign of tampering.

[00:05:26] Speaker 03:
He also took a video where he just took a normal screwdriver, put that screwdriver in the ignition and turned and was able to start the car.

[00:05:35] Speaker 03:
And so with all of those facts together, our argument was that somebody could have broken into Mr. Palacios' car, taken it perhaps in the night.

[00:05:45] Speaker 03:
put these drugs in and been able to retrieve them likewise on the other side.

[00:05:49] Speaker 00:
240 pounds.

[00:05:52] Speaker 03:
Yes, Your Honor.

[00:05:53] Speaker 03:
And there was testimony about exactly how long that would take, how long it would take one person, how long it would take four people.

[00:06:01] Speaker 03:
And for example, if this were to happen overnight, it's not implausible that that could happen and the car be returned.

[00:06:11] Speaker 02:
I have a question about exhibit 50 sorry 47 it's a contacts page that was admitted and it says me and Ramon Palacios right and then the next page says me and it says umberto with a phone number I think that was used for the text so what was their testimony about that that being a nickname or or what is that I'm so your honor

[00:06:40] Speaker 03:
The problem with using those exhibits to link Mr. Palacios to the text messages is that those exhibits, too, the entire foundation for them was laid through Agent Painter.

[00:06:51] Speaker 02:
Can you back up and answer my first question first, if you would?

[00:06:55] Speaker 02:
Oh, I'm sorry.

[00:06:55] Speaker 02:
That's all right.

[00:06:56] Speaker 02:
I just want to make sure we have a clear record.

[00:06:57] Speaker 02:
It's exhibit 47?

[00:06:58] Speaker 02:
Yes.

[00:06:59] Speaker 02:
It's the context page that says me, and that says Ramon Palacios.

[00:07:03] Speaker 02:
So this is your client, yes?

[00:07:05] Speaker 02:
I'm sorry, Your Honor.

[00:07:06] Speaker 02:
I'm trying to pull it up.

[00:07:07] Speaker 02:
Sure.

[00:07:07] Speaker 03:
But I agree there's definitely a picture.

[00:07:10] Speaker 03:
S.E.R.

[00:07:10] Speaker 03:
23, if that helps you with your... Yes.

[00:07:13] Speaker 03:
But yes, there is a picture.

[00:07:14] Speaker 02:
Okay.

[00:07:15] Speaker 02:
So it's the next page, S.E.R.

[00:07:16] Speaker 02:
24, that also says me, and there's the Humberto there?

[00:07:20] Speaker 03:
Yes.

[00:07:21] Speaker 02:
I'm trying to figure out, is that your client?

[00:07:23] Speaker 02:
Or was there any dispute that that's your client there?

[00:07:25] Speaker 03:
I believe that it matches his middle name.

[00:07:32] Speaker 03:
And so I think the government's inference was that it was him.

[00:07:37] Speaker 03:
But there was no extra that I recall any testimony saying he went by him there to or anything like that.

[00:07:43] Speaker 02:
Okay, and you were explaining your response, your broader response is that these were not connected, or what were you saying?

[00:07:49] Speaker 03:
Yes, Your Honor, that Agent Painter's declaration is what actually was able to lay the foundation for all of these exhibits.

[00:07:58] Speaker 03:
So, you know, he was able to say, critically, that these exhibits came from the same phone as the text messages.

[00:08:06] Speaker 03:
And that may seem like a small thing, but it's not.

[00:08:09] Speaker 02:
Well, but the jury was left with... This is kind of a funny record for us, and your...

[00:08:13] Speaker 02:
Objection is quite specific, but but I think they had on the witness down agent fam who was the

[00:08:21] Speaker 02:
arresting investigating and so he testified he sees the phone they had that and i think for your briefing these other exhibits that were admitted were before the jury and your and your your questioning on when we talk about harmless air i think you're saying is that the jury wouldn't have been able to uh... tie these free-floating exhibits to your client is that your argument the free-floating exhibits to the text messages the free-floating exhibits to the text message so uh...

[00:08:50] Speaker 03:
I think the inference that the government is trying to ask the jury to draw here in this hypothetical is that they would basically say, look, we found this phone.

[00:08:58] Speaker 03:
The phone had some text messages.

[00:09:00] Speaker 03:
We were then able to go into the contacts of this same phone and find a contact that said, me, Humberto.

[00:09:07] Speaker 03:
Therefore, we can determine that the ownership of the phone fell to Mr. Palacios.

[00:09:12] Speaker 03:
And therefore, we can understand that these text messages also came from Mr. Palacios.

[00:09:17] Speaker 03:
But there is no evidence without this declaration that these two things came from the same phone.

[00:09:24] Speaker 03:
They're just two photographs with no context.

[00:09:29] Speaker 02:
Could you look at exhibit 53 for me, please?

[00:09:31] Speaker 02:
That's the summary.

[00:09:33] Speaker 02:
Let me see what it's called.

[00:09:34] Speaker 02:
It's called...

[00:09:39] Speaker 02:
I have it up your honor.

[00:09:41] Speaker 02:
Oh, thank you.

[00:09:42] Speaker 02:
Forgive me.

[00:09:42] Speaker 02:
I can't quite see the title of it So this is a summary of the text messages, right and if you scroll through it Don't they don't they line up?

[00:09:54] Speaker 03:
with the crossings, Your Honor.

[00:09:58] Speaker 03:
So the government does say that there are some places where they line up.

[00:10:03] Speaker 03:
Obviously, some of them are going to line up with crossings.

[00:10:06] Speaker 03:
Other crossings are not going to have, or other of them occur at times when there are no crossings.

[00:10:12] Speaker 02:
On the left-hand column, sorry, the second column from the left, it does say Ramon Humberto Palacios.

[00:10:17] Speaker 02:
So I think this is where the middle name comes in, Humberto?

[00:10:20] Speaker 02:
Yes, Your Honor.

[00:10:22] Speaker 02:
And then I think when you're talking about the crossings over the border, you're reading in the columns to the right, yes?

[00:10:30] Speaker 02:
And you think some of them don't line up, is that right?

[00:10:32] Speaker 03:
Well, Your Honor, so the government's two examples, just to sort of reduce it to a couple of examples.

[00:10:38] Speaker 03:
The government says that Mr. Palacios texted someone the day after he crossed, talking about deliveries and payment.

[00:10:49] Speaker 03:
So this is like a 24-hour gap.

[00:10:52] Speaker 03:
and then also was able to text, received a text nine minutes before he crossed at a different time.

[00:10:57] Speaker 03:
But recall that without Agent Painter's testimony, there is no evidence in the record about where, like there's no location data.

[00:11:07] Speaker 03:
So these texts, if you don't already have them linked to Mr. Palacios,

[00:11:12] Speaker 03:
could have come from any phone, from any person in the entire world.

[00:11:16] Speaker 03:
They aren't linked to the border region.

[00:11:18] Speaker 03:
They're not linked to California.

[00:11:20] Speaker 03:
They're not linked to North America.

[00:11:22] Speaker 03:
And so in that situation, I think the defense would have strong grounds to argue that these kind of vague correspondences could be a coincidence.

[00:11:32] Speaker 03:
Wasn't that an argument made at trial?

[00:11:35] Speaker 03:
No, Your Honor, because at trial, because these text messages were found on a phone that was found on Mr. Palacios, and the government was able to prove that through Agent Painter's declaration, it was pretty hard to argue that these weren't his texts.

[00:11:50] Speaker 03:
All right.

[00:11:51] Speaker 03:
Thank you, Your Honor.

[00:11:51] Speaker 03:
Thank you, Counsel.

[00:12:02] Speaker 01:
Please the court.

[00:12:03] Speaker 01:
Zach Howe on behalf of the United States.

[00:12:06] Speaker 01:
Judge Kristen, you had two lines of questioning.

[00:12:07] Speaker 01:
I wanted to pick up on both of them.

[00:12:09] Speaker 01:
The first related to the certificate not coming into evidence.

[00:12:12] Speaker 01:
That's true.

[00:12:12] Speaker 01:
And I think that point actually shows why, even if you agree with everything my friend on the other side said, these text messages were still going to come into evidence.

[00:12:22] Speaker 01:
And the reason is because the government pre-trial and its motions in Lemony outlined exactly what it would do.

[00:12:28] Speaker 01:
This is a page 11 and 12 of the supplemental excerpts of record.

[00:12:32] Speaker 01:
It says, we are going to rely on the unadmitted certificate to authenticate the admitted text messages.

[00:12:38] Speaker 01:
And it cited this court's Nishida case, which approved that procedure.

[00:12:42] Speaker 02:
But we're not talking about authentication here, right?

[00:12:44] Speaker 02:
We're talking about a different problem, which is the opportunity to cross-examine.

[00:12:49] Speaker 01:
So the point being, Your Honor, is that even if there was a lack of ability to cross examine based on relaying the contents of the certificate, well, there was, right?

[00:13:02] Speaker 02:
You're saying even if, but I don't see one.

[00:13:04] Speaker 02:
Is that did you intend to qualify that statement?

[00:13:07] Speaker 01:
So I think there's an argument that what Agent Pham relayed from the certificate was not, in fact, testimonial communications.

[00:13:15] Speaker 02:
OK, if I don't agree with you on that, what's your next best shot?

[00:13:17] Speaker 01:
The next best shot is that, through all that testimony out, these text messages are still going to come into evidence.

[00:13:22] Speaker 01:
And the reason is conceded.

[00:13:24] Speaker 01:
It's conceded below and on appeal.

[00:13:26] Speaker 01:
So again, the government said, we're going to use the unadmitted certificate to authenticate these text messages.

[00:13:32] Speaker 01:
At page 45 of the record, at the motion and eliminate hearing,

[00:13:36] Speaker 01:
defense counsel says we have no objection to the government utilizing that process so certificate doesn't come in text messages do come in based on that authentication then at footnote three of the reply brief on appeal they again confirm that they are not challenging that authentication

[00:13:51] Speaker 01:
Now, of course, authentication under 901A is, you know, the item is what the proponent claims that it is.

[00:13:59] Speaker 01:
Here, the government all along claim that these were messages from Palacios' phone, and again, we have a concession to authentication both below and here.

[00:14:08] Speaker 01:
So there is no world in which these text messages don't come into evidence, even if you agree that that testimony from Agent Pham was improper.

[00:14:16] Speaker 01:
And then the second point I think you raised related to the contents of the messages themselves and the testimony and the text records and how it all lines up.

[00:14:26] Speaker 01:
The court was absolutely entitled to consider the content of the messages themselves.

[00:14:30] Speaker 01:
That's rule 901 B4.

[00:14:33] Speaker 01:
And the content of the messages included the exhibit you mentioned at SER24, which had the name Umberto, that's Palacios' middle name, and then the case agent at page 18 and 19 of the record actually testifies that that photo in that exhibit is Palacios.

[00:14:50] Speaker 01:
And then you can line that photo up with all the text messages beginning at page 580 of the record, and that same photo is there.

[00:14:56] Speaker 01:
So this is a photo of Palacios in the text messages that the agent has identified as him.

[00:15:01] Speaker 01:
And when you said agent a case agent just to be clear for the record you're talking about agent fam who was the investigating agent who sees the phone physically seized it at the border yes physically seized it and he conducted the post arrest interview so he had obviously seen Palacio so then he was able to say that photo is of Palacio's

[00:15:19] Speaker 01:
And then, of course, there are the text records, and my friend on the other side is right, you know, there are times when they're having discussions when there aren't border crossings, but by and large, when there are border crossings, the text messages line up with them, including the penultimate text message nine minutes before Palacios crosses the border, where he's asked, what are you waiting for?

[00:15:38] Speaker 01:
So I think given the messages themselves, given the identification by the agent and given the border crossings, there's no way that a jury is going to look at these text messages and say, well, they say his name, they have his photo, they line up with his border crossings, but it's probably not his text messages.

[00:15:56] Speaker 01:
So I think, again, even if you agree with everything my friend on the other side is saying, and even if you don't rely on the unadmitted 902-14 certificate,

[00:16:05] Speaker 01:
then you still have all of that evidence that came in showing that these are, in fact, messages from Palacios.

[00:16:14] Speaker 01:
Now, I'll do my best to address the merits of the actual testimony, and you may disagree with me, but I do think because we are on plain error, the question is, do you have authority that is clear and obvious showing that relaying that content of agent painter's certificate amounted to testimony implicating the confrontation clause?

[00:16:35] Speaker 01:
My friend on the other side is absolutely right that much of that resembles the sort of statements found to be testimonial in Bullcoming and Melendez-Diaz.

[00:16:44] Speaker 01:
But I do think it's important to note that in Inekwu, you also had statements that were very similar to the ones in Bullcoming and Melendez-Diaz.

[00:16:53] Speaker 01:
And there you were dealing with certificates authenticating business and foreign records.

[00:16:56] Speaker 01:
We're not claiming that this is a business or a foreign record.

[00:17:00] Speaker 01:
But the significance of that case is that the certificates talked about when and by whom and for what purpose the records were created.

[00:17:10] Speaker 01:
So it said that these are created by someone with knowledge in the regular course of business as part of the business's regularly conducted activities at or near the time of the events.

[00:17:20] Speaker 01:
All of those statements resemble statements like those in Bullcoming and Melendez-Diaz and yet the court said that's not testimonial because ultimately all they're doing is certifying a business record which itself is not testimonial.

[00:17:35] Speaker 01:
Well here I think by analogy you can at least make the case that the bottom line of all of those statements in agent painter's certificate is just to authenticate a copy of a cell phone.

[00:17:47] Speaker 01:
And that's very different than what was happening in Volcoming and Melendez-Diaz.

[00:17:52] Speaker 01:
There you weren't just copying something.

[00:17:54] Speaker 01:
It wasn't that substance gets copied into another substance.

[00:17:57] Speaker 01:
It was that you had a test that was identifying what is the drug at issue, or what is the blood alcohol content.

[00:18:06] Speaker 01:
That's testing and interpreting.

[00:18:07] Speaker 01:
That's very different than a copy.

[00:18:09] Speaker 01:
And so on plain error review, I don't think it's clear and obvious that this falls into the Melindez, Diaz, and Bullcoming bucket, as opposed to the Clerk Certificate and EQU bucket.

[00:18:22] Speaker 01:
And that's all you need for plain error review.

[00:18:24] Speaker 01:
Maybe on de novo review you would disagree with me, but I think on plain error review it's not clear and obvious.

[00:18:30] Speaker 01:
Again, I don't think the court needs to reach that question.

[00:18:32] Speaker 01:
I think the clearest path to affirmance is based on what's already been conceded as appropriate grounds to authenticate these messages and all of that evidence showing that these were, in fact, messages from the phone.

[00:18:44] Speaker 01:
And then Judge Bennett, the final point is that I think you rightly note that even if you throw out the text messages, you're still left with the amount of the drugs, the value of the drugs, and the mechanics testimony

[00:18:56] Speaker 01:
And while there was some dispute on whether the car had been broken into, there was no dispute that the amount of the gas tank space that would have been taken up was nearly 100%.

[00:19:09] Speaker 00:
To me, the quantity of the drugs

[00:19:15] Speaker 00:
you know has a certain compelling value but added to the testimony that this is filling up the gas tank and that you could only put in a very small amount of gas and that the the jury would have to conclude not only did the defendant not know the drugs were in the car

[00:19:36] Speaker 00:
but that had no idea that there was this strange thing with the gas tank that someone, and that someone had used this method without the defendant's knowledge.

[00:19:48] Speaker 01:
I think that's right.

[00:19:49] Speaker 01:
And the logical inference is if he doesn't know, then he's either going to run out of gas before he gets where whoever put it in the car is going to want him to go.

[00:19:56] Speaker 01:
Or he's going to try and fill his car up with gas and it's not going to work.

[00:19:59] Speaker 01:
And then he's going to know that the jig is up.

[00:20:01] Speaker 01:
So I think that's compelling evidence.

[00:20:03] Speaker 01:
And then the final point, you know, on the dispute about the car being broken into, our auto experts said,

[00:20:10] Speaker 01:
that the car had not been broken into.

[00:20:12] Speaker 01:
Their expert said it was possible it had been broken into.

[00:20:15] Speaker 01:
But then in cross-examination, he said if it had been broken into, you would have expected to find the lock inside the door paneling.

[00:20:23] Speaker 01:
And he said he looked, and he couldn't find the lock.

[00:20:25] Speaker 01:
So again, I think even on that debate, our evidence had the better of it, but there was no explanation for the gas tank and some of the other other evidence I've discussed.

[00:20:35] Speaker 01:
So I think for all of those reasons, even if you disagree with us on the first two prongs of plane error, you should at least agree on the third prong.

[00:20:43] Speaker 01:
And I'd ask the court to affirm, and if the court has no other questions.

[00:20:45] Speaker 01:
I have a question.

[00:20:47] Speaker 02:
Absolutely.

[00:20:47] Speaker 02:
You mentioned Inequu at some length, and I think you're relying on it as your best argument for this not being testimonial.

[00:20:53] Speaker 02:
But Inequu, I think in that case, it specifically limited itself to exhibits that were not prepared evidence.

[00:20:59] Speaker 02:
It was not prepared for trial.

[00:21:01] Speaker 02:
And these exhibits clearly were.

[00:21:03] Speaker 02:
That's why I read Inequu very differently.

[00:21:05] Speaker 02:
Do you want to respond to that?

[00:21:06] Speaker 01:
Sure, so I think in equity deals both substantively with the business and foreign records and then the certifications that authenticate the business and public records when it's dealing with the certifications.

[00:21:19] Speaker 01:
I don't think there was any dispute that these certifications were prepared in anticipation of litigation.

[00:21:24] Speaker 01:
But the court is invoking the exception noted in Bullcoming and Melendez-Diaz for clerk certificates.

[00:21:31] Speaker 01:
And in Melendez-Diaz, the court expressly says that a clerk certificate is prepared for litigation.

[00:21:38] Speaker 01:
But because all it's doing is authenticating a copy, it nevertheless is non-testimonial.

[00:21:43] Speaker 02:
Right.

[00:21:43] Speaker 02:
But the reason you've got a serious Bullcoming

[00:21:46] Speaker 02:
Crawford problem isn't it is that what you're trying to get in is painters testimony and those exhibits that came in and you know his photos taken through by using the celebrate all of that was prepared for trial and in this case the certification was as well there's nothing there that wasn't prepared for trial

[00:22:03] Speaker 02:
The text messages themselves and the calls and all of that was not prepared for trial that was extracted That was the evidence was extracting that from the phone and what we have in the declaration I don't mean to interrupt, but if you can speak to the issue it seems to me that the certification in fact even if it had been Admitted or completely read what it says is that he was?

[00:22:24] Speaker 02:
present or in proximity

[00:22:27] Speaker 02:
when the text were extracted.

[00:22:31] Speaker 02:
So I can't even tell if he did it himself.

[00:22:34] Speaker 01:
I think the answer is yes, based on the rest of the certificate where he talks about taking the phone out of the vault and the rest of what happened with the different extractions and taking the pictures.

[00:22:43] Speaker 01:
I may be wrong, but I'm pretty sure he was the one doing all of this.

[00:22:46] Speaker 02:
My point is just that it seems like there was fertile ground for cross-examination there, and there was not an opportunity to cross-examine here.

[00:22:52] Speaker 01:
So let me just, I know I'm out of time.

[00:22:55] Speaker 01:
I'll just make two brief points.

[00:22:57] Speaker 01:
I think one is that the messages themselves were created by Palacios.

[00:23:02] Speaker 01:
They weren't created for litigation.

[00:23:03] Speaker 01:
All the agent did was pull them off the phone.

[00:23:06] Speaker 01:
So I think that's analogous to creating a copy.

[00:23:08] Speaker 01:
But the second point is that

[00:23:09] Speaker 01:
I think the rules provide a safeguard to deal with this situation.

[00:23:13] Speaker 01:
So Rule 902.14 says that if you want to use the certificate, you have to comply with Rule 902.11.

[00:23:19] Speaker 01:
Rule 902.11 says you have to give an advance notice so that the opponent has a reasonable opportunity to challenge the certificate.

[00:23:26] Speaker 01:
If they had challenged the certificate, then I think that very well could have resulted in either having to admit the certificate or calling Agent Painter himself.

[00:23:35] Speaker 01:
But the fact that we had a concession that they agreed we could utilize this process, I think, is why you never had these challenges that you're talking about.

[00:23:43] Speaker 01:
But I think the rules take into account that situation.

[00:23:47] Speaker 02:
Thank you.

[00:23:48] Speaker 01:
Thank you.

[00:23:49] Speaker 02:
Thank you, Council.

[00:23:50] Speaker 02:
I'll give you another minute.

[00:23:59] Speaker 03:
Your Honors, I would like to start with the idea that we conceded, essentially, that these, by not objecting to 902.14, we conceded that these messages were Mr. Palacios's messages.

[00:24:13] Speaker 03:
Not so.

[00:24:14] Speaker 03:
902.14 makes very clear that it only goes to whether the government has to introduce additional evidence in order to prevent, to keep from drawing an authentication objection.

[00:24:24] Speaker 03:
The commentary says it doesn't go to confrontation.

[00:24:26] Speaker 03:
It doesn't go to relevance.

[00:24:28] Speaker 03:
And here, the government used the content of this message to lay the entire foundation for these text messages.

[00:24:34] Speaker 03:
Additionally, I think the government has placed a lot of emphasis on this Umberto picture.

[00:24:43] Speaker 03:
But critically, that is not a part of the text messages.

[00:24:48] Speaker 03:
It is a separate picture.

[00:24:49] Speaker 03:
It's a separate exhibit.

[00:24:50] Speaker 03:
And without Agent Painter, there is no evidence that that came from the same phone as the text messages.

[00:24:56] Speaker 03:
Thank you, Your Honors.

[00:24:57] Speaker 00:
Thank you very much, Council.