[00:00:03] Speaker 01: Good morning. [00:00:03] Speaker 04: Good morning. [00:00:05] Speaker 01: I'm Mark Hanson. [00:00:06] Speaker 01: I'm the court appointed attorney for Defendant Appellant Soriana Soriano. [00:00:12] Speaker 01: Um, as the court knows, we're here appealing to evidentiary issues and their material effect on the verdicts by way of an overarching sufficiency of the evidence argument. [00:00:24] Speaker 01: Um, I had briefed them in the order of the false testimony of the immigration service officer, and then the, uh, the defendant's, uh, written statement that was made under the Nazemian, uh, line of cases. [00:00:41] Speaker 01: Um, and, uh, unless the court has some particular order that it... Could you address the written statement? [00:00:47] Speaker 00: Yes, sure. [00:00:48] Speaker 00: And let me, let me pose what concerns me about the written statement. [00:00:54] Speaker 00: As I recall, there's, it's a two-step process here, is it not? [00:00:59] Speaker 00: In other words, your, your client is interviewed through a translator, the officer writes down what he thinks is being said, correct? [00:01:09] Speaker 00: Uh, well, yeah. [00:01:10] Speaker 00: And then some time later, your client is confronted with what the officer's written down? [00:01:17] Speaker 00: That's correct. [00:01:18] Speaker 00: In this case, yes. [00:01:19] Speaker 00: Russell, there's a break. [00:01:21] Speaker 00: There's several weeks, I think, between the time. [00:01:25] Speaker 00: And when your client is confronted with what the officer's written down, again, with the translator, she goes through that statement and purportedly adopts it and then says, no, there's a couple of things in it that are wrong. [00:01:39] Speaker 00: So my question is, what does it matter about whether the first translator acted as a conduit or not? [00:01:50] Speaker 00: Isn't the real question here the accuracy of the statement that your client adopted by going through it and saying, I disagree, I agree, et cetera? [00:02:02] Speaker 01: Yes, Your Honor. [00:02:03] Speaker 01: And that's how we briefed it. [00:02:05] Speaker 00: Right. [00:02:05] Speaker 00: So we don't need to worry about whether the first translator was a conduit. [00:02:11] Speaker 00: I don't believe that we need to even worry necessarily at the second. [00:02:14] Speaker 00: OK. [00:02:15] Speaker 00: Thank you, because that's what troubles me. [00:02:18] Speaker 00: So what's the problem? [00:02:20] Speaker 00: with the statement that your client adopts then if we're not worried about whether the second translator is accurately reading it to her. [00:02:29] Speaker 01: It's this process that in the briefing I call the I-Fang-Yi or the I-Fang-Yi process that's being employed in our district now in almost every case and in our district in particular we have a lot of almost everyone is English is the second language and so there's a lot of [00:02:45] Speaker 01: interpretation and translation issues all the time. [00:02:48] Speaker 01: And in this investigative process that basically is now [00:02:54] Speaker 01: copying the procedure that was approved in this Ai Fang Yi case, it's basically a shortcut to getting a confession that the defendant doesn't fully understand and it never actually adopts. [00:03:15] Speaker 01: And then it shields any cross-examination. [00:03:18] Speaker 00: Well, I understand how in another case this might present a real problem. [00:03:21] Speaker 00: I'm just trying to figure out in this case, [00:03:24] Speaker 00: you're not contending that the translation made the second time to your client was wrong or misleading. [00:03:33] Speaker 00: Your client seemed to exhibit understanding of the second translation because she said, no, no, I never said that, whether she said it or not. [00:03:42] Speaker 00: And so I'm trying to figure out in this particular case, whether or not this process may well lead to problems in other cases, but how did it produce a problem in this case? [00:03:54] Speaker 01: Well, one, it produced this statement that is purported to be the statement of Ms. [00:04:01] Speaker 01: Soriano. [00:04:01] Speaker 00: And if she hadn't adopted it, then I would think I'd have some issues with it. [00:04:06] Speaker 00: But she went through it and said, yes, it's [00:04:09] Speaker 00: indicated her assent to it. [00:04:12] Speaker 01: And the problem with most of it is it's factual, and then it has this one paragraph at the end that basically is the, I knew it was wrong. [00:04:20] Speaker 01: It was wrong, whatever that is. [00:04:22] Speaker 01: And it has these very incriminating professions that she didn't understand. [00:04:30] Speaker 03: But I mean, I have the same question. [00:04:35] Speaker 03: was read out loud to her and she made corrections and then she initialed it and then she signed it so I don't see how we could conclude that she didn't understand it. [00:04:49] Speaker 01: I mean, I would say, understand what? [00:04:51] Speaker 01: Understand that what was it that she was agreeing was wrong? [00:04:55] Speaker 01: Because that's all she's doing, right? [00:04:57] Speaker 01: She's just saying, if you said it was wrong, OK. [00:05:00] Speaker 04: Well, you can argue that. [00:05:01] Speaker 04: That's what lawyers are for in a trial. [00:05:03] Speaker 04: But if she agreed that that was the correct statement of what she had said, then you can argue the meaning. [00:05:12] Speaker 04: The prosecutor can argue what it means, whether it [00:05:16] Speaker 04: But you haven't told us anything that was wrong there. [00:05:22] Speaker 01: You don't like wrong things. [00:05:24] Speaker 01: She didn't say any of that. [00:05:26] Speaker 01: I think the first problem is she did not say any of that. [00:05:29] Speaker 01: So you have this initial interview where there was no testimony by the agent that he remembered her saying that specifically. [00:05:37] Speaker 00: If you were dealing with that, you'd have a different argument. [00:05:41] Speaker 00: The difficulty is he reduces what he thinks she says [00:05:45] Speaker 00: or thinks he's told to writing. [00:05:47] Speaker 00: But before introducing that document, they show it to her, and they have a translator with her, and they go through it line by line. [00:05:55] Speaker 00: And she, I think the record supports the inference that she assented to the fact that portions of this were what she said. [00:06:02] Speaker 00: Some portions weren't, and she identified them. [00:06:04] Speaker 00: So if we're dealing with that, I'm having the same difficulty Judge Thomas is having of dealing with how the underlying practice leads to abuse. [00:06:15] Speaker 01: The court never actually addresses the adopted admission test. [00:06:21] Speaker 01: And it basically is just, if it's signed, it's adopted. [00:06:26] Speaker 01: And I think that that shortcuts what the rules of evidence require. [00:06:30] Speaker 03: You're saying that she didn't understand that by signing it, she was adopting it? [00:06:36] Speaker 03: Is that your argument? [00:06:37] Speaker 03: I don't understand. [00:06:38] Speaker 03: I guess I don't understand. [00:06:40] Speaker 01: Yeah, I think that's the case. [00:06:42] Speaker 01: This is his words, not hers. [00:06:45] Speaker 01: I think we need to start with the fact that this is not her written statements. [00:06:49] Speaker 01: It is his written statement that she's agreeing to. [00:06:52] Speaker 04: She didn't testify, right? [00:06:53] Speaker 01: No. [00:06:55] Speaker 04: OK. [00:06:55] Speaker 04: But I mean, it's not unheard of that defendants testify. [00:06:59] Speaker 04: And they could say at the trial, I didn't say that. [00:07:02] Speaker 04: Or a lawyer can argue you can attack the method that it was taken and saying it's not reliable. [00:07:10] Speaker 01: And that's the Ai Fangyi problem, is we can't. [00:07:14] Speaker 01: Because what happens is, the court said, well, this is Nizami and Ai Fangyi. [00:07:18] Speaker 01: This procedure has been approved. [00:07:21] Speaker 01: We don't have anybody to cross-examine. [00:07:23] Speaker 01: We can't cross-examine. [00:07:24] Speaker 04: You sound to be admissible, but you have, it's, are you saying you can't cross-examine the officer? [00:07:32] Speaker 01: What I'm saying is, yes, exactly. [00:07:35] Speaker 01: We effectively cannot cross-examine in this case and in other cases. [00:07:39] Speaker 04: No, not effectively. [00:07:40] Speaker 04: Can you not cross-examine the officer? [00:07:42] Speaker 01: Can try, but then he just says, whatever's in there, she's in there. [00:07:45] Speaker 00: So your real objection seems to me not to be a confrontation cause problem, but a foundational problem. [00:07:52] Speaker 00: That's important because if we were looking at the effect of a constitutional error, it's different than the effect of an evidentiary error. [00:08:02] Speaker 00: In other words, what you're really saying is that the government didn't prove sufficiently that she really had adopted this statement. [00:08:14] Speaker 01: Well, yes. [00:08:16] Speaker 01: That's the fundamental argument. [00:08:17] Speaker 01: But the reason is because of this procedure, it's short cut. [00:08:22] Speaker 00: But you had the ability to confront the people who testified about her adoption, did you not? [00:08:28] Speaker 00: It was just to say the officer. [00:08:30] Speaker 00: He was there on the stand. [00:08:31] Speaker 01: Yes. [00:08:32] Speaker 01: But I would suggest that that doesn't meet the ability to confront if all he does is say, [00:08:42] Speaker 01: Look at the written statement. [00:08:43] Speaker 00: I don't know you want the same time for a bottle, but what more should the government have been done to demonstrate adoption in your view? [00:08:52] Speaker 01: Well, I mean, there should be some, the court needs to be the gatekeeper of that and test the, not the Nazemian, but they can't put her on the stand. [00:09:01] Speaker 00: So they want to show that she's adopted this statement. [00:09:04] Speaker 00: You're not going to let her testify, obviously, about it. [00:09:07] Speaker 00: So tell me what more they need to show to show adoption. [00:09:10] Speaker 01: They'd have to show the reliability of the statement itself. [00:09:14] Speaker 04: to that that it was adopted in these that there's trustworthiness in the statements not accuracy. [00:09:31] Speaker 01: One minute. [00:09:33] Speaker 01: If I could just address that very briefly. [00:09:35] Speaker 01: Basically, it's an admittedly false statement. [00:09:37] Speaker 01: And we need to start with that. [00:09:38] Speaker 01: The agents under this procedure embed falsities in there. [00:09:42] Speaker 01: But they don't catalog the false statements. [00:09:44] Speaker 01: So what the production at the end is, well, these are the things that she changed. [00:09:48] Speaker 01: But there's no disclosure of all of the things that were intentionally made false. [00:09:56] Speaker 01: So if, basically, by default. [00:09:58] Speaker 00: And I'm sure, Judge, [00:10:00] Speaker 00: Callahan will give you a little bit of time for rebuttal. [00:10:02] Speaker 00: But there is, you have the officer understand, he knows the false things they put in there. [00:10:07] Speaker 01: And he, well, I mean, he basically says, oh, she caught them all. [00:10:11] Speaker 01: But how do we, how do we check that? [00:10:12] Speaker 01: Because what, all, all of what, all of what, there are some, there, there are, there are questions in there that, and that, that's when you say, Judge, you, you're the gatekeeper of this. [00:10:22] Speaker 01: What, where is the catalog of the falsities that were potentially embedded in there for this accuracy check? [00:10:29] Speaker 01: Because now we're getting in more of the scientific, I mean, and I would say that this is a challenge to the Nazemian line of cases also, indirectly, is we're getting into the accuracy of the statement itself by embedded falsities. [00:10:44] Speaker 01: And you need a check on that. [00:10:46] Speaker 01: There has to be like a, the master one. [00:10:48] Speaker 00: Yeah, and what I'm trying to figure out, maybe you can think about this before rebuttal. [00:10:52] Speaker 00: is whether your position means they just can't do this at all or there is some other evidence they should have put in to show the accuracy of the statement but failed to do so. [00:11:04] Speaker 00: You don't have to answer that right away. [00:11:06] Speaker 04: I'm going to give you two minutes for rebuttal. [00:11:07] Speaker 04: Thank you, Your Honor. [00:11:22] Speaker 06: Thank you. [00:11:24] Speaker 06: Good morning. [00:11:25] Speaker 06: My name is Bruce Berline. [00:11:26] Speaker 06: I represent the defendant appellant. [00:11:31] Speaker 06: That is a long story, Your Honor. [00:11:33] Speaker 06: It does not. [00:11:35] Speaker 06: I have been trying to correct that. [00:11:38] Speaker 06: I have not knighted. [00:11:42] Speaker 06: Can I call you Mr. Berlein? [00:11:42] Speaker 06: You certainly may. [00:11:44] Speaker 06: Appropriately. [00:11:44] Speaker 06: Yes. [00:11:46] Speaker 06: Go ahead then. [00:11:46] Speaker 06: All right. [00:11:48] Speaker 06: I would like to reserve two minutes. [00:11:50] Speaker 06: I'd like to discuss two harmful errors, the admission of co-conspiracy statements and the limitation on my cross-examination. [00:11:57] Speaker 06: And maybe if we get to it, Nazemian. [00:12:01] Speaker 06: Quickly, the co-conspirator statement that came in through Hosen, who admitted that he committed perjury several times, lied to a federal agent, lied to the prosecutors, lied about an $8,000 contract in order to set everybody up to get him a T visa. [00:12:19] Speaker 06: He brings in co-conspirator statements of Ms. [00:12:22] Speaker 06: Soriano. [00:12:24] Speaker 00: So is it your argument that [00:12:27] Speaker 00: there wasn't a sufficient foundation laid to show that he was part of the conspiracy. [00:12:32] Speaker 00: I mean, because the fact that he's lied in the past, as I think we learned in New York a couple of weeks ago, doesn't disqualify him as a witness. [00:12:42] Speaker 00: So why was his statement [00:12:44] Speaker 00: insufficient, why was the evidence insufficient to show that he was a co-conspirator? [00:12:48] Speaker 06: Absolutely. [00:12:49] Speaker 00: And I could, I could go, I'm prepared to go through all the statements that, that they claim Mr. Kahn said through Hosen, through... No, no, but I think the question, the predicate question is, was he a co-conspirator so that, so that Mr. Kahn's statements could be introduced through him? [00:13:10] Speaker 00: Absolutely. [00:13:11] Speaker 00: So tell me why there wasn't sufficient evidence to show away who is a co-conspirator. [00:13:14] Speaker 04: Because that's an exception to the hearsay rule. [00:13:16] Speaker 00: Yes, absolutely. [00:13:17] Speaker 04: As opposed to Ms. [00:13:19] Speaker 04: Soriano's statement couldn't be admitted because you can't cross-examine Ms. [00:13:24] Speaker 04: Soriano. [00:13:25] Speaker 04: Correct. [00:13:25] Speaker 04: But if statements that are made as part of the conspiracy, there are certain prima facie things that have to be shown. [00:13:33] Speaker 04: And if those are shown, then I think what Judge Hurd was just saying, the fact that someone's a liar or not, that's what you make those arguments, but that doesn't [00:13:44] Speaker 04: if they meet the prima facie case that they were made pursuant to the conspiracy, then they come in as an exception to the hearsay rule. [00:13:51] Speaker 06: Absolutely. [00:13:51] Speaker 06: And that's my fault for bringing that in. [00:13:53] Speaker 06: I didn't mean to say that's part of the test. [00:13:55] Speaker 06: It's that we know what the test is. [00:13:57] Speaker 06: It's Bordelais. [00:13:58] Speaker 06: The government has to show there's a conspiracy, the defendant's knowledge of and participation in the alleged conspiracy, and the statement was made during and further into the conspiracy. [00:14:10] Speaker 06: The judge nor the prosecutor ever [00:14:14] Speaker 06: made that finding. [00:14:16] Speaker 06: The only thing that the judge made was that the statements were made during the conspiracy. [00:14:23] Speaker 06: She said, oh, was that statement made during the 2018 meeting? [00:14:28] Speaker 06: It was. [00:14:28] Speaker 06: It was confirmed. [00:14:29] Speaker 06: Yes. [00:14:30] Speaker 06: She goes, oh, it was made during the conspiracy. [00:14:32] Speaker 06: It comes in over my strenuous objection. [00:14:35] Speaker 06: There was no finding. [00:14:38] Speaker 06: of a conspiracy and that Khan knowingly and willingly participated in it. [00:14:45] Speaker 06: Zero. [00:14:49] Speaker 06: So that's the big problem here is there's been no finding. [00:14:54] Speaker 06: And so, okay, so let's assume quickly that [00:14:58] Speaker 06: That was error. [00:15:00] Speaker 06: We're back to, was that error harmless? [00:15:02] Speaker 06: That's right. [00:15:03] Speaker 00: That was going to be my second question. [00:15:04] Speaker 00: Yes. [00:15:05] Speaker 00: Your client's statement seems to be a lot less incriminating than Ms. [00:15:10] Speaker 00: Soriano's statement, because it's already well established by the record that he knows Soriano. [00:15:16] Speaker 00: They've signed the same document. [00:15:19] Speaker 00: That document shows that they're trying to find a job for these three people and that he's paid, put aside the agents back and forth on what payment means, and that he's paid Soriano a fee to do this. [00:15:32] Speaker 00: But it doesn't, there's nothing in it that establishes that he knew this was wrong or that there was something wrong in it. [00:15:39] Speaker 00: So even assuming the statement was improperly introduced, why was it prejudicial? [00:15:48] Speaker 06: We're back to the harmless, right? [00:15:51] Speaker 06: It's like, OK, under our case law in Bailey, the court has to presume that's error. [00:15:58] Speaker 00: No, if you're not dealing with a constitutional error, then part of your burden is not only to show error, but to show that it was prejudicial. [00:16:07] Speaker 00: So tell me why this statement was prejudicial. [00:16:11] Speaker 00: In light of a record that showed that your client [00:16:14] Speaker 00: well, at least in the light most favorable for the government, that your client had, without authorization, signed a document showing that these people had jobs at some place. [00:16:23] Speaker 06: Actually, there's very little evidence that he actually signed it. [00:16:26] Speaker 06: The only evidence that comes from? [00:16:27] Speaker 06: Little is enough, though. [00:16:29] Speaker 06: Yeah. [00:16:29] Speaker 06: OK. [00:16:29] Speaker 06: But so what I always want to fall back on, and I'm trying to answer your question, Your Honor, [00:16:38] Speaker 00: I know you think we're supposed to presume error, but I think in the non-constitutional area, it's your burden to show error. [00:16:45] Speaker 00: In the constitutional area, it's the government's burden to show there's not error beyond a reasonable doubt. [00:16:51] Speaker 00: So let's assume for a moment you have to convince me that this was prejudicial. [00:16:55] Speaker 00: Tell me why it was. [00:16:57] Speaker 00: With the Soriano statements, you mean the Soriano statements? [00:17:01] Speaker 00: No, I mean Mr. Kahn's statement, the one that you think shouldn't have come in. [00:17:10] Speaker 06: I don't necessarily think. [00:17:12] Speaker 04: Do you think Mr. Kahn's statement? [00:17:14] Speaker 04: The conspiracy statement. [00:17:16] Speaker 00: I'm sorry, I meant to Mr. Kahn. [00:17:17] Speaker 00: The co-conspirator's statement. [00:17:20] Speaker 00: Yes, that's Ms. [00:17:20] Speaker 00: Soriano, right? [00:17:23] Speaker 00: OK, do that. [00:17:24] Speaker 00: And then I want to get back to Kahn's. [00:17:25] Speaker 00: That was what I was trying to ask you. [00:17:26] Speaker 06: OK, I mean, I think it's just her statements were basically, yeah, if I have it. [00:17:33] Speaker 00: OK, her statements are quite damaging. [00:17:36] Speaker 00: So I said my question wrong. [00:17:38] Speaker 00: Let me ask it again. [00:17:40] Speaker 00: As to Mr. Kahn's statement, let's assume it wasn't properly admitted. [00:17:44] Speaker 00: Was it really prejudicial? [00:17:46] Speaker 06: You're talking about the Mr. Kahn's statement when he had the three-hour conversation with Agent Jonas over the phone? [00:17:52] Speaker 06: Yes. [00:17:52] Speaker 06: And that was translated? [00:17:53] Speaker 00: Yes. [00:17:54] Speaker 06: OK. [00:17:54] Speaker 00: Because all he really says in that is, I sent these people to Mr. Soriano to help them get visas. [00:18:01] Speaker 00: Yeah. [00:18:01] Speaker 00: And I think, I mean, frankly. [00:18:03] Speaker 00: Which is not really a contested matter in this case. [00:18:07] Speaker 06: Yeah, I don't think, I mean, it intertwines with this, what's wrong with the co-conspirator statement. [00:18:13] Speaker 00: Okay, fair enough. [00:18:14] Speaker 00: But on its own, you don't think, there's not much to it, is there? [00:18:17] Speaker 06: No, in fact, I think that goes into, there's no evidence that he's involved in this conspiracy. [00:18:23] Speaker 06: His only statements were like, yeah, you want to renew your CW-1? [00:18:28] Speaker 06: Go see Ms. [00:18:29] Speaker 06: Soriano. [00:18:29] Speaker 00: So now let's go back to the contract. [00:18:32] Speaker 00: okay tell me what evidence there is that he actually signed that somebody says [00:18:39] Speaker 00: he doesn't have any authority to sign that contract, so there's evidence about that. [00:18:43] Speaker 00: I'm trying to look at the document. [00:18:47] Speaker 00: I'm not sure I've got it in the record. [00:18:48] Speaker 00: But what do you think the government didn't establish that he signed it? [00:18:52] Speaker 00: That's ER-713. [00:18:54] Speaker 00: Thank you. [00:18:55] Speaker 06: The only person that really could say that is Ernest, is Ms. [00:19:00] Speaker 06: Ernest, Mayor Louisa Ernest. [00:19:02] Speaker 06: She's the one that way later, [00:19:06] Speaker 06: from Kanoa Resort, pulled him in as an employer to ask him, hey, what about this contract? [00:19:14] Speaker 06: And she specifically states, or admits, I asked him if he signed it and he did not answer. [00:19:22] Speaker 06: Now, she then asked him, [00:19:25] Speaker 06: did you have authorization to sign it? [00:19:27] Speaker 06: And he said, no. [00:19:29] Speaker 06: So there's a little bit of implication, right? [00:19:32] Speaker 00: Are those two enough for a jury to find that he signed the document? [00:19:37] Speaker 06: No. [00:19:38] Speaker 06: I don't think so. [00:19:39] Speaker 06: And more importantly, it's not enough to bring him into this conspiracy to, number one, to prove the case, and, number two, to allow Ms. [00:19:48] Speaker 06: Soriano's co-conspirator statements into evidence, because you can't meet the Bourdeau Lake test. [00:19:55] Speaker 06: is there a conspiracy, and was the defendant involved, and did he knowingly and willfully participate in? [00:20:01] Speaker 06: Those statements are out. [00:20:03] Speaker 00: Again, we go back to... The Soriano statement doesn't come in in your trial. [00:20:07] Speaker 06: That's right, and it's error. [00:20:09] Speaker 06: So then we're apt to, again, the burden switches to the government. [00:20:13] Speaker 06: What's the persuasive evidence that overcomes that to make that non-harmless? [00:20:17] Speaker 06: The only thing is the contract. [00:20:20] Speaker 06: That's all they have. [00:20:21] Speaker 06: your honor okay so let's talk about the contract the contract a lot of problems number one we don't know when the contract was ever created now we do have a date of a signature right which is incredibly important we don't know that he signed it but there's a date there and so we know that that contract must have been made before the signature [00:20:51] Speaker 06: There's no evidence about who wrote the contract. [00:20:54] Speaker 06: More importantly, there's absolutely no evidence that Mr. Kahn knew what this purported contract was going to be used for. [00:21:04] Speaker 06: Absolutely none. [00:21:06] Speaker 06: And in fact, what we do know is that the purported contract was signed on September 30th, 2018. [00:21:13] Speaker 06: That's after the petition was sent and received and filed by USCIS in August of 2017. [00:21:22] Speaker 00: Maybe I'm wrong in my recollection of the record. [00:21:26] Speaker 00: So I understood that USCIS initially said, we need more information. [00:21:31] Speaker 00: That's, that's right. [00:21:32] Speaker 00: And this was sent, it was, am I wrong in thinking that this contract was sent in response to that request to USCIS? [00:21:40] Speaker 00: It was, it was attached. [00:21:42] Speaker 06: But the problem is, is that the purported contract was signed [00:21:50] Speaker 06: and assumably made before that RFE was ever sent and received by RES. [00:21:59] Speaker 06: So unless Mr. Kahn could predict the future, that can't be evidence of his involvement in the conspiracy or evidence that I made this contract for the purposes of satisfying the RFE by USCIS because [00:22:20] Speaker 06: The RFE hadn't even been sent yet when this thing was signed. [00:22:26] Speaker 06: And the government's response to this, it's a huge timeline problem. [00:22:32] Speaker 06: And we made that argument in the Rule 29 motion to dismiss. [00:22:36] Speaker 06: And the judge is like, tell me about willfulness. [00:22:39] Speaker 06: How is Mr. Kahn willfully made? [00:22:40] Speaker 06: And the government comes in and goes, and about the timeline. [00:22:43] Speaker 06: And the government comes in and goes, oh, [00:22:46] Speaker 06: Well, a reasonable juror could assume that the purported contract was backdated and forged. [00:22:55] Speaker 06: In order, it's backdated to meet the RFE, right? [00:22:58] Speaker 06: So they get rid of that. [00:23:00] Speaker 06: There's absolutely no evidence of forgeries or backdates. [00:23:03] Speaker 06: In fact, if it was forged, then Mr. Kahn is really off the hook, because that means somebody came in and forged his signature. [00:23:11] Speaker 06: It's illogical. [00:23:14] Speaker 04: All right, you've gone over your time. [00:23:16] Speaker 04: Okay. [00:23:17] Speaker 04: So I'll give you two minutes for rebuttal. [00:23:19] Speaker 06: Thank you very much. [00:23:19] Speaker 04: Good morning. [00:23:29] Speaker 02: Good morning. [00:23:30] Speaker 02: It may please the court. [00:23:31] Speaker 02: Albert Flores for the United States of America. [00:23:36] Speaker 02: This court should affirm the district court's rulings and convictions for both of the appellants, both Ms. [00:23:42] Speaker 02: Soriano and Mr. Cahn. [00:23:45] Speaker 02: And if I may, I'll start with responding to the area that the court questioned Ms. [00:23:50] Speaker 02: Soriano's case on. [00:23:53] Speaker 04: So I guess on the Nazimian analysis, [00:23:59] Speaker 04: Was it done in both the cases or was it just done in Soriano? [00:24:05] Speaker 04: I'm just curious, what are you required to prove? [00:24:09] Speaker 04: What is the government's burden and what is the defendant's burden in terms of? [00:24:17] Speaker 04: Gathering from all of this, the argument is that this is a common practice that's going on out where all of you practice. [00:24:27] Speaker 04: And the question is, we have Nazimian, but is what you're doing complying with that? [00:24:36] Speaker 04: So I'm just wondering if the facts of this case might warrant publication to say they do or they don't. [00:24:47] Speaker 02: So the Zemmian factors, the language conduit concept, is a threshold question for how the evidence gets admitted. [00:24:55] Speaker 02: First with Soriano, yes, the law was applied there by the district court judge. [00:25:02] Speaker 02: She issued a memorandum decision on the issue, twice doing so. [00:25:05] Speaker 02: applying the Nazimian factors and for Sariano's case in particular it's closely analogous to the Afanye case which this court decided another language conduit matter and in that case was even originated from the same judge chief judge Ramona Manglonia from the the district of the Northern Mariana Islands same thing [00:25:32] Speaker 02: a telephonic interpreter used and the Nazimian factors were applied. [00:25:38] Speaker 00: Tell me who's, Judge Callahan asked and I'm interested too, whose burden it is to make a record as to these factors? [00:25:47] Speaker 00: Is it your burden to establish them in order to get the statement in or is it the burden of the other side to raise evidence that they don't exist? [00:25:57] Speaker 00: Because I'm not sure what I see in this record [00:26:01] Speaker 00: that allows me to make those conclusions. [00:26:03] Speaker 00: Tell me what evidence was entered in this record that gives me some assurance that we've met the factors. [00:26:10] Speaker 02: Well, when the government's witnesses testify, the questions are laid for the foundation to establish those factors. [00:26:18] Speaker 00: But the government's witnesses in this case don't know how good a translator is on the other side. [00:26:25] Speaker 00: They don't speak the language. [00:26:26] Speaker 00: Well, they know they've called up somebody from the list of people that the government gives them, right? [00:26:32] Speaker 02: Well, sure, Judge, but the agent that is doing the interview does have some reliance on the fact that the telephonic translator service is contracted by the United States government. [00:26:43] Speaker 00: OK, so that's something. [00:26:44] Speaker 02: There's some reliability there. [00:26:46] Speaker 00: That's something. [00:26:47] Speaker 02: What else does he have? [00:26:48] Speaker 02: Well, so then the agent speaks with the translator, and they have the interview. [00:26:55] Speaker 02: And in both the Soriano and Conn cases, those two defendants both speak English. [00:27:02] Speaker 00: So that's something else, is it? [00:27:04] Speaker 02: They had the opportunity, the means to say, hey, I have a problem with the translation, something is not clear. [00:27:09] Speaker 02: There's three people involved in the interview. [00:27:11] Speaker 02: You have the defendants or the person that's being investigated. [00:27:15] Speaker 02: the interviewer, the agent, and the translator. [00:27:19] Speaker 02: And none of these persons ever raised their hands and said, wait a minute, wait a minute, there's confusion over what's being said. [00:27:26] Speaker 02: The testimony from the agent actually was, I think it went quite smoothly, is the way he characterized the interview. [00:27:33] Speaker 02: So the agent is able to rely on the effectiveness of the translation that's being conducted, because it's contracted by the government. [00:27:41] Speaker 02: There is never any issues raised by any of the persons involved with the interview. [00:27:45] Speaker 02: And the persons being interviewed speak English. [00:27:49] Speaker 02: So there is certainly reliability there. [00:27:52] Speaker 03: Are all four of the Nizamian factors met in Soriano's case? [00:27:57] Speaker 03: Yes. [00:27:58] Speaker 03: Tell me what evidence goes to the fourth factor in particular. [00:28:01] Speaker 03: What actions did she take? [00:28:03] Speaker 03: subsequent to the conversation that were consistent with the interpreted statement. [00:28:08] Speaker 02: So take into consideration how the events unfolded. [00:28:12] Speaker 02: So first you have an interview with Soriano on a certain date and then a few weeks later another interview takes place. [00:28:19] Speaker 02: The second interview that takes place is the meeting where the agent has brought a statement that's prepared that had summarized the interview that was already given. [00:28:31] Speaker 02: So the interview, the confession that was already obtained and a date prior. [00:28:36] Speaker 02: And then at that second meeting, that's where the agent goes line by line with Ms. [00:28:43] Speaker 02: Soriano to make sure that it's crystal clear that she understands what was written down, and to obtain her acknowledgement, the statement was accurate. [00:28:55] Speaker 02: She initials in English, she makes corrections in English, identifying that there was no errors in the statement. [00:29:04] Speaker 00: and one of the methods there's a translator involved [00:29:09] Speaker 00: That's correct. [00:29:10] Speaker 00: And it's a different one than the first one. [00:29:12] Speaker 02: That is correct, because when the agent calls this 800 number, there is a random person that's assigned, whoever the person is that's on call for this language service. [00:29:22] Speaker 02: So the agent doesn't know the person on the other end, and there's no evidence, there's nothing on the record that the interpreter actually participating knew any of the persons involved or had any reason to be biased whatsoever. [00:29:35] Speaker 02: uh... but the actions taken subsequent to the to the statement your honor so is there is there uh... an element that you're required to prove the translator does not have a motive to distort is that part of it one of the factors that could one of the nazim factors consider is that that the court uh... should assess whether or not [00:29:58] Speaker 02: There is a reason for the interpreter to be biased or have a reason to distort the translation. [00:30:07] Speaker 04: This is just a standard procedure that's used with different people each time. [00:30:13] Speaker 03: Yes, yes, and so. [00:30:16] Speaker 03: But I'm still curious about, yeah, the fourth factor. [00:30:18] Speaker 03: I can see how what you're saying goes to the third one, that she initials the statements, seems to go to the qualifications and language skill. [00:30:27] Speaker 03: I'm just unsure. [00:30:27] Speaker 02: Sure. [00:30:29] Speaker 02: So, Your Honor, I would say, again, for the Nazemian factors, you take into consideration all four [00:30:34] Speaker 02: all four factors, not one as dispositive, just because you meet one. [00:30:38] Speaker 02: Right, I was going to say maybe it doesn't matter whether. [00:30:40] Speaker 02: Well, I was going to say one is the totality of the factors, right? [00:30:45] Speaker 02: Okay. [00:30:45] Speaker 02: Taking everything in as a whole. [00:30:47] Speaker 00: Is it your argument that the second interview is the fourth factor? [00:30:51] Speaker 00: In other words, they're checking up on the accuracy of the initial statement. [00:30:55] Speaker 00: The problem is it's the second statement you're introducing. [00:30:58] Speaker 00: not the initial well that the second interview is a written statement summarizes the first so that the but did you do i guess this judge tom questions separately did you do anything other than what you've already described which may be enough to verify the accuracy of the second state the one that you saw and and so again i would anchor on on the point that [00:31:25] Speaker 02: None of the three persons involved in the process. [00:31:27] Speaker 02: The interpreter... No, no. [00:31:29] Speaker 00: Look, it's just maybe I'll be okay. [00:31:31] Speaker 00: Sometimes you get a statement and then you say, okay, let's check it out. [00:31:34] Speaker 00: She says she drove her car to the post office that day. [00:31:38] Speaker 00: We've got surveillance video. [00:31:39] Speaker 00: She drove her car to the post office that day. [00:31:42] Speaker 00: It may or may not matter. [00:31:43] Speaker 00: I'm just trying to find out as a matter of fact, did you do anything to verify the accuracy of the statement that she signed? [00:31:51] Speaker 00: not whether or not there's evidence that somebody acted as a conduit or didn't act as a conduit. [00:31:56] Speaker 00: Was there any independent investigation after the second statement that would make a reasonable observer feel, well, that statement's got to be accurate, because she said some things that we've now verified are true. [00:32:09] Speaker 02: The verification of the accuracy was done contemporaneously with it. [00:32:12] Speaker 02: OK, so the answer to my question is no. [00:32:14] Speaker 03: Right, it's no. [00:32:15] Speaker 03: There's no subsequent. [00:32:17] Speaker 03: It's not like she signed a statement saying I always, I don't know, drive my car someplace at noon and then afterwards she does it and we say the statement's accurate. [00:32:25] Speaker 02: That is fair. [00:32:26] Speaker 04: They didn't meet with her at third. [00:32:29] Speaker 02: I'm sorry, I didn't hear you. [00:32:30] Speaker 04: Did the officer embed any inaccuracies? [00:32:33] Speaker 02: He did, yes. [00:32:34] Speaker 02: So that was one of the techniques that this officer chose to employ. [00:32:39] Speaker 04: That is a method where— What were the embedded inaccuracies, and did Soriano catch them? [00:32:47] Speaker 02: Soriano did catch them. [00:32:48] Speaker 02: There were a number of things that the agent put in the statement that were inaccurate, like dates, dates of birth, and small details that would make it clear to the interviewer that Soriano understood what was being [00:33:05] Speaker 02: what was written down, because if there was something that she did not agree with, she would correct it, and she did. [00:33:09] Speaker 04: And the testimony of the... Okay. [00:33:12] Speaker 04: I don't know. [00:33:12] Speaker 04: I feel like I'm in an alternate world here. [00:33:14] Speaker 04: Isn't that evidence of whether there was an accuracy if she caught things that the officer significantly embedded as being inaccurate? [00:33:24] Speaker 04: Isn't that evidence of the accuracy? [00:33:26] Speaker 02: That is one of the factors, yes. [00:33:27] Speaker 02: Absolutely. [00:33:28] Speaker 04: Okay, well, but you didn't say that, so I don't know why I'm saying it and you're not saying it to me. [00:33:35] Speaker 02: Yes, Judge. [00:33:36] Speaker 02: Soriano identified the errors, and that was one of the mechanisms that the agent used to make sure that the statement was effective. [00:33:47] Speaker 00: So while we're talking about statements, and I know there's two cases here, do the same, and it may not matter, but with respect to Mr. Kahn's statement to the investigators, [00:34:00] Speaker 00: What was done there to... So the process was near identical for... Well, was he confronted with a statement and asked to sign it? [00:34:11] Speaker 02: Mr. Klein did not sign a statement. [00:34:12] Speaker 02: Okay. [00:34:13] Speaker 02: So the agents did the same process. [00:34:16] Speaker 02: They had... I will say in the record, the record does not show that [00:34:23] Speaker 02: Mr. Kahn refused to sign, so the record does not say that. [00:34:27] Speaker 02: But I will say the record shows that the process was the same. [00:34:33] Speaker 00: Was he confronted with the translation? [00:34:36] Speaker 00: The record does not indicate that. [00:34:39] Speaker 00: See, I mean, you do have done a lot of things in Ms. [00:34:42] Speaker 00: Suriano's case to, you know, establish some reliability of the translation. [00:34:51] Speaker 00: In Mr. Khan's case, I don't see any of those things. [00:34:54] Speaker 00: Other than the fact that you called the 800 number and got somebody who was hired by the government to translate. [00:35:02] Speaker 02: There's a significant difference between Khan and Soriano regarding reliability, and that is that Mr. Khan speaks good English. [00:35:09] Speaker 02: So in the record, there is testimony from Ms. [00:35:12] Speaker 02: Ernest. [00:35:13] Speaker 02: Ms. [00:35:13] Speaker 02: Ernest was one of the vice presidents for a company that manages a resort where Halim Khan worked. [00:35:19] Speaker 02: And Ms. [00:35:20] Speaker 02: Ernest testified that one of the requirements to work at the Kanoa Resort, which is where Halim Khan worked, was that Mr. Khan had to speak English. [00:35:27] Speaker 02: So much so that she communicated with him via email. [00:35:31] Speaker 02: Email in English. [00:35:32] Speaker 02: Halim Khan speaks English. [00:35:34] Speaker 02: And so the use of the interpreter by the agent was a conservative measure by the agent just to make sure that there was no confusion. [00:35:42] Speaker 00: What we're talking about, Mr. Khan, could you address your friend's argument that [00:35:48] Speaker 00: there wasn't sufficient evidence to demonstrate that the co-conspirator, that the gentleman who testified about what Mr. Kahn said was a co-conspirator with Mr. Kahn, and Mr. Kahn was involved in the conspiracy. [00:36:02] Speaker 02: Sure. [00:36:03] Speaker 02: Well, so the appellant is challenging the admission of Farouk Hussein's testimony as it pertains to Soriano's statement, and then as it pertains to [00:36:15] Speaker 00: Yes, put aside Soriano's statement. [00:36:17] Speaker 00: I'm talking about the testimony of one of the traffic people, of one of the employees, one of the purported employees, who says this is what Khan said during the course of the conspiracy. [00:36:31] Speaker 02: Well, what Khan said was said to the agent who took the interview. [00:36:37] Speaker 02: And then the agent testified to the party admission of it. [00:36:42] Speaker 00: I'm not worried about what Khan said. [00:36:43] Speaker 04: What is the statement? [00:36:46] Speaker 04: that was offered, it was hearsay, and the exception was that it was made in the furtherance of the conspiracy. [00:36:54] Speaker 04: What statement are we talking about? [00:36:56] Speaker 02: That's what he's asking. [00:36:58] Speaker 02: That's what I was trying to clarify. [00:36:59] Speaker 02: That's the Farooq Hussein testimony as it pertains to Soriano's statement. [00:37:05] Speaker 00: Didn't a purported co-conspirator testify about what Mr. Khan said during the conspiracy? [00:37:13] Speaker 00: No, Judge. [00:37:14] Speaker 02: No? [00:37:14] Speaker 02: So Farouk Hussain testified to what Ms. [00:37:18] Speaker 02: Soriano stated. [00:37:20] Speaker 02: And Halima. [00:37:20] Speaker 00: Let me find the name and see if I can. [00:37:22] Speaker 00: Keep going. [00:37:23] Speaker 00: I'll find the name. [00:37:23] Speaker 04: And Farouk is one of the people that was a beneficiary. [00:37:27] Speaker 02: Uh, he was a beneficiary. [00:37:29] Speaker 02: He also was a cooperating, uh, defendant. [00:37:32] Speaker 02: So he was a person that was charged separately, had pled guilty. [00:37:36] Speaker 02: Okay. [00:37:36] Speaker 04: So the statement that was made in the furtherance of the conspiracy is what Soriano said. [00:37:42] Speaker 02: Yes, Your Honor. [00:37:42] Speaker 04: And what was the statement? [00:37:45] Speaker 02: and that the statements by Soriano to Farouk Hussain that was that Ms. [00:37:53] Speaker 02: Soriano agreed to help the beneficiaries. [00:37:57] Speaker 02: So there was a meeting that occurred with the beneficiaries, the three beneficiaries and Soriano. [00:38:04] Speaker 02: It was a meeting that Halim Khan had set up. [00:38:06] Speaker 02: Khan introduced Soriano to the three beneficiaries. [00:38:09] Speaker 02: At that meeting, [00:38:10] Speaker 02: That's where Soriano says, okay, I will help you. [00:38:14] Speaker 02: This is what we need to do. [00:38:15] Speaker 02: You each need to pay me $900. [00:38:16] Speaker 02: And Soriano also said that I need an employment certificate to include with the petition that was submitted, the fraudulent petition that was submitted. [00:38:31] Speaker 02: But essentially Soriano said to Hussein, I will help, and you've got to pay me. [00:38:37] Speaker 02: And that's the statements that were made. [00:38:39] Speaker 02: And in the midst of the conspiracy, this was at the meeting that took place to put the plan together. [00:38:44] Speaker 02: It was contemporaneous with the conspiracy. [00:38:47] Speaker 00: And Mr. Kahn's counsel says there wasn't sufficient evidence that Mr. Kahn was part of a conspiracy. [00:38:56] Speaker 00: So tell me what the evidence was that Mr. Khan was part of the conspiracy. [00:39:00] Speaker 02: Well, Mr. Khan's name is on the purported contract that was submitted with the petition. [00:39:07] Speaker 02: So government exhibit one, one of the very first things that came in at the trial was the petition that was fraudulently submitted that is the basis of this crime, the crime being that USCIS relied on [00:39:22] Speaker 02: fraudulent documents, fraudulent representations with this petition, and Khan's name is with the petition. [00:39:32] Speaker 02: And so the court was correct when it pointed out earlier that the petition was submitted and then there was a request for evidence that was made by USCIS asking, hey, we need more information. [00:39:42] Speaker 00: And I want to go back to what, there's not a Bruton problem here because Soriano doesn't. [00:39:48] Speaker 00: testify but in order to get around that problem Soriano's statements are brought in through Hussain Hussain contemporaneously with the conspiracy so tell me again I've asked the question maybe in a way that doesn't get through so let me try it again in order for those statements to come through through this witness there has to be not only evidence of a conspiracy but evidence that this person was a co-conspirator [00:40:17] Speaker 02: Soriano. [00:40:18] Speaker 00: Not just Soriano, but the person who's talking. [00:40:22] Speaker 02: Soriano and Hussein. [00:40:23] Speaker 02: Yes, you are correct. [00:40:25] Speaker 00: Okay, so tell me what the evidence is that the person who's talking. [00:40:28] Speaker 02: Well, Hussein is one of the beneficiaries. [00:40:31] Speaker 02: His name is on the petition. [00:40:32] Speaker 00: Okay, is that enough to show that he's a co-conspirator? [00:40:36] Speaker 02: You also have Hussein's admission that we went to Soriano to get help. [00:40:43] Speaker 02: That was a whole purpose. [00:40:44] Speaker 00: That's what I'm trying to find out. [00:40:45] Speaker 00: I'm sorry, we've missed each other. [00:40:47] Speaker 00: So I'm trying to find out what evidence there was that Hussein was a co-conspirator. [00:40:51] Speaker 00: Right. [00:40:51] Speaker 00: And what evidence was there that these other two people were part of the conspiracy. [00:40:56] Speaker 02: The purpose, the very purpose of the meeting was, let's put the plan together. [00:41:01] Speaker 02: Soriano was going to lead this thing. [00:41:03] Speaker 02: She's going to charge everyone money. [00:41:05] Speaker 02: Soriano identifies all the documents that she needs, and Soriano agrees to help. [00:41:09] Speaker 04: Did she say she wasn't going to really give them a job? [00:41:13] Speaker 02: She did indicate that, yes. [00:41:14] Speaker 02: So Rihanna did indicate that there was not an actual job that RES International could provide for the three beneficiaries. [00:41:21] Speaker 00: So can you meet the foundational problem of showing a conspiracy and that the testifying person was a member of the conspiracy through the testimony of the alleged co-conspirator? [00:41:34] Speaker 02: That's one way, and then also keep in mind that the trial court does have the discretion to conditionally admit the testimony with the idea that there could be more foundation laid down the road. [00:41:45] Speaker 00: Was there other foundation down the road? [00:41:46] Speaker 02: That was the testimony of Ms. [00:41:47] Speaker 02: Ernest and also the testimony of Special Agent Jonas. [00:41:52] Speaker 02: And Ms. [00:41:52] Speaker 02: Ernest stated, [00:41:56] Speaker 02: that she confronted Halim Khan with the contract that Ms. [00:42:02] Speaker 02: Ernest recognized was not authorized to be signed and that Halim Khan admitted to Ms. [00:42:07] Speaker 02: Ernest. [00:42:10] Speaker 02: Well, when Halim Khan was confronted with the contract, Halim Khan in response says, let me explain. [00:42:16] Speaker 02: Ms. [00:42:17] Speaker 02: Ernest, please let me explain that I wanted to help my relatives. [00:42:21] Speaker 02: That's what Khan says. [00:42:21] Speaker 02: I wanted to help my relatives. [00:42:24] Speaker 02: And Conn says, I recognize that I was not authorized to sign this document, but I wanted to help my brothers. [00:42:31] Speaker 04: So that came in as an admission? [00:42:34] Speaker 02: That was testimony offered through Ms. [00:42:39] Speaker 02: Ernest. [00:42:40] Speaker 04: But it came in, and it's hearsay, obviously. [00:42:43] Speaker 02: It is, Judge. [00:42:43] Speaker 02: Yes. [00:42:43] Speaker 04: No, it came in as an admission. [00:42:46] Speaker 04: It did come in as an admission. [00:42:47] Speaker 04: Against Mr. Conn, the defendant. [00:42:48] Speaker 04: Yes, ma'am. [00:42:49] Speaker 04: Correct. [00:42:49] Speaker 04: Yes, that's correct. [00:42:50] Speaker 04: But what you're saying is that can support a conspiracy. [00:42:53] Speaker 02: It can, because the trial court does have it. [00:42:56] Speaker 04: But it was entered as an admission. [00:42:59] Speaker 02: Yes. [00:43:00] Speaker 02: And the trial court absolutely has a discretion to rely on testimony. [00:43:06] Speaker 00: But didn't do that in this case. [00:43:08] Speaker 00: She didn't have to. [00:43:11] Speaker 00: So what you're really arguing is that that's icing on the cake, but there was enough before to allow the admission. [00:43:18] Speaker 02: That is correct. [00:43:19] Speaker 02: And so not only did Ms. [00:43:21] Speaker 02: Verma's testimony assist that later, but also Special Agent Jonas' testimony, who testified that Halim Khan admitted to asking Soriano for help with his family. [00:43:33] Speaker 02: So I recognize that I am out of time. [00:43:38] Speaker 04: My colleagues have questions. [00:43:40] Speaker 03: I don't. [00:43:40] Speaker 03: I don't. [00:43:40] Speaker 03: Thank you. [00:43:42] Speaker 04: Take a minute to wrap up. [00:43:45] Speaker 02: Well, Your Honor, I just would say that the government does ask this Court to affirm the convictions of both the defendants, and the government also relies on none of the arguments made today, but also the arguments contained in the brief. [00:43:59] Speaker 04: I do have a question that I'll just, since I've given generous time on the other side. [00:44:06] Speaker 04: At the point that, let's say that you, once you've met [00:44:14] Speaker 04: the Nazimian factors. [00:44:17] Speaker 04: Is there anything out there that says then the burden shifts to the other side to show that there's something wrong? [00:44:26] Speaker 02: Not a shift in the burden, no. [00:44:28] Speaker 04: Do they have any burden to show that? [00:44:33] Speaker 04: I'm hearing all of this, but then I've never heard any evidence here that there was anything that was a misstatement. [00:44:40] Speaker 04: Is there anything in the record that said that there was something wrong? [00:44:44] Speaker 04: I think Mr. Kahn's attorney seemed to think he said, well, I couldn't cross-examine the agent about this, but the agent testified to his statement. [00:44:55] Speaker 04: So was he subject to cross-examination? [00:44:58] Speaker 02: the agent was subject to cross-examination. [00:45:00] Speaker 02: Yes, Your Honor. [00:45:02] Speaker 02: Yes. [00:45:03] Speaker 02: Okay. [00:45:03] Speaker 02: I think that the argument in summary that you're hearing from the appellants is that there's a disagreement with the process. [00:45:10] Speaker 02: That's the words that was used. [00:45:11] Speaker 02: Disagreement with the process. [00:45:13] Speaker 04: And this apparently we've [00:45:17] Speaker 04: We were from another another place than all of you are, and we had a case earlier. [00:45:23] Speaker 04: I think that Mr. We said. [00:45:26] Speaker 04: Apparently where you all come from, they take. [00:45:30] Speaker 04: Immigration violations very seriously because these people were not on the FBI's most wanted list, but nevertheless. [00:45:41] Speaker 04: Other case we had earlier in the week they tried three times for. [00:45:45] Speaker 04: Right for a conviction here. [00:45:48] Speaker 04: We see more dangerous people than these people, but I guess this is a big problem. [00:45:53] Speaker 02: There is certainly immigration challenges in our district, Your Honor, and there are some nuances and some some uniqueness to the district and immigration is certainly one of those challenges. [00:46:04] Speaker 02: OK, so thank you very much for your time. [00:46:12] Speaker 01: Thank you briefly with my additional time. [00:46:14] Speaker 01: One of the problems is that it's not Nizami. [00:46:20] Speaker 01: It's tangentially related, but it is the process. [00:46:22] Speaker 01: But there are inconsistencies in the statement with how it's being presented. [00:46:26] Speaker 01: And it's being misrepresented, and just again, as the statements that Ms. [00:46:33] Speaker 01: Soriano made in March. [00:46:35] Speaker 01: and then signs this in April. [00:46:38] Speaker 01: And there are inconsistencies with what she actually said in March and the statement in April. [00:46:46] Speaker 01: And if they were presenting it as an admission made in April, that would be different. [00:46:54] Speaker 01: But they're not. [00:46:54] Speaker 01: And even in oral argument, he said that these were confessions already taken, right? [00:46:59] Speaker 01: And that's just not [00:47:00] Speaker 01: the case. [00:47:01] Speaker 01: And there are inconsistencies. [00:47:02] Speaker 01: I mean, when she was interviewed in March, she didn't know the names of any of the beneficiaries. [00:47:08] Speaker 01: But then in April, she signs off. [00:47:12] Speaker 01: And he testified, but he hides behind, that's what I'm saying, he hides behind this procedure and says, [00:47:22] Speaker 01: Well, if it's in there, she said it, but then that itself is not believable, but the court is abdicating because of this I find you thing, which is really a Nazimian trust where the accuracy of the translation [00:47:36] Speaker 01: application we're not talking about the translation at this point we're talking about the well sure but now we're arguing to the jury something that shouldn't get in in the first place or that at the very least that the court should [00:47:56] Speaker 01: The court is abdicating the gatekeeping function to this process instead of saying, you know, if the government were being honest and came and said, and the agent said, [00:48:08] Speaker 01: I prepared this statement. [00:48:09] Speaker 01: These are my words, but she agreed to them, and this is an adopted admission, and these are all accurate, and they have been, we did corroborate these with other evidence. [00:48:21] Speaker 01: They're not doing that. [00:48:21] Speaker 01: They're using this procedure to say, well, this is the totality of what she kind of said in March. [00:48:27] Speaker 01: Then we investigated three more weeks or so, and we added a bunch of other stuff, and we clarified some things for her, like everything that she couldn't remember in that. [00:48:34] Speaker 01: Oh, and we added in there just for, [00:48:36] Speaker 01: the jury to hear she thinks it's wrong and You know, she's sorry. [00:48:41] Speaker 01: She'll never do it again, right? [00:48:43] Speaker 01: That's her thing Okay, so I mean Basically, it's it's not in a zemmian. [00:48:50] Speaker 01: It's but it's the court abdicating its gatekeeping function we just like you're honest look at that look at the briefing and and [00:49:00] Speaker 01: see that there has never been any trustworthiness of the statements themselves, as opposed to the accuracy of the translation that is basically short-cutting the whole process. [00:49:10] Speaker 05: Thank you. [00:49:19] Speaker 06: Thank you, Your Honors. [00:49:20] Speaker 06: First of all, the process between [00:49:25] Speaker 06: Miss Soriano and Mr. Kahn is nowhere near the same. [00:49:29] Speaker 06: I don't want to spend a lot of my time on Nazemian, but there's a big problem with Nazemian and Kahn. [00:49:34] Speaker 04: Second... But he speaks English. [00:49:38] Speaker 04: There's testimony that he speaks English. [00:49:40] Speaker 06: That's true, but the court never analyzed the Nazemian factors. [00:49:46] Speaker 06: None. [00:49:46] Speaker 06: She just accepted it. [00:49:48] Speaker 06: Basically, oh, he must have had the power to sit there and go, hey, that's not right. [00:49:53] Speaker 06: But that's not the test. [00:49:55] Speaker 06: Nazemian has specific factors that the court must find, does not have broad discretion under USV Chi. [00:50:01] Speaker 06: USV Chi was a case about, oh, [00:50:04] Speaker 06: do we need a translator in the actual trial? [00:50:06] Speaker 06: No, no, no. [00:50:07] Speaker 06: And then the court said, the trial court has broad discretion to provide a translator. [00:50:12] Speaker 06: Doesn't have broad discretion to conduct the Nazemian factors. [00:50:16] Speaker 06: So that was never done. [00:50:19] Speaker 06: The second thing is the government talks about a meeting that Mr. Hoson and all these guys went to with Soriano. [00:50:26] Speaker 06: Mr. Kahn was never there. [00:50:30] Speaker 06: All Mr. Kahn said basically is, hey, you need a CW-1? [00:50:35] Speaker 06: Go see Miss Soriano. [00:50:37] Speaker 00: That's it. [00:50:37] Speaker 00: But is it Miss Soriano's statements that you object to? [00:50:40] Speaker 06: yes it's not a statement missed that was attributed to mister conn is correct it's i'm sorry and i should have that's that's what i might be my fault that's what you said before that's why i was a little confused miss orion miss oriano's statements came in through mr hosier you're saying there wasn't sufficient foundation for showing absolutely under the appropriate test in bourgeoisie i might be mispronouncing that name but i'm not friends we're pronouncing every other name it seems every i have every case name that i can't pronounce [00:51:10] Speaker 06: But Mr. Kahn wasn't there. [00:51:13] Speaker 06: All this is so attenuated and not really related. [00:51:19] Speaker 06: But the other thing is Mr. Kahn's name isn't with that petition. [00:51:26] Speaker 06: Nowhere. [00:51:27] Speaker 06: Mr. Kahn's name might be on that contract that was created before the RFE was sent and then the RFE was [00:51:38] Speaker 06: stapled, the contract was stapled to the RFE, but there's no indication, first of all there's nothing wrong with that contract, but there's no indication that Mr. Kahn knew. [00:51:48] Speaker 00: There's something wrong with the contract because the person from the resort says whoever signed this contract had no authority to sign it. [00:51:58] Speaker 06: Yes, on the level of Kanoa Resort [00:52:03] Speaker 06: policies sure but again that's so attenuated from this there's actually a reasonable reason for that contract because mister con was a loyal manager of and in charge of renovation and maintenance for that that hotel he had a very small island a very large hotel [00:52:21] Speaker 06: you need that to get these labors on on the on the side that's what that contract was that contract was not a contract it was just basically a like can you hold these guys in there because if we need and we want to call him and and bring up and that was the problem with the cross-examination [00:52:44] Speaker 04: Mr. Khan just wanted to help people out and he wasn't planning to do anything illegal by virtue of doing it. [00:52:51] Speaker 04: They could have found that, but they didn't. [00:52:56] Speaker 04: So they chose to believe other evidence that was presented. [00:53:00] Speaker 04: So that's where [00:53:03] Speaker 06: And that's a sufficiency of the evidence argument. [00:53:06] Speaker 06: Our main problem is finding that the conspiracy works to allow these statements in, and not only that, is the limitation on the cross-examination on a very important issue. [00:53:21] Speaker 06: Verma came in and said, USCIS needs a contract. [00:53:25] Speaker 06: And specifically, USCIS needs a valid contract. [00:53:30] Speaker 06: When I said, well, let's talk about a valid contract. [00:53:33] Speaker 04: Yeah, okay. [00:53:35] Speaker 04: Fair enough, Your Honor. [00:53:37] Speaker 04: Okay, fair enough. [00:53:47] Speaker 06: I would just encourage to look at the findings of the judge, which aren't there, for Nazemian, for the existence of a conspiracy. [00:53:57] Speaker 06: and to allow the Soriano statements in, you won't find any. [00:54:03] Speaker 06: And then take a look at the cross-examination. [00:54:06] Speaker 06: You won't find the appropriate foundation. [00:54:08] Speaker 06: It was error to admit those statements, and it was error to limit the cross-examination. [00:54:13] Speaker 06: Thank you very much. [00:54:14] Speaker 04: Thank you both for your argument. [00:54:16] Speaker 04: This matter will stand submitted, and this court is in recess until Friday at 9 a.m.