[00:00:00] Speaker 04:
It is now in session.

[00:00:02] Speaker 04:
Please be seated.

[00:00:06] Speaker 04:
Good morning, everyone, and welcome to the Ninth Circuit.

[00:00:09] Speaker 04:
Judge Desai and I are very pleased to welcome our colleague, Judge Marquez, who is joining us today from the District of Arizona.

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We have two cases that have been submitted today.

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Those are United States versus Lopez Garcia and United States versus Harvey II.

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Our first case for argument this morning is United States versus Murad, and counsel, you can approach when you are ready.

[00:00:40] Speaker 03:
Good morning, Your Honors.

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May it please the Court, Devin Burstein, on behalf of Ms.

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Murad.

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Your Honors, as this Court has repeatedly held, quote, if the evidence that someone else committed the crime is in truth calculated to cause the jury to doubt, the Court should not attempt to decide for the jury that this doubt is purely speculative and fantastic, but should afford the accused every opportunity to create that doubt.

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Here, Your Honors, in excluding the mechanics written confession, the district court denied Ms.

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Murad that opportunity.

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This was error under rule 804B3 that undermined her constitutional right to present a complete defense based on third party culpability.

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Equally problematic was the district court's error in allowing the government to play

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a material witness's deposition testimony with no showing at trial of unavailability.

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As this court held in Mattis Zias, quote, the district court committed plain error by admitting the deposition testimony into evidence without any showing by the government at trial that the material witness was unavailable.

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Here, because the government did not

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and could not establish unavailability at trial.

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Admission of the deposition testimony violated Ms.

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Murad's rights under the Sixth Amendment's Confrontation Clause.

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Your Honors, for either or both of these reasons, this Court should vacate Ms.

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Murad's convictions.

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I'm happy to address the issues, the two issues we've raised in either order, but if the Court doesn't have a preference, I'll jump into

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the written confession.

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You can proceed in the order that you wish.

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Would you like to reserve any time for rebuttal?

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I'll do my best to watch the clock and keep two minutes.

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OK, great.

[00:02:43] Speaker 03:
Thank you very much, Your Honor.

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Beginning with the mechanics confession, it was admissible and should have been admitted as a statement against interest, as Judge San Martino indicated in her tentative in limiting rulings.

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There are three requirements

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under Rule 804B3.

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The declarant must be unavailable, the statement must tend to subject the declarant to criminal liability, and there must be corroborating circumstances indicating the statement's trustworthiness.

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As we've discussed in our briefs, the statement here fulfills all three requirements.

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Beginning with unavailability, for all intents and purposes, as a practical matter,

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we know Mr. Patello would be unavailable at trial.

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But we don't even need to reach that because the district court assumed unavailability as the government conceded in its briefing and based his decision, this is Judge Robinson now, on the other two prongs under 804B3.

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But to address unavailability, it's important to indicate first that we know in practice what would have happened had he shown up

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The judge would have appointed counsel for him, as the government asked for the other witnesses, and what always happens.

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And no counsel in his or her right mind would let Mr. Botello take the stand and confess to a crime, a federal felony, conspiracy, to smuggle undocumented people.

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That just wouldn't happen.

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So as in the Fifth Circuit's Thomas case, to quote, the existence of the Fifth Amendment privilege and Mr. Botello's right to assert it are patent.

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Another problem.

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with the government's unavailability argument is really, that's a trial issue, which is exactly what Judge San Martino noted in her, in Lemonade rulings.

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What Judge Robinson should have done is said, well, let's see if he shows up at trial, if that was the concern.

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But it wasn't because everybody assumed unavailability.

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And that's why Judge Robinson.

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Let me ask you a question about the corroborating circumstances issue because I think that's the tougher issue for you for you here.

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So the district court seems to me considered

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relevant factors.

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It noted that there was no evidence showing that the officer was actually an officer, that the witness's name was written inconsistently.

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The government argued that Botello's testimony about fixing the tire contradicted its expert witnesses' findings that the tire was never fixed.

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So what are the corroborating circumstances that indicate the trustworthiness?

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Okay, so this court typically considers four factors.

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That's under slaughter in a variety of cases.

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But before I get to the fourth, and I'll walk the court through the four factors for reliability, but before I get there, there's an overarching point that's kind of missed, which is this guy has no motive to fabricate.

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It's not like he's sitting in jail and he's trying to curry favor with a prosecutor.

[00:06:01] Speaker 00:
There's no- But counsel, I don't think that that's the issue because, yes, he must not, maybe he has no motive, but the district court has to weigh the evidence and make sure, or be the gatekeeper and make sure that you're going to present something that's

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authentic and has been authenticated, that's trustworthy, that has been corroborated.

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So thus the four factors and I think that's where I'm having an issue with this is this wasn't signed before a notary, it could have gone before a notary in Mexico where they could have signed it, it could have been, so many other things could have been done to make sure that

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This was a trustworthy document.

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Right.

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And I take Your Honor's points, but I think that it's almost a little bit of a cart before the horse problem, because what I think Your Honor is hitting on is exactly what should have happened at trial.

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Your Honor used the word authenticate.

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This is not about whether it necessarily would have come in at trial.

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This is whether it was admissible under the hearsay rule.

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An investigator, as the defense lawyer at the time indicated, would have to testify.

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to authenticate the document.

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And then the government could have raised all of those points that your honor just did.

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It wasn't this, it wasn't that, or what happened.

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The investigator would have had to authenticate the document for it to come in.

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But that's a separate question.

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And that's the whole point.

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Why do we have jury trials?

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We expect our system credits 12 regular people.

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with the ability to sort through it all.

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The point is not, as Your Honor indicated, to gatekeep, yes, but not to stop the jury from doing its job.

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The government could make all of these points, but it would have had to come through the investigator who signed the document.

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Judge Thomas, you raised the idea about the name being switched.

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His idea is on it with the right name.

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I mean, I think that's a total red herring of an argument.

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It was signed in front of multiple witnesses, including the investigator who would have had to testify to authenticate it.

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So that in and of itself makes it incredibly reliable, because that guy is the one who's going to have to sit there and answer questions.

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Did he say this in front of you?

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Yes.

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What did he say?

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This.

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When did he say it?

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There.

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Where were you when this statement was taken?

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All that has to happen at trial for.

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Why didn't it happen before the district court judge?

[00:08:37] Speaker 03:
Great question.

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And that's exactly the problem, because the procedure.

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Well, I'll answer the question.

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The procedure of history here, when that lawyer walked into court after the trial was moved to Judge Robinson, he was walking in with a grant from Judge Sammartino.

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He walked in blind to Judge Robinson switching that.

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switching his eliminate ruling, no lawyer would be prepared to say, all he said was the investigator is prepared to testify.

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There was no indication that Judge Robinson, there was no written order, there was nothing counsel be prepared to address this issue.

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He was thinking it's coming in, and then Judge Robinson switches it at the last moment.

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There's no reason for him to have prepared all of this other stuff.

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He was relying on Judge San Martino's tentative rulings.

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So it's almost,

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I don't want to use the word sandbagging because that has a negative connotation, but you can understand being in the defense lawyer's shoes, walking into court, and all of a sudden Judge Robinson switches things.

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You're not going to be prepared to make all of these arguments, but with some space and some time.

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We're making the arguments now.

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And again, all of that should have happened before the jury.

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I'm not saying the government couldn't have made proper authentication objections or anything.

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But that's not what's before the court.

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What's before the court is 804b3.

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And we satisfy all of those requirements.

[00:10:06] Speaker 03:
I see I have 30 seconds.

[00:10:09] Speaker 03:
I think it is important to use them, though, to continue on your honor's question, Judge Thomas,

[00:10:14] Speaker 03:
So there are multiple witnesses.

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Corroborating evidence comes in multiple forms.

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It comes with a color copy of the ID.

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There's no reason, the government had this early in the case.

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They could have investigated this.

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And the most important thing is this letter matches up very closely with the facts of the case.

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Sure, anybody can nitpick some things, but if we look at what the letter said and what the testimony was, there is no way

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This letter could have been written by somebody who didn't know the facts of this case.

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It is flatly impossible, and that in and of itself is the greatest corroboration.

[00:10:53] Speaker 04:
We'll give you a minute on rebuttal.

[00:10:55] Speaker 03:
Thank you so much.

[00:11:04] Speaker 01:
Morning, Your Honors.

[00:11:04] Speaker 01:
May it please the court, Amy Wong for the United States.

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This court should affirm the district court's decision to exclude a hearsay letter purportedly written by a mechanic in Mexico that was not an abuse of discretion.

[00:11:21] Speaker 01:
And it should also affirm the conviction because the district court did not plainly err when it allowed in the material witness deposition after the government had established that the material witness was unavailable for trial and Morad had multiple opportunities to object to the admission and did not.

[00:11:38] Speaker 04:
Okay, so tell me where the record demonstrates the government's reasonable efforts to procure Rosales Flores for the actual trial date, which was March 22nd.

[00:11:50] Speaker 01:
So in the government's, in Lumine filings, the government explained

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that at the deposition, we gave Murad a subpoena package.

[00:12:01] Speaker 01:
The subpoena.

[00:12:02] Speaker 00:
The motion and Lemony hearing was held over a month before the trial date, correct, when they referred to the video deposition of the material witness.

[00:12:17] Speaker 01:
Yes, Your Honor.

[00:12:18] Speaker 00:
So why would they not do it closer to trial with the new trial date?

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What happened there?

[00:12:25] Speaker 01:
So I'll get to that.

[00:12:28] Speaker 01:
Just give me a little bit of background.

[00:12:30] Speaker 01:
They gave the subpoena package at the deposition back in November.

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Then before the first trial date was set,

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the government gave an updated package to the Matt Witt's counsel, expecting that the counsel, as promised at the deposition, would get in contact with his client and forward the information to the client to return back to the United States.

[00:12:52] Speaker 01:
What is not in the record, but because your honor had asked, is that Matt Witt's counsel replied that they had lost contact with their client, that the phone number had disconnected and there was no other way to reach them.

[00:13:04] Speaker 00:
But that's nowhere, okay, that is nowhere in the record and neither judge was informed of that information.

[00:13:12] Speaker 01:
Is that correct?

[00:13:15] Speaker 01:
That is correct.

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And it's nowhere in the record because, again, defense counsel did not object.

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It was widely accepted.

[00:13:22] Speaker 02:
Isn't it the government's responsibility to prove unavailability even if the defendant doesn't object?

[00:13:27] Speaker 01:
Yes, Your Honor, it is.

[00:13:29] Speaker 01:
In this case, to distinguish our facts from Metisias, we do have a record of attempts, reasonable attempts, to reach the material witness and that everyone accepted that the material witness was unavailable.

[00:13:44] Speaker 04:
But there's nothing on the record about an attempt to procure the witness for the actual trial date.

[00:13:53] Speaker 04:
I understand that we have things on the record with respect to the February.

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trial date, but that's not when the trial took place.

[00:14:02] Speaker 04:
So, I mean, that's what I'm struggling with.

[00:14:03] Speaker 04:
You can tell us that, you know, there's some background information that we don't see on the record, but that, I mean, obviously we can't consider that.

[00:14:10] Speaker 01:
Yes, Your Honor.

[00:14:11] Speaker 01:
And even under that, even with the record that we do have,

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It's distinguished from Matizai as we do have some record of attempts to reach the material witness, but at the end of the day, Matizai is still affirmed because under the, whether it's the harmlessness or the, under the plain error

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prong of affecting the fairness and integrity of trial.

[00:14:35] Speaker 01:
There was also nothing in the record that would suggest the material witness had anything different to say, that the material witness was available, that had the material witness shown up, they would have testified differently from trial.

[00:14:48] Speaker 01:
And that's why under plain error, the government still prevails here, because defense counsel had an opportunity to object.

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We had an opportunity to develop the record

[00:15:00] Speaker 01:
and avoid error, but because defense counsel did not, and we still have some record- Right, but as Judge Desai just noted, that you're misplacing the burden in this case.

[00:15:10] Speaker 04:
I mean, you're misplacing the burden here.

[00:15:12] Speaker 04:
I don't see any evidence that the government put in before the district court about Rosales Flores' unavailability for the actual trial date, and I don't see any findings by the district court as to unavailability

[00:15:27] Speaker 04:
I don't see how that's not plain error under Mattis Zayas.

[00:15:31] Speaker 04:
And Mattis Zayas, we affirmed, but there Mattis Zayas hadn't alleged that the witness was available.

[00:15:39] Speaker 04:
And here you have Murad really vigorously disputing Rosales Flores' unavailability for trial.

[00:15:49] Speaker 01:
Your Honor, again, based on the record that we do have, there was no indication that the material witnessed Rosales Flores was available.

[00:15:58] Speaker 00:
But that's not the standard.

[00:16:00] Speaker 00:
I mean, the standard has to be that there is indication that the material witness was available because of the statements that were made at the deposition, that he promised to appear.

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that he had an actual attorney that was in contact with him.

[00:16:21] Speaker 00:
There's nothing in the record that says that the attorney lost contact with him.

[00:16:27] Speaker 00:
The record before us shows that the material witness had an attorney that had been in contact with him.

[00:16:33] Speaker 00:
There were parole documents in place to allow him to come back.

[00:16:39] Speaker 00:
There was nothing to indicate that he would not come back.

[00:16:43] Speaker 00:
He promised he would come back at the deposition.

[00:16:46] Speaker 00:
So I don't see where there is anything in the record where he was unavailable, which is different from Mathis Sias.

[00:17:00] Speaker 01:
Well, Your Honor,

[00:17:03] Speaker 01:
Perhaps because he had parole letters for prior trial dates that he was able to come back and he still didn't, the lack of his absence on those prior dates

[00:17:15] Speaker 01:
can be inferred that he's unavailable and has lost contact with his family.

[00:17:20] Speaker 00:
Or you can infer that his lawyer told him the trial was continued, or you don't need to come for this trial.

[00:17:25] Speaker 00:
They're going to set it up for another trial date.

[00:17:28] Speaker 00:
I mean, that's why he has a lawyer to tell him when the trial date is.

[00:17:32] Speaker 00:
And there's nothing that shows at that point.

[00:17:36] Speaker 00:
I think the government has to make the finding.

[00:17:39] Speaker 00:
It's on the government to say he's unavailable, because you have to assume he is available.

[00:17:45] Speaker 01:
In your honor, based on the government's contacts with the material witness counsel, material witness is represented, his counsel is noticed on ECF, the counsel did not provide the government any affirmative understanding that his client would return for a new trial date.

[00:18:06] Speaker 00:
And that should have been placed, though, on the record before, on the date of the trial or close to the date of the trial at emotion and limiting the day of the trial or the day, you know, days before.

[00:18:17] Speaker 00:
I don't think that was done, was it?

[00:18:20] Speaker 01:
It wasn't done, Your Honor.

[00:18:22] Speaker 01:
But again, it was because defense counsel had no problem.

[00:18:25] Speaker 01:
It was widely accepted that the material witness was not coming back for this trial.

[00:18:32] Speaker 01:
And so turning back to the mechanics letter,

[00:18:35] Speaker 01:
Your honor, this letter was clearly unreliable and Judge Robinson reviewed it with the appropriate level of skepticism.

[00:18:45] Speaker 01:
As your honor noted, the author got his own name wrong.

[00:18:49] Speaker 01:
It was undated.

[00:18:50] Speaker 01:
It was supposedly verified by two witnesses.

[00:18:55] Speaker 01:
But again, those witnesses in turn themselves were not verified.

[00:18:59] Speaker 01:
They didn't provide declarations.

[00:19:00] Speaker 01:
They didn't provide IDs, contact information.

[00:19:03] Speaker 01:
The police officer didn't even identify the municipality or precinct that he was stationed for.

[00:19:08] Speaker 01:
As the district court appropriately found, the signatures of these purported witnesses don't establish in any meaningful way that the letter

[00:19:17] Speaker 01:
was particularly reliable.

[00:19:20] Speaker 01:
Beyond that, the only cooperation of the letter's details is Ms.

[00:19:24] Speaker 01:
Murad's own self-serving statements.

[00:19:27] Speaker 01:
And other than the reference to a killer opener, which it doesn't appear that anyone knows what that means, it doesn't raise any new details that were not previously known to investigators or produced in discovery.

[00:19:40] Speaker 01:
Lastly, to address briefly defense counsel's argument in the letter that the letter was translated from Spanish to English, that raises yet another layer of unreliability.

[00:19:53] Speaker 01:
There's no indication who the translator was, if they were certified, if they were qualified, if the mechanic was given a chance to review the accuracy of the translation or even understood what he was signing when he signed an English letter.

[00:20:10] Speaker 01:
Turning to the other two points under 804B3, the mechanic was unavailable by design.

[00:20:18] Speaker 01:
Defense counsel had never subpoenaed him, didn't ask the government to provide him a parole letter, so he had no opportunity to show up in court even if he wanted to.

[00:20:27] Speaker 01:
And I think that's where the cart is being put before the horse.

[00:20:31] Speaker 01:
Counsel argues that even if he had shown up, he would have invoked.

[00:20:34] Speaker 01:
but ignores the initial step of inviting him, giving him an opportunity to show up.

[00:20:42] Speaker 01:
And under the court's decision in Fally, the unavailability of that witness cuts directly against the likelihood that he would be exposed to criminal liability.

[00:20:59] Speaker 01:
In Fally, the court found that where

[00:21:03] Speaker 01:
Declarant is outside the reach of the United States.

[00:21:06] Speaker 01:
It's unreasonable to believe that they would be subjected to criminal liability, regardless of whether their statement had a tendency to expose them to that.

[00:21:15] Speaker 01:
And so we believe that the court did not abuse its discretion in excluding let error.

[00:21:21] Speaker 01:
It did not plainly error in admitting the Metwood deposition, and we would ask this court to affirm.

[00:21:26] Speaker 01:
Thank you.

[00:21:26] Speaker 01:
Thank you.

[00:21:31] Speaker 04:
I'll give you one minute for rebuttal.

[00:21:32] Speaker 02:
Go ahead.

[00:21:33] Speaker 03:
I just want to make it clear.

[00:21:36] Speaker 02:
I know you only have a minute, so I'm sorry to jump in right at the outset.

[00:21:39] Speaker 02:
But can you address the second two?

[00:21:40] Speaker 02:
Let's assume that we agree with you that there was error and the error was plain with respect to the video deposition.

[00:21:45] Speaker 02:
Can you address the second two prongs, or the last two prongs of the plain error analysis?

[00:21:50] Speaker 03:
Yeah, and I just want to, this might take me over a little bit.

[00:21:52] Speaker 02:
You can answer the question.

[00:21:53] Speaker 04:
Go ahead.

[00:21:56] Speaker 03:
What we just heard about falling out of contact

[00:21:59] Speaker 02:
Yeah, we're not considering that.

[00:22:01] Speaker 02:
That's information that's not in the record.

[00:22:03] Speaker 02:
I really want to understand from you how you think you can satisfy the last two prongs of the plane error analysis, which is whether or not

[00:22:11] Speaker 02:
the error affected your client's substantial rights, and whether the error seriously affected the fairness and integrity of the proceeding.

[00:22:16] Speaker 03:
And I think that the answer to that question, Your Honor, begins at government brief page 45, where the government just says in briefing exactly the opposite of what you just heard.

[00:22:26] Speaker 03:
Here, there is no evidence.

[00:22:28] Speaker 03:
This is a quote from the government.

[00:22:29] Speaker 03:
Here, there is no evidence that Rosales's attorney fell out of touch with his client or that the United States held back contact information.

[00:22:37] Speaker 03:
So there is no evidence.

[00:22:38] Speaker 03:
So that means that to the contrary, we credit the promise to show up.

[00:22:45] Speaker 03:
So if the government had given the correct subpoena with the correct trial date, he would have been able to show up.

[00:22:53] Speaker 03:
That's the operating assumption.

[00:22:55] Speaker 03:
Because they didn't give the correct subpoena,

[00:22:58] Speaker 03:
So we're now sitting in Judge Robinson's court.

[00:23:01] Speaker 03:
They try to put in the deposition testimony.

[00:23:04] Speaker 03:
If the defense objects, Judge Robinson is supposed to say, OK, what good faith efforts did you make to get him here today?

[00:23:11] Speaker 03:
And they don't have it, because they didn't give him a subpoena for the correct trial date.

[00:23:15] Speaker 02:
I still haven't answered my question, which is, how is this a violation of the substantial rights of your client?

[00:23:22] Speaker 02:
And how does it affect the integrity and fairness of the proceeding that there wasn't a finding of unavailability and that the video deposition was allowed?

[00:23:30] Speaker 03:
Because deposition testimony couldn't have come in.

[00:23:33] Speaker 03:
If it couldn't have come in, there was no evidence as to alienage or financial gain.

[00:23:38] Speaker 03:
Those are essential elements of both crimes.

[00:23:41] Speaker 03:
Therefore, he couldn't have been convicted.

[00:23:44] Speaker 03:
The evidence would have been insufficient as a matter of law.

[00:23:47] Speaker 03:
That affects the substantial rights, because there could have been no conviction, and obviously a conviction that, with a mandatory minimum of three years, that results affects the fairness and integrity of judicial proceedings.

[00:24:01] Speaker 04:
Any other questions?

[00:24:02] Speaker 04:
All right.

[00:24:02] Speaker 04:
Thank you very much.

[00:24:03] Speaker 04:
We thank both counsel for their arguments this morning and this case is submitted.