[00:00:01] Speaker 00:
morning council morning honors my name's carl gunn I'm representing mr. sotelo I'm going to try to save three minutes for rebuttal and I'll try to keep track of my time thank you counsel your honor say in this case there were first two clear evidentiary errors and impermissible vouching during trial second error in finding mr. sotelo was not eligible for voluntary departure

[00:00:28] Speaker 00:
And third, infringement on one of the most fundamental rights we have in our criminal justice system, the right to a jury trial.

[00:00:36] Speaker 00:
I'll start with the last of those unless the court wants to direct me somewhere else.

[00:00:42] Speaker 00:
The first thing to understand on that issue is that what courts have described as the, quote, tough legal standard, unquote, which has to be met before a juror can be dismissed.

[00:00:54] Speaker 00:
One court has characterized that as equivalent to the beyond a reasonable doubt standard that we apply during trial.

[00:01:01] Speaker 00:
Put colloquially, if I can, you don't mess with a jury once they started deliberating unless you're really sure there's some sort of misconduct going on.

[00:01:11] Speaker 02:
Well, who has to be sure and where?

[00:01:13] Speaker 02:
The district court was sure.

[00:01:15] Speaker 02:
This is a plain error review, right?

[00:01:18] Speaker 00:
No, it's not plain error review, Your Honor.

[00:01:19] Speaker 00:
I think there was a sufficient objection.

[00:01:22] Speaker 00:
I think several times district court counsel made clear that she did not think the juror should be dismissed.

[00:01:27] Speaker 02:
Okay, so the district court has the colloquy with the juror.

[00:01:30] Speaker 02:
Isn't the district court in the best position to determine whether the juror is expressing an unwillingness to follow the law?

[00:01:37] Speaker 00:
Yes, but the district court has to apply that standard where it sort of errs very much on the side of keeping the juror on the case.

[00:01:45] Speaker 00:
And I think the problem here, Your Honor, was

[00:01:47] Speaker 00:
that the district court didn't apply the right standard.

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The question wasn't whether the jury didn't want to be on the jury, whether the jury didn't like the law.

[00:01:57] Speaker 04:
No, but it's whether she's going to do it.

[00:01:59] Speaker 00:
Right.

[00:01:59] Speaker 04:
And you're talking to a couple former trial court judges.

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And you know how hard this is.

[00:02:04] Speaker 04:
Much of it has to do with almost a credibility determination.

[00:02:07] Speaker 04:
Do we really think she's going to be able to do it or not?

[00:02:09] Speaker 04:
And it's the trial court judge who can.

[00:02:11] Speaker 04:
There's this texture that doesn't come through very well.

[00:02:14] Speaker 00:
I understand that, Your Honor, but the problem is

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He didn't ever find that she wouldn't follow the law if he ordered her to do it.

[00:02:22] Speaker 00:
All he found was she didn't want to do it.

[00:02:24] Speaker 03:
He said she couldn't.

[00:02:26] Speaker 03:
At the very end, she said she couldn't follow the law.

[00:02:29] Speaker 00:
Right.

[00:02:29] Speaker 00:
But before that, she said she had concerns.

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She went back and forth.

[00:02:33] Speaker 00:
And the problem is, that was what she talked about only when the judge brought it up.

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The first thing she said, and this goes to the standard of impetus for the jurors' views on the case, the first thing she said were, quote,

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If I couldn't reach a decision or if my decision differed, unquote, quote, do we write, it's not unanimous, unquote, and quote, what if I disagree with them, question mark, unquote.

[00:02:58] Speaker 00:
Those fit right into the impetus of the jury's view.

[00:03:01] Speaker 03:
But the judge went ahead to question her to see what was the crux.

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of her difficulty.

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And that's what trial judges do.

[00:03:10] Speaker 03:
They have to bear down and to see is it really because of her views or is it really because of her disagreement with the law and can she apply the law once.

[00:03:20] Speaker 03:
So if the judge hadn't gone any further

[00:03:23] Speaker 03:
Perhaps you would have a stronger argument, but the judge did go further.

[00:03:27] Speaker 00:
Well, except the judge never asked her, is that what you disagree with the other jurors about?

[00:03:32] Speaker 00:
Because he couldn't.

[00:03:33] Speaker 00:
That's the problem when you're talking about jury deliberations is you can't get into, well, just what are you disagreeing about, et cetera, et cetera.

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And remember, this juror said two other really important things.

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She said she was really concerned about breaking the law, in quotes, and she said she knew she had to follow the law.

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So that's layered on top of these decisions.

[00:03:54] Speaker 03:
Well, being concerned about breaking the law could be interpreted as she didn't want to follow the law.

[00:03:59] Speaker 03:
So that could cut both ways.

[00:04:01] Speaker 03:
And the thing about it is we really are on an abuse of discretion standard review.

[00:04:05] Speaker 03:
Bottom line, when we are looking at whether or not a judge properly dismissed a juror, we're on the abuse of discretion standard review.

[00:04:12] Speaker 00:
It is an abuse of discretion.

[00:04:13] Speaker 03:
So if it could go either way, then the judge has not abused his discretion, correct?

[00:04:19] Speaker 00:
Right, but it's abuse of discretion standard layered on top of that tough legal standard is the problem.

[00:04:25] Speaker 00:
And if there's sort of any hint or any possibility or any reasonable doubt, then maybe it had to do with a juror's disagreement with other jurors about the evidence.

[00:04:35] Speaker 00:
that's what we got to do here and and then you you know it's a really tough argument and i'm wondering if you want to move on to your other arguments i will do that your honor because it's your honor to use not mine the control well it's your time to use it but i think you have other arguments i think that's correct your honor let me move on to the motion to dismiss the the denial of the motion to dismiss um... there's three issues there

[00:05:00] Speaker 00:
First, did Mr. Sotelo's joyriding conviction make him ineligible for voluntary departure?

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Second, did the immigration judge consider voluntary departure and deny it in any event?

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And third, is he barred from raising the claim because he didn't appeal the removal order?

[00:05:18] Speaker 00:
On the eligibility for voluntary departure, there's multiple hurdles the government has to get over.

[00:05:24] Speaker 02:
Can you start maybe with the last of those?

[00:05:26] Speaker 02:
Did he exhaust this claim?

[00:05:29] Speaker 00:
I think there, Your Honor, the point I'm making and what I'm requesting is that I'm not asking for you to outright reverse and find he did.

[00:05:37] Speaker 00:
What I'm saying is should be remanded to the district court for the district court to decide that in the first instance.

[00:05:41] Speaker 00:
Well, why would we remand?

[00:05:41] Speaker 04:
Why would we do that when there's a transcript that says he didn't want to appeal?

[00:05:44] Speaker 00:
Well, because there's issues that come up about whether it was voluntary when he first said he did want to appeal twice.

[00:05:51] Speaker 04:
Yes, and the judge told him what he would need to do and he said, forget it.

[00:05:54] Speaker 00:
Right.

[00:05:55] Speaker 00:
He backed down when he said, oh, you've got to fill out this paper with the yellow highlighting in it.

[00:05:59] Speaker 00:
You won't get it anyway.

[00:06:01] Speaker 00:
And you can't leave right away.

[00:06:03] Speaker 00:
You can leave right away.

[00:06:04] Speaker 00:
Right.

[00:06:04] Speaker 00:
So I think those things combined with the fact that he waffled back and forth means there's some factual issues there that you should get the district court to decide in the first instance.

[00:06:14] Speaker 03:
Even if they weren't exhausted?

[00:06:16] Speaker 03:
You can't get past the exhaustion.

[00:06:19] Speaker 03:
You can't get past the exhaustion issue.

[00:06:21] Speaker 00:
If the appeal waiver wasn't voluntary, yes, that would take it past.

[00:06:25] Speaker 00:
So what I'm saying is you remand for the district court to have a hearing on whether that appeal waiver was voluntary.

[00:06:31] Speaker 00:
There's enough doubt in this record.

[00:06:32] Speaker 04:
I didn't mean to interrupt you, I'm sorry.

[00:06:34] Speaker 00:
No, you interrupt me if you want, Your Honor.

[00:06:36] Speaker 04:
Well, I didn't mean to.

[00:06:38] Speaker 04:
But what you're telling us is you think there's the transcript that I referred to you think is maybe doubtful about whether he voluntarily waived his right to continue to exhaust his administrative appeals.

[00:06:49] Speaker 00:
Correct.

[00:06:49] Speaker 04:
If we disagree with you on that point, this is the third of your 1326D 1234, but if we disagree with you on that part, we're done, right?

[00:07:01] Speaker 00:
Yeah, if you don't want if you don't want the input or think you need the input from the district court having a hearing on it then yes Because the Supreme Court has indicated right you have to satisfy all of the prongs I just want to make sure that we're tracking the same decision tree and

[00:07:17] Speaker 00:
Correct.

[00:07:18] Speaker 00:
There does have to be exhaustion of administrative remedies.

[00:07:20] Speaker 00:
What I'm saying is because the district court didn't decide that and because there's this back and forth in the record, you should remand to the district court for hearing on that in the first instance.

[00:07:30] Speaker 02:
What would that look like?

[00:07:32] Speaker 00:
Well, it would go back to the district court.

[00:07:34] Speaker 00:
There'd be argument about whether it was intelligent and voluntary.

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There might be additional.

[00:07:38] Speaker 02:
Well, we can have that argument here.

[00:07:39] Speaker 02:
So what additional facts do you think you could establish?

[00:07:42] Speaker 00:
Well, there might be some testimony from Mr. Sotelo.

[00:07:46] Speaker 00:
There might be further argument.

[00:07:49] Speaker 03:
Well, after the fact, now that he knows what the repercussions are, certainly his testimony would change.

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But we're looking at the record as it was when it actually happened.

[00:08:01] Speaker 00:
Well, the district judge will be there looking at his demeanor and so on to evaluate it.

[00:08:05] Speaker 00:
There might be other evidence as well.

[00:08:07] Speaker 00:
I don't think I can speculate about everything that might be presented.

[00:08:11] Speaker 00:
You'd have the district court's thoughts and reasoning the same way you have his thoughts and reasoning on the juror issue.

[00:08:20] Speaker 03:
Isn't this an issue of law, though, whether or not there was exhaustion?

[00:08:23] Speaker 00:
No, I don't think so, Your Honor.

[00:08:25] Speaker 03:
I think the question of whether or not he met the legal standard for exhaustion.

[00:08:29] Speaker 00:
But the underlying issue of whether his waiver of appeal was intelligent voluntary is certainly a mixed question at least.

[00:08:37] Speaker 00:
There's certainly factual elements to that.

[00:08:39] Speaker 02:
But the statute puts the burden on Mr. Sotelo.

[00:08:41] Speaker 02:
You've suggested that we should reverse the burden of proof here, but the statute requires Mr. Sotelo to establish to demonstrate that he's exhausted.

[00:08:51] Speaker 00:
On the other hand, there's a case law that I cite in the opening brief that says the government has to prove by clear and convincing evidence that the waiver of appeal was intelligent and voluntary.

[00:09:02] Speaker 03:
What case is that?

[00:09:04] Speaker 00:
I believe I cited on page 28 of my brief, Your Honor.

[00:09:08] Speaker 00:
Let me check.

[00:09:08] Speaker 04:
But that's a general waiver of appeal citation, I think, as opposed to showing that for purposes of 1326.

[00:09:14] Speaker 00:
I think it's in the context of immigration 1326 cases, I believe.

[00:09:19] Speaker 00:
It's United States versus Gomez.

[00:09:21] Speaker 04:
Is it pre- or post-Palomar?

[00:09:23] Speaker 04:
I'm sorry?

[00:09:23] Speaker 04:
Is it pre- or post-Palomar?

[00:09:26] Speaker 00:
It's pre-Palomar, but I don't think Palomar really goes to the issue.

[00:09:31] Speaker 00:
Palomar goes to the issue... We know.

[00:09:34] Speaker 04:
I don't think it goes to the waiver of appeal aspect Well, I think it begs the question about who's got the burden and Does that cover all of the prongs of the test and it clearly covers all the prongs of the test?

[00:09:48] Speaker 00:
I Well, I guess I'm not sure that I think it only a different point about burden.

[00:09:54] Speaker 00:
Yeah, I think I think that it only addresses the

[00:09:57] Speaker 00:
not being informed is enough to make that decision.

[00:10:00] Speaker 03:
Counsel, what case were you citing to?

[00:10:02] Speaker 03:
You said on page 26 of your brief?

[00:10:04] Speaker 00:
Page 28, Your Honor.

[00:10:05] Speaker 00:
United States versus Gomez, quoting United States versus Reyes Bonilla.

[00:10:11] Speaker 04:
What's your strongest argument?

[00:10:13] Speaker 00:
Well, Your Honor, I think all my arguments are strong.

[00:10:15] Speaker 00:
But let me move on to a couple of the evidentiary.

[00:10:18] Speaker 00:
I think both the evidentiary arguments, there was clearly, the rulings were clearly wrong.

[00:10:24] Speaker 00:
On the foreign birth certificate,

[00:10:26] Speaker 00:
It certainly is not the family records exception because it's not a family record.

[00:10:30] Speaker 02:
Why isn't that error harmless though given the other evidence?

[00:10:33] Speaker 00:
Well, Your Honor, this is what defense lawyers call a triable case.

[00:10:37] Speaker 00:
It's a lot more triable than the most illegal reentry cases.

[00:10:42] Speaker 00:
First of all, on the question of citizenship, you don't have a person who is brought here when he's a teenager and can remember living in Mexico.

[00:10:49] Speaker 00:
You have someone who's brought here before any of his life that he can remember.

[00:10:53] Speaker 04:
We appreciate that, the equities of the case.

[00:10:56] Speaker 04:
We do appreciate the equities of the case.

[00:10:57] Speaker 04:
But Judge Johnstone's asking a different question, and it's the same one I've got.

[00:11:02] Speaker 04:
Even if we agree with you on your hearsay argument about the birth certificate, why isn't that harmless error given the other evidence in the record regarding your client's citizenship?

[00:11:12] Speaker 00:
Well, because the other evidence in the record, well, first of all,

[00:11:16] Speaker 00:
It's both the other evidence in the record of his citizenship and the evidence that was there to raise doubts.

[00:11:20] Speaker 00:
The other evidence of his citizenship is his admissions.

[00:11:24] Speaker 00:
But those admissions, one of them, he says, I'm a U.S.

[00:11:27] Speaker 00:
citizen.

[00:11:28] Speaker 00:
The other one he's asked, he says, I don't know, Mexico.

[00:11:33] Speaker 04:
But when he says he's a U.S.

[00:11:34] Speaker 04:
citizen, then, of course, that's the basis of a separate evidentiary, sort of a cul-de-sac off in the corner, where the judge allows him to be impeached on that point, right?

[00:11:45] Speaker 04:
But as to as to this birth certificate and what about your client's admission?

[00:11:51] Speaker 04:
Why isn't that enough?

[00:11:52] Speaker 00:
And I'm not talking about his testimony.

[00:11:55] Speaker 00:
I'm a US citizen I'm talking about a statement in the immigration forms the immigration interviews, but he admit I mean the reason is there's these five different documents that they

[00:12:06] Speaker 00:
offer that purport to say he was born in Mexico or that he's a Mexican citizen.

[00:12:13] Speaker 00:
But in two of those, there's these conflicting statements.

[00:12:16] Speaker 00:
So that's something where a lawyer can argue reasonable doubt.

[00:12:20] Speaker 00:
There's also the fact that

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He's not someone who would remember because he's brought here when he's three months old.

[00:12:28] Speaker 00:
On top of that, there was evidence in the record about this concept of derivative citizenship and the fact that sometimes people don't know they're derivative citizens.

[00:12:37] Speaker 00:
So that doubt or question mark was out there.

[00:12:40] Speaker 00:
The point is, there was stuff for the defense attorney to argue on that.

[00:12:44] Speaker 03:
And counsel, once again, we're on abuse of discretion for an evidentiary ruling, correct?

[00:12:50] Speaker 00:
no here we're here i'm responding to judge johnson's on this year i'm talking about the birth certificate of admission of the birth certificate isn't that an abuse of discretion standard of review as well i don't think it is here because here is an air of law your honor i mean the question error of law that that it's uh... that a government record can come in under the family records exception that's clearly wrong out of the text of the rule the rule says it has to be a family record

[00:13:15] Speaker 00:
So that's really an error of law in interpreting the rule of evidence.

[00:13:19] Speaker 00:
I think the same problem exists with the government's argument about public records exception, which isn't what the district court relied on.

[00:13:26] Speaker 03:
Well, but we can affirm it if it's legally correct.

[00:13:30] Speaker 00:
I agree, but that's not abuse of discretion for two reasons.

[00:13:33] Speaker 00:
First of all, the district court didn't

[00:13:36] Speaker 00:
use that as discretion for that exception.

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And second of all, you have to have a showing that each level of hearsay, including the original reporter, is under a duty imposed by law.

[00:13:47] Speaker 00:
And there's no evidence of that here.

[00:13:49] Speaker 00:
So frankly, under any standard of review, that isn't satisfied.

[00:13:55] Speaker 00:
The hearsay objection isn't satisfied.

[00:13:57] Speaker 00:
There's also the prior convictions coming in.

[00:14:00] Speaker 00:
which i think a very prejudicial in today's climate where you talk about people talk about i see i'm running low on time you are uh... illegal aliens committing crimes all i'll say the rest of my time for a bottle and submit that will give you a

[00:14:15] Speaker 03:
All right.

[00:14:17] Speaker 00:
You know, on the prior convictions, you have this very strong standards about presumption against admissibility, specific facts and circumstances.

[00:14:27] Speaker 00:
Only in exceptional circumstances did they come in.

[00:14:31] Speaker 00:
The probative value has to substantially outweigh prejudice.

[00:14:35] Speaker 00:
There's nothing exceptional about these prior adjoy writing conviction on credibility.

[00:14:40] Speaker 00:
This wasn't a case where we had a swearing contest where Mr. Sotelo was saying this happened and the government witnesses saying that happened and someone had to be lying.

[00:14:50] Speaker 00:
There's no way that this satisfies the strong presumption against admissibility on Rule 609B convictions.

[00:14:58] Speaker 00:
Unless the court has questions, I'll submit and save the rest of my time for rebuttal.

[00:15:02] Speaker 03:
All right.

[00:15:02] Speaker 03:
Thank you, Counselor.

[00:15:04] Speaker 03:
We'll give you a minute.

[00:15:05] Speaker 03:
Excuse me a minute for rebuttal.

[00:15:06] Speaker 03:
Thank you, Your Honor.

[00:15:17] Speaker 01:
All right.

[00:15:17] Speaker 01:
Good morning.

[00:15:18] Speaker 01:
May it please the court, Hava Morel, on behalf of the United States.

[00:15:22] Speaker 01:
I want to begin where Mr. Gunn began, which is the dismissal of juror number five.

[00:15:27] Speaker 01:
First, the standard of review here is plain error.

[00:15:30] Speaker 01:
Ms.

[00:15:31] Speaker 01:
Bonarski did not object at the time that the juror was actually excused, nor did she seek to ask any further follow-up questions, even though the court had explicitly solicited follow-up questions.

[00:15:44] Speaker 01:
I also want to address an omission that counsel continues to make with respect to the court's record and why it dismissed this juror.

[00:15:53] Speaker 01:
And specifically, I would direct the court's attention to one ER 19 to 20.

[00:15:58] Speaker 01:
This is where the court says, I think she disagrees with the law or she has some heartburn about it and she doesn't want to make a decision as a result.

[00:16:07] Speaker 01:
But the counsel omits this next sentence, which is critical.

[00:16:11] Speaker 01:
And the sentence is, and I think that goes against this instruction, specifically whether you agree with the law or not.

[00:16:17] Speaker 01:
That is the court's express finding that juror number five is not able to follow the law as instructed, and therefore there was just cause to dismiss that juror.

[00:16:27] Speaker 01:
Finally, I think

[00:16:28] Speaker 01:
with respect to what Judge Kristen said, there actually is a lot of texture that comes along in this district court transcript.

[00:16:35] Speaker 01:
And here we see a district court really mindful of its obligation to keep the juror on if the problem was that the juror had a difference of opinion on the evidence.

[00:16:47] Speaker 01:
And I think you see that no less than five times

[00:16:50] Speaker 01:
in this district court transcript where the court says it's okay not to be unanimous and I'm not going to dismiss you if it's because of your difference of opinion.

[00:17:00] Speaker 01:
Those sites are all throughout 1ER 11 through 1ER 13 and there are five instances in which the court says that.

[00:17:08] Speaker 01:
Unless the court has further questions I'll move on to the motion to dismiss under 13-2016.

[00:17:15] Speaker 01:
To answer Judge Johnstone's question, yes I believe

[00:17:18] Speaker 01:
If we decide that he has waived his appellate rights, that ends the inquiry in this court.

[00:17:26] Speaker 01:
Because he didn't exhaust its administrative appeals.

[00:17:28] Speaker 01:
Correct.

[00:17:28] Speaker 01:
He did not exhaust its administrative revenues.

[00:17:31] Speaker 01:
No remand is necessary.

[00:17:32] Speaker 01:
There's nothing further that needs to happen to supplement the record other than what's in the transcript before the immigration judge.

[00:17:39] Speaker 01:
I'll also note the impracticality of remand in this case, given that this defendant has finished serving his sentence, and he has presumably been deported and is not permitted to be back in the United States.

[00:17:51] Speaker 01:
But aside from that, the record shows that this defendant voluntarily waived his right to an appeal.

[00:17:57] Speaker 01:
He was told about his right to appeal.

[00:18:00] Speaker 01:
He was given specific instructions.

[00:18:01] Speaker 01:
He indicated that he had read those specific instructions, that he understood his rights.

[00:18:07] Speaker 01:
He showed he understood his rights by first asking to exercise his right to appeal.

[00:18:10] Speaker 01:
And then when he asked the court a question and the court gave an accurate response about his

[00:18:16] Speaker 01:
eligibility for relief, that's when the defendant decided to withdraw his appeal.

[00:18:21] Speaker 02:
What do you say to Mr. Gunn's citation of Gomez with respect to who has the burden of establishing knowing and voluntary at this stage?

[00:18:29] Speaker 01:
We agree with Judge Christin that it is his, under Palomar Santiago, it is the defendant's burden to show that he exhausted administrative remedies.

[00:18:39] Speaker 03:
Okay.

[00:18:39] Speaker 03:
So once we get to the next layer about whether or not it's voluntary,

[00:18:44] Speaker 03:
So he's saying he exhausted, adequately exhausted, because he didn't voluntarily waive.

[00:18:49] Speaker 03:
So who has the burden at that point?

[00:18:51] Speaker 01:
We maintain that it's the defendant's burden to show that he exhausted administrative remedy.

[00:18:56] Speaker 01:
If there is an issue of voluntariness, and there is not an issue here at all, then we would show that it was voluntary.

[00:19:04] Speaker 03:
So do you agree that it would be the government's burden at that point?

[00:19:06] Speaker 01:
Yes.

[00:19:09] Speaker 01:
And unless the court has further questions about the motion to dismiss, I'll move on to the next issue raised by defense counsel which was the admissibility of the birth certificate.

[00:19:24] Speaker 01:
I want to address first the standard of review again.

[00:19:26] Speaker 01:
It's a plain error standard of review here.

[00:19:29] Speaker 01:
This is very clear on the record that defendant only objected to the authentication element of the birth certificate.

[00:19:38] Speaker 01:
He did not raise the hearsay objection.

[00:19:40] Speaker 01:
And the case cited is Gomez-Norena, where she's saying that you fail to preserve an evidentiary issue by making the wrong.

[00:19:49] Speaker 01:
specific objection, which is exactly what happened here.

[00:19:52] Speaker 01:
Any references to hearsay were all in connection with the defense counsel's concern about authentication.

[00:19:59] Speaker 01:
And I think under this court's precedent in Pintado y Sordia and Duarte, this birth certificate is plainly admissible and was correctly admitted.

[00:20:09] Speaker 01:
It had the certification that said that it was a matter observed pursuant under duty of law.

[00:20:16] Speaker 01:
And there is no question on students.

[00:20:18] Speaker 02:
But what was the matter observed?

[00:20:20] Speaker 02:
Not the birth.

[00:20:21] Speaker 02:
There are no witnesses on it.

[00:20:23] Speaker 01:
Well, the keeping of the record is something.

[00:20:25] Speaker 02:
Well, yeah, then we're back to that.

[00:20:29] Speaker 02:
That may be an exception to hearsay for purposes of establishing the documents chain of custody, but we're trying to establish an event that is at least three steps removed from what is certified, are we not?

[00:20:44] Speaker 01:
Yeah, I would direct the court's attention to Duarte in this case.

[00:20:48] Speaker 01:
And I recognize that it's unpublished.

[00:20:49] Speaker 01:
But Duarte looked at a birth certificate as well as a form I-181 and said, this form I-181 has all these different levels of hearsay, but did not raise that same issue with respect to the birth certificate.

[00:21:04] Speaker 01:
And Quintado y Sordia tells us that so long as that certification exists, so long as we can be assured that the state of Guerrero in Mexico has a system and laws that govern its acceptance of birth records and its distribution of birth records, then we can be assured.

[00:21:19] Speaker 02:
There was that proof of law established or taken as judicial notice for us to rely upon in terms of exactly what Guerrero does.

[00:21:28] Speaker 01:
In the certification, that's actually that we screenshot it into our brief.

[00:21:33] Speaker 01:
that's where the authority to maintain those records came.

[00:21:39] Speaker 01:
And I think as a matter of just taking a step back, if we go into like the practical consequences.

[00:21:43] Speaker 02:
Was that introduced in the district court?

[00:21:45] Speaker 01:
Yes, it was on the actual birth certificate itself.

[00:21:47] Speaker 04:
So it was on the exhibit.

[00:21:49] Speaker 04:
I didn't mean to interrupt you.

[00:21:50] Speaker 04:
Were you finished?

[00:21:54] Speaker 04:
Yeah.

[00:21:54] Speaker 04:
It's a little bit slippery and I can understand why the government or why the district court sort of folded this into business records because we're talking about a foreign document and in a criminal case we don't have to worry about the administrative regs that go specifically to this question.

[00:22:12] Speaker 04:
It seems like what you're arguing is that this document is, and this is why it begs the authentication question, that this document is what Mexico, or one part of Mexico, accepts as proof of birth.

[00:22:32] Speaker 04:
Yes.

[00:22:33] Speaker 04:
Right?

[00:22:33] Speaker 04:
And that's the certification.

[00:22:34] Speaker 04:
This is what they say.

[00:22:35] Speaker 04:
They accept as proof of birth.

[00:22:40] Speaker 04:
And I don't know how that differs from any birth certificate that we would see admitted in this country.

[00:22:46] Speaker 04:
I'm sorry.

[00:22:47] Speaker 04:
I think I'm missing your honor's question.

[00:22:49] Speaker 04:
That's because I haven't asked one.

[00:22:52] Speaker 04:
I'm trying to figure out whether you're making authentication argument.

[00:22:55] Speaker 04:
Well, I think they're conflating authentication and the hearsay objection.

[00:23:00] Speaker 04:
And authentication with, I think what opposing counsel is talking about is just hearsay and whether or not this is really a business record, that it's a regularly conducted activity.

[00:23:14] Speaker 04:
This hospital or this prefecture memorializes birth certificates sort of in this way.

[00:23:21] Speaker 04:
And I can't figure out which one you're responding to.

[00:23:23] Speaker 01:
Well, I heard you're on our state business record.

[00:23:25] Speaker 01:
And I just want to ensure that the court knows that we're proceeding under the public record.

[00:23:29] Speaker 01:
Forgive me.

[00:23:29] Speaker 01:
Yeah.

[00:23:30] Speaker 02:
But who is under a duty to report the birth, then?

[00:23:33] Speaker 02:
I mean, American birth certificates often have a doctor.

[00:23:37] Speaker 02:
There are witnesses who are under a duty to report the birth.

[00:23:39] Speaker 02:
And that's not true of this document.

[00:23:42] Speaker 01:
Your Honor, yes, we do cite the Northern District of California case that does include the secondary source.

[00:23:46] Speaker 01:
And granted, that has no authoritative weight in this court.

[00:23:50] Speaker 01:
But the reason that fact is not developed is because this was not raised before the district court.

[00:23:53] Speaker 04:
But what is your argument about why this is admissible?

[00:23:57] Speaker 04:
Forget plain air for a minute, because I just want to make sure that I'm tracking your argument about why this was admissible.

[00:24:02] Speaker 01:
Well, Your Honor, I think that if we take a broader step, the fact that the question under 803.18 is whether it's a matter observed pursuant to duty imposed by law.

[00:24:13] Speaker 01:
And presumably, the civil registry is governed by laws and regulations that say we can only accept certain notifications

[00:24:19] Speaker 01:
or not, and that.

[00:24:21] Speaker 01:
You say presumably, I think that's Judge Johnstone's point.

[00:24:24] Speaker 04:
So if this were a birth certificate, domestic birth certificate, it would still say, you know, Providence Hospital, and I wouldn't know if the person who signed that was a nun or the lady at the, you know, the person in the records division of the hospital or who it was.

[00:24:36] Speaker 04:
But I would know that it's coming to me from the Bureau of Vital Statistics and the Bureau of Vital Statistics in Alaska accepts that birth certificate as proof of that this birth happened at that hospital on that date.

[00:24:47] Speaker 01:
And I think that the fact that the Bureau of Vital Statistics accepts that, and that suggests that it is authentic and that it is a birth certificate and that it is what it claims to be, and therefore that that person who reported it

[00:25:01] Speaker 01:
the exchange of the person who reports it, but there also has to be a system that accepts it, and the fact that the system that accepts it did accept it.

[00:25:09] Speaker 04:
Exactly.

[00:25:10] Speaker 04:
And so that's what I was trying to get you to sort of circle back.

[00:25:14] Speaker 04:
I mean, in that way, I don't think this document is any different than a domestic birth certificate.

[00:25:18] Speaker 04:
It's got the certification that you mentioned that indicates that in Mexico, this is sufficient.

[00:25:24] Speaker 04:
That's correct, Your Honor.

[00:25:25] Speaker 03:
I also think- Doesn't Pintado make that very point that the record of birth, which was issued by the government of Nayarit, Mexico, is self-authenticating?

[00:25:35] Speaker 03:
Doesn't that make that very point?

[00:25:37] Speaker 01:
That's why I led with Pintado, Esordia, and Duarte, I think, govern this case.

[00:25:41] Speaker 03:
But regardless- But Duarte is unpublished, so it can't go- Correct.

[00:25:44] Speaker 01:
But I think its reasoning is relevant to this case.

[00:25:51] Speaker 04:
I also just want to- But you are asking, I think this is all a long road to circle back to Judge Johnstone's question.

[00:25:57] Speaker 04:
You are asking us to assume that in Mexico it's done the same way, and that the certification that we're looking at fills the same gap in this hearsay chain as the one that we would have in a domestic birth certificate.

[00:26:09] Speaker 01:
That's correct, Your Honor, but I think as a matter of practicality, I mean, there are birth certificates from any number of countries, and each country might have its own

[00:26:21] Speaker 01:
requirements for what is or is not included in that birth certificate.

[00:26:26] Speaker 01:
And its admissibility should not turn on whether that specific birth certificate requires that the doctor or nurse who delivered actually puts their name down.

[00:26:36] Speaker 01:
But that's a policy point.

[00:26:38] Speaker 01:
If we just take a step back, we look at harmlessness in this case, really.

[00:26:42] Speaker 01:
Because the defendant admitted five times that he was a Mexican citizen, and three of those times were under oath, and there was no

[00:26:52] Speaker 01:
birth certificate from the United States as deportation officer Singer testified to.

[00:26:58] Speaker 01:
So there is proof beyond a reasonable doubt here in this case that defendant was not a citizen of the United States.

[00:27:04] Speaker 04:
There's a reason we went to harmlessness first.

[00:27:06] Speaker 04:
What is your answer to opposing counsel's argument that there are indications in some of the

[00:27:12] Speaker 04:
places in the record that he perhaps was born in this country.

[00:27:18] Speaker 01:
It's not an unmixed record.

[00:27:20] Speaker 01:
Sure.

[00:27:20] Speaker 01:
I think that those indications, for example, in an interview, he initially made a claim of United States citizenship, but he later retracted that claim.

[00:27:28] Speaker 01:
And I think he did mention in trial, he said, at some point, I'm a US citizen.

[00:27:33] Speaker 01:
That testimony was actually stricken by the court.

[00:27:36] Speaker 01:
So all of those references have no weight compared to the authoritative, clear, I'm a Mexican citizen statements

[00:27:42] Speaker 01:
at SCR 123, 2ER 299, and SCR 119.

[00:27:47] Speaker 01:
Those are all under oath statements.

[00:27:52] Speaker 01:
Unless the court has any further questions with respect to the birth certificate, I'll move on briefly to 609B.

[00:27:57] Speaker 01:
As I see, I'm running low on time.

[00:28:02] Speaker 01:
With respect to 609B, I also want to start with the standard of review here.

[00:28:05] Speaker 01:
This argument is waived, and I think

[00:28:09] Speaker 01:
What's missing from defense counsel's brief is the fact that Miss Benarski actually conceded in this case that the government was entitled to get in the fact of conviction.

[00:28:21] Speaker 01:
And I think the court looks at 2ER24.

[00:28:27] Speaker 01:
That's where Miss Benarski raises the issue of these prior conviction records.

[00:28:31] Speaker 01:
And she says, the government has marked, in terms of prior conviction records, records way beyond what they are entitled to actually get in.

[00:28:39] Speaker 01:
essentially 32 pages.

[00:28:42] Speaker 01:
That's Ms.

[00:28:42] Speaker 01:
Bednarski acknowledging and conceding that the government was entitled to get in the fact of his prior convictions to show his lack of veracity.

[00:28:52] Speaker 01:
And her concern, as evidenced here, was always with the admission of the certified conviction records documenting all of the facts of conviction, not with the admission of the conviction itself.

[00:29:04] Speaker 01:
So when the court addressed Ms.

[00:29:06] Speaker 01:
Bednarski's concern,

[00:29:07] Speaker 01:
and said facts aren't coming in, just the fact of conviction is admissible.

[00:29:14] Speaker 01:
That's when Ms.

[00:29:14] Speaker 01:
Spenarski, does that satisfy the issues you wanted to raise with respect to the convictions?

[00:29:19] Speaker 01:
Yes.

[00:29:20] Speaker 01:
So government's position is that this argument is plainly waived.

[00:29:24] Speaker 01:
Even if this court were to find, though, that it's governed by plain error, there was no procedural error because the district court here did make specific findings of facts and circumstances.

[00:29:36] Speaker 01:
And that's located at 1ER 26 to 27 of the record, where the court said that the fact of the prior convictions were relevant to his veracity and the fact that he made a false statement, and that he was specifically trying to balance the two things, which in this context means the probative value and the prejudicial effect.

[00:29:58] Speaker 01:
And he said it may be a little too much mustard on the hot dog to allow what those convictions actually were.

[00:30:03] Speaker 01:
That's my favorite part of the transcript.

[00:30:08] Speaker 01:
I see I'm running low on time.

[00:30:09] Speaker 01:
Unless the court has any further questions, the government would submit and ask that you affirm the conviction in this case.

[00:30:21] Speaker 00:
On the last point, Your Honor, mustard on the hot dog may be a great expression, but I don't think it rises to the level of specific facts and exceptional circumstances.

[00:30:30] Speaker 03:
Well, but there is a point to that.

[00:30:33] Speaker 03:
defense counsel agreed that the fact of the convictions could be admitted.

[00:30:38] Speaker 03:
Why isn't that a waiver of any argument against the admission?

[00:30:41] Speaker 00:
Because I don't think you can read the record in that way, Your Honor.

[00:30:45] Speaker 04:
If you go back at the record, she says that after— I want to make sure we're following this, because I read it the same way.

[00:30:52] Speaker 04:
Which page of the transcript do you want us to be on, please?

[00:30:54] Speaker 00:
Excerpt 24, ER 24.

[00:30:57] Speaker 00:
she bring what she says yes your honor that bring something up and i was government is way too many records here that it's entitled to a right before that the district court notes

[00:31:07] Speaker 00:
that it's included in the instructions, the instruction on impeachment by prior convictions and its proposed instructions.

[00:31:14] Speaker 00:
I think fairly read, that means that defense counsel simply recognized she lost on the issue of whether the convictions are coming in, and now she wants to limit the damage.

[00:31:25] Speaker 00:
Especially, in fact, in light of the fact that you have a, I don't think you should read an affirmative withdrawal of an objection that the government agrees was made in the exhibit list.

[00:31:35] Speaker 04:
So I started, this transcript starts on page 24.

[00:31:38] Speaker 00:
I'm sorry, I'm talking about excerpt of record page 24.

[00:31:42] Speaker 04:
Right, ER.

[00:31:45] Speaker 00:
ER24, the transcript page is 107.

[00:31:53] Speaker 04:
So I don't want to take a ton of time on this, but ER24 is a transcript.

[00:31:57] Speaker 04:
And then the immediately preceding page, ER23, is the reporter's transcript.

[00:32:03] Speaker 04:
It's the cover page for me.

[00:32:06] Speaker 00:
Right.

[00:32:06] Speaker 00:
And on ER24, which is at the upper right-hand corner of transcript page 107, lines

[00:32:13] Speaker 00:
nine through twelve the court is saying there was a prior conviction instruction in the proposed instructions so i think fairly red that means defense counsel's realizing that her prior written objection in the exhibit list is being rejected and now she's going to try to minimize the damage

[00:32:29] Speaker 00:
by sanitizing what records come in.

[00:32:32] Speaker 00:
I think there's a big difference, Your Honor, between finding a waiver where no objection was ever made and simply assuming that defense counsel withdraws an objection.

[00:32:41] Speaker 04:
I understand your point now.

[00:32:42] Speaker 04:
Thank you for clarifying it.

[00:32:43] Speaker 04:
I don't know why the record appears this way.

[00:32:47] Speaker 00:
I'm sorry.

[00:32:47] Speaker 00:
It's my excerpts, and I pulled the part that was on that issue.

[00:32:52] Speaker 00:
Anyway, I also wanted to... There was some talk about

[00:32:56] Speaker 00:
uh... foreign birth certificates being just like american birth certificates i think you can't simply assume that uh... for one thing this is a mexican birth certificate that's produced three months after the birth so that's not like they do in the united states you know we can't simply assume sometimes sometimes they're delayed sometimes birth certificates are delayed in the united states

[00:33:18] Speaker 00:
But the other thing that's different is in the United States, typically the births in a hospital and there's a doctor there witnessing it who has a duty to report.

[00:33:28] Speaker 00:
I don't think you can simply assume without some evidence in the record that Mexico has a duty to report on whoever happened to report this to the first level of government official.

[00:33:38] Speaker 03:
But once the government issues it, regardless of what the procedures are, once the government issues it, doesn't Pentado say that it's self-authenticating?

[00:33:47] Speaker 03:
We don't go behind the government issuance of a document.

[00:33:52] Speaker 03:
If the government

[00:33:53] Speaker 03:
of any country issues they document, why isn't that self-authenticating at that point?

[00:33:58] Speaker 00:
It may be self-authenticating, but that's a different—authentication's a different question than hearsay.

[00:34:03] Speaker 04:
Well, I think that's right, but when do we ever—to get to Judge Rollinson's point, when do we ever go there beyond what the government has accepted as proof of this birth or this death?

[00:34:15] Speaker 00:
Well, whether the government accepted it for their governmental record-keeping purposes is different than whether it's admissible under the rules of evidence.

[00:34:22] Speaker 04:
I'm asking a question.

[00:34:22] Speaker 04:
I haven't heard an answer.

[00:34:23] Speaker 04:
Is there a time when we have done that?

[00:34:25] Speaker 00:
A time when you've done what?

[00:34:27] Speaker 00:
Said the government accepted it for its record?

[00:34:30] Speaker 04:
Questioned why.

[00:34:30] Speaker 04:
Question whether that is adequate for the government to have accepted as official record for birth or death.

[00:34:36] Speaker 03:
Is there a case where we have gone beyond the government's issues of a document, a foreign

[00:34:43] Speaker 03:
countries, foreign governments issues of a document to go behind that.

[00:34:47] Speaker 00:
Well, Pentato e Sordio, though that was partly because it was, you know, illegible and the cop and- This is why I think we have to kind of tease this apart.

[00:34:58] Speaker 04:
It's not just an authentication question, right?

[00:35:01] Speaker 04:
You're raising this hearsay issue.

[00:35:03] Speaker 00:
Right.

[00:35:03] Speaker 04:
And I can't think of a time when we ever gone where you're asking us to go, which is to second guess a government

[00:35:09] Speaker 04:
document about whether or not it is adequate to prove this fact.

[00:35:14] Speaker 00:
I don't remember the specific facts of Morales, which is the general case, I quote, about each level of hearsay having to have a duty to report.

[00:35:23] Speaker 00:
But I believe the record in Morales, unless it's just setting the general standard, is saying, well, there was a level of hearsay in that document that didn't satisfy the duty to report.

[00:35:34] Speaker 00:
So Morales may be an example.

[00:35:37] Speaker 00:
And I guess what I'm relying on is the plain language of the rule, and the general rule is set forth in Morales.

[00:35:44] Speaker 03:
Would you give me the language in Morales that you're relying on to say we can go behind the government issuance of a document to examine hearsay, the language?

[00:35:56] Speaker 00:
Well, it would be the language I quote in my brief here.

[00:35:59] Speaker 03:
Well, I want to go to the precise language in the case, because this is important.

[00:36:04] Speaker 00:
Well, the language that I have at the tip of my tongue, Your Honor, is the language I quote in my brief.

[00:36:10] Speaker 00:
Let me go to that and refresh my- Well, I'm not seeing this as being- It's statements by third- What page are you on?

[00:36:19] Speaker 00:
Page 32.

[00:36:19] Speaker 03:
Of U.S.

[00:36:21] Speaker 03:
versus Morales?

[00:36:22] Speaker 00:
Yes.

[00:36:24] Speaker 03:
The citation is 720 after 1194?

[00:36:27] Speaker 00:
Yeah.

[00:36:30] Speaker 00:
I'm sorry, I left out the page site there.

[00:36:33] Speaker 00:
But it's statements by third parties who are not government.

[00:36:36] Speaker 03:
It doesn't help me for you to read it if I can't track it in the case.

[00:36:39] Speaker 03:
So I'll find it myself.

[00:36:40] Speaker 03:
I don't think it's in the context, though, of examining a government document for hearsay purposes.

[00:36:48] Speaker 00:
It's talking about the public record exception, I believe.

[00:36:50] Speaker 00:
Beyond that, I don't know.

[00:36:51] Speaker 00:
There's also the Mueller and Patrick treatise, which I cite.

[00:36:54] Speaker 03:
I thought it was talking about the confrontation clause and whether or not it's something that's testimonial.

[00:37:00] Speaker 00:
I could dig it out of my file, but I'm sorry, Your Honor.

[00:37:04] Speaker 00:
I think that's the best I can give you right now.

[00:37:07] Speaker 04:
A specific set of regulations that pertain to immigration cases, foreign records in immigration cases, and I think it is uncontested that those don't apply here.

[00:37:14] Speaker 04:
I don't think either party has raised them here.

[00:37:16] Speaker 04:
Is that correct?

[00:37:18] Speaker 00:
Uh, yeah, the government hasn't made an argument about that, and I haven't gone to look for that, Your Honor, correct.

[00:37:22] Speaker 00:
And that would be, of course, the rules of evidence, I don't think, apply in an immigrant area.

[00:37:26] Speaker 02:
Right, hearsay is allowed to establish them.

[00:37:27] Speaker 04:
It might be really clear that neither of you, um, are invoking those specific rules.

[00:37:34] Speaker 00:
Correct.

[00:37:34] Speaker 00:
I think what governs in, in this trial would be the federal rules of evidence, yes.

[00:37:38] Speaker 03:
Thank you.

[00:37:39] Speaker 00:
Um.

[00:37:40] Speaker 03:
Federal rules of evidence for, for this issue on the, uh,

[00:37:44] Speaker 00:
The public record, which hearsay exception does it come in under, if any?

[00:37:49] Speaker 03:
Okay.

[00:37:49] Speaker 03:
All right, Council, we've taken you way past your time, so could you wrap up, please?

[00:37:53] Speaker 00:
Okay.

[00:37:53] Speaker 00:
I just had note, I think there was a sufficient, I think the hearsay objection on the form of birth certificate was sufficient.

[00:38:00] Speaker 00:
Certainly, the district court recognized there was a hearsay objection because it ruled on the question of hearsay.

[00:38:06] Speaker 00:
Plus, what's the defense attorney supposed to do after the district court says there's a hearsay exception applies?

[00:38:12] Speaker 00:
I mean, the district court had already addressed the issue.

[00:38:16] Speaker 00:
I think I'll submit, I think there was also a sufficient preservation of the jury dismissal.

[00:38:21] Speaker 00:
She expressed three different types of discomfort with the dismissal, and I think that's enough.

[00:38:26] Speaker 03:
All right, thank you, counsel.

[00:38:27] Speaker 03:
Thank you to both counsel for your helpful arguments.

[00:38:29] Speaker 03:
The case just argued is submitted for decision by the court.