[00:00:27] Speaker 00:
Good morning, Your Honors.

[00:00:28] Speaker 00:
May it please the Court, my name is Catherine Kimball Windsor.

[00:00:30] Speaker 00:
I represent Rafael Yeppes and I'm arguing today on behalf of Mr. Yeppes and also on behalf of all nine appellants.

[00:00:38] Speaker 00:
I'd like to reserve five minutes for rebuttal and I'll keep an eye on the clock this morning.

[00:00:43] Speaker 00:
We were last here for argument in this case ten years ago in December 2015.

[00:00:48] Speaker 00:
This Court remanded for fact-finding on the Brady Giglio issue surrounding informant Victor

[00:00:54] Speaker 00:
who at the time we were calling Victor Bulgarian.

[00:00:57] Speaker 00:
And we are back after about six years in the district court.

[00:01:01] Speaker 00:
I expect to focus today on materiality which is the prong of the Brady Giglio case that or a test that we lost in the district court.

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But I thought it would be helpful at the start to review what we've learned about Bugarin since we were last here and what we haven't learned.

[00:01:18] Speaker 00:
And that certainly interplays with the materiality argument as well.

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So in terms of what we've learned since we were last here, we now know his name.

[00:01:27] Speaker 00:
There were a number of different variations that were used in the district court.

[00:01:31] Speaker 00:
He testified under the name Victor Bulgarian.

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We know that he was working as a paid informant in multiple cases for multiple agencies before the 2006 trial.

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The district court found that in its order.

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And this case was a launching pad for what has turned out to be a lucrative career as a professional informant.

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We also know that his motivation for becoming an informant was payment and that he was working for the ATF and giving information prior to his receiving payment.

[00:02:04] Speaker 00:
We also have evidence that he used illegal drugs and there was evidence that law enforcement felt he was not forthcoming and provided selective information.

[00:02:13] Speaker 00:
Defense counsel did not know this, the jury did not hear about it, and the district court correctly found that there was favorable evidence that was suppressed.

[00:02:21] Speaker 00:
What we haven't learned is

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We haven't heard from Bugarin himself.

[00:02:27] Speaker 00:
When we were last here, the issue that plagued us was that his testimony at the second trial, the 2009 trial,

[00:02:34] Speaker 00:
about the benefits that he received differed quite a bit from the government's accounting.

[00:02:40] Speaker 00:
If anything, that gap has gotten wider because the government's accounting for what they paid, Boogerine, has gone down.

[00:02:48] Speaker 00:
It's true that he didn't know for sure what he'd been paid, but he said confidently that he'd received $80,000 and possibly more, possibly much more, even up to $200,000.

[00:03:00] Speaker 02:
And the jury heard him say that.

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

[00:03:04] Speaker 00:
Well, in the second trial, he testified to that.

[00:03:08] Speaker 00:
So at our trial, there was no evidence that he'd received money at all.

[00:03:13] Speaker 02:
Well, wait a minute.

[00:03:15] Speaker 02:
Yes, there was.

[00:03:16] Speaker 02:
He testified that he received some money from the government.

[00:03:19] Speaker 00:
At the first trial?

[00:03:21] Speaker 00:
No, at the first trial, the issue is... Isn't there the $5,000?

[00:03:24] Speaker 02:
Well, there's the relocation, but in terms of... That's money, counsel.

[00:03:28] Speaker 02:
You just said that he... I think that the jury did hear him testify that he had received some relocation funds and they paid for his hotel and...

[00:03:36] Speaker 02:
So I don't think it's correct to say there was no evidence of that.

[00:03:40] Speaker 02:
I think he originally denied, right, anything, and the government had sent a letter indicating, which is a clearly erroneous letter, and it was described as an egregious mistake.

[00:03:49] Speaker 02:
I think there were 130 witnesses at this trial though and the government took responsibility and I'm really doing this so that you can tell me what I'm missing.

[00:03:58] Speaker 02:
My understanding is that that mistake was made and that the government took responsibility for it right away, which was good because this is a serious mistake, but that right there the jury learned that there had been some payments to him in exchange for his testimony.

[00:04:12] Speaker 00:
Well, so what I just finished.

[00:04:15] Speaker 00:
Sorry.

[00:04:15] Speaker 02:
I think maybe it would be helpful to know what the jury did here.

[00:04:18] Speaker 02:
I have a list here.

[00:04:19] Speaker 02:
Yeah.

[00:04:20] Speaker 02:
But right.

[00:04:20] Speaker 02:
But they knew that he was testifying as a cooperator and they knew that he had received consideration for charges that he faced significant jail time.

[00:04:29] Speaker 02:
The jury heard that right.

[00:04:31] Speaker 00:
Yes, I would quibble with the word that he was a cooperator.

[00:04:36] Speaker 00:
He had been a cooperator and he'd already been sentenced in that prior case.

[00:04:41] Speaker 00:
It was a little unclear how he'd ended up testifying at our trial, which was what the defense counsel was trying to get at.

[00:04:49] Speaker 02:
So why don't you tick off what you think the first jury heard, and I'm going to see if it matches my list.

[00:04:53] Speaker 00:
OK.

[00:04:54] Speaker 02:
Maybe I'm missing something.

[00:04:56] Speaker 00:
The first thing I wanted to say, just to respond to the question about whether he'd been paid.

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And I think the distinction that is really important is whether he had received money for information or for his work in the case.

[00:05:10] Speaker 00:
What they'd heard is that he had received some funds to be relocated because his

[00:05:16] Speaker 00:
his life was in danger.

[00:05:18] Speaker 00:
I mean, it wasn't – this was not a benefit to him that he had been – the government had paid to relocate him.

[00:05:27] Speaker 00:
So that is a really different thing than being a paid informant, which is something that this court has recognized as being really powerful impeachment information.

[00:05:37] Speaker 00:
Forgive me for mis-speaking, counsel.

[00:05:37] Speaker 02:
I know the difference.

[00:05:38] Speaker 02:
So if you could move on.

[00:05:40] Speaker 02:
Your time is ticking away, and I want to make sure you get to the most salient points.

[00:05:45] Speaker 02:
Can you tell me what you think the first jury heard?

[00:05:49] Speaker 00:
You mean in terms of impeachment material?

[00:05:51] Speaker 00:
Yes.

[00:05:51] Speaker 00:
Yeah.

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So they heard that he had been granted immunity.

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

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They heard that he had cooperated in this case in 2004, and he'd been sentenced for that.

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So he wasn't receiving any further benefit from that at all.

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They heard that he'd been a drug dealer who'd worked with the Mexican mafia, and that he had

[00:06:13] Speaker 00:
considered murder.

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He hadn't done that.

[00:06:17] Speaker 02:
But he had talked with the Mexican Mafia about trying to murder someone.

[00:06:21] Speaker 00:
Yes, but he didn't.

[00:06:23] Speaker 00:
Ultimately, he decided that he wanted to wash his hands of it and walk away.

[00:06:27] Speaker 02:
I appreciate that, but we're talking about impeachment and the jury knew these facts, which are...

[00:06:32] Speaker 00:
certainly impeaching fact powerfully impeaching facts well I what what I would say is that this court and the Supreme Court has always treated being paid money as an informant as being very powerful impeachment evidence it's in a different category and I

[00:06:51] Speaker 00:
In particular, when there's some unknown, when the person is testifying and cooperating and they don't know whether they're going to be paid.

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And that's what we had here, because he said at the beginning his motivation was payment.

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And so this is qualitatively different from any of the other impeachment that they'd heard.

[00:07:11] Speaker 00:
When you read this testimony, you can tell that the defense lawyers

[00:07:15] Speaker 00:
are stymied.

[00:07:16] Speaker 00:
They cannot figure out why this witness is there.

[00:07:21] Speaker 00:
What's his motive?

[00:07:22] Speaker 00:
There's a motion that's filed over the weekend where the defense counsel is saying there's gotta be some more information out there about this.

[00:07:31] Speaker 00:
You know, we're entitled to Brady evidence.

[00:07:35] Speaker 00:
We think there has to be more to this than what meets the eye.

[00:07:41] Speaker 00:
Because he was giving some

[00:07:43] Speaker 00:
powerful and really important striking testimony that the defense lawyers thought was false.

[00:07:55] Speaker 00:
I mean, he testified that he was running these prisons from the outside, which the defense expert later said wasn't possible.

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And so the defense

[00:08:06] Speaker 00:
All of the defense lawyers were trying to figure out what was going on.

[00:08:11] Speaker 00:
I think the most disturbing part of the testimony is at 11ER2378, where on cross-examination,

[00:08:21] Speaker 00:
The defense lawyer says, have you worked any other cases for the state or federal government?

[00:08:28] Speaker 00:
And he says, no.

[00:08:30] Speaker 00:
When they ask, how many cases did he cooperate on?

[00:08:33] Speaker 00:
He says, one.

[00:08:34] Speaker 00:
And the lawyer says, just one.

[00:08:36] Speaker 00:
And he says, just one.

[00:08:37] Speaker 00:
And he says, any money?

[00:08:39] Speaker 00:
Besides getting the benefit of no jail time and probation, did you get any money?

[00:08:45] Speaker 00:
And there's an objection that's overruled.

[00:08:47] Speaker 00:
And the witness says, no.

[00:08:49] Speaker 00:
I don't.

[00:08:50] Speaker 00:
No.

[00:08:50] Speaker 00:
And so that, and I know the government is saying that the witness misunderstood the questions, but that gave the jury the wrong impression that he hadn't received any money for being an informant, which is different from receiving those relocation funds.

[00:09:08] Speaker 02:
Okay.

[00:09:08] Speaker 02:
So I appreciate that argument.

[00:09:12] Speaker 02:
Your position is that there is more that should have been disclosed and that he would have been further impeached, his credibility would have been further impeached had that been available to the defendants.

[00:09:22] Speaker 02:
What I'm less clear about at this point, my colleagues may have lots of other questions, but can you explain to me why this witness was central to the government's case as to any of the defendants?

[00:09:32] Speaker 00:
Yes.

[00:09:35] Speaker 00:
This court has talked about how we should listen to the prosecutor and the prosecutor says at 21 ER 4813.

[00:09:43] Speaker 00:
The witness was crucial to the government's case.

[00:09:46] Speaker 00:
As a former high-level operative of the Mexican mafia who dealt directly with the VBS gang, he was able to identify members of the VBS gang, including several defendants, and to further identify several members as gang leaders.

[00:09:57] Speaker 00:
He was also able to testify regarding the Mexican mafia's taxation of the VBS gang, a key issue at trial, and to internal power struggles within the VBS gang that directly led to the murder of one of the VBS's leaders.

[00:10:10] Speaker 00:
And in the Kyle's case and in this court's case in Serigati, the court says that the prosecutor's assessment is persuasive.

[00:10:18] Speaker 00:
In the Serigati case, the court wrote, it's ironic that when arguing the witness should be allowed to testify, the government deems her critical.

[00:10:26] Speaker 00:
But in its appellate brief says she's a minor witness.

[00:10:29] Speaker 00:
That's a really similar thing here.

[00:10:31] Speaker 00:
The government said she was critical, or he was critical.

[00:10:34] Speaker 00:
And we know that he was a critical witness because

[00:10:37] Speaker 00:
It was the focus of closing 17 times.

[00:10:41] Speaker 00:
In the Setagati case where this court also found that the witness gave material was material, the Brady violation was material, the government had named that witness four times.

[00:10:57] Speaker 00:
Here we have 17 times.

[00:10:58] Speaker 00:
It's the focus of the government's argument.

[00:11:01] Speaker 00:
It's the focus of the defense's argument.

[00:11:06] Speaker 00:
This court rejected the government's argument in the first appeal.

[00:11:10] Speaker 00:
It was making a very similar argument that Asensio and Agent Avenela had given duplicative testimony.

[00:11:21] Speaker 00:
And this court said, no, that you can't satisfy Brady by making some evidence available and claiming the rest would be cumulative.

[00:11:29] Speaker 00:
And while some of Bulgarian's testimony was independently corroborated, it nonetheless played a substantial role in the government's case in chief to show that VBS was a criminal enterprise under RICO.

[00:11:40] Speaker 00:
And what I would say is there was certainly evidence that VBS existed as a gang, that it had members had tattoos, that there was graffiti that they did, they had occasional meetings.

[00:11:56] Speaker 00:
There was also evidence that

[00:11:58] Speaker 00:
Our clients were drug dealers, so they were selling drugs.

[00:12:02] Speaker 00:
Some people were very small dealers, some people were

[00:12:09] Speaker 00:
dealing larger amounts, but there wasn't a connection to this whole conspiracy until Boogarin comes in and says, the Mexican mafia has made a list of all the drug dealers in this gang and we've met with the leader of the gang and we figured out that they need to pay taxation 20 percent of what they're earning.

[00:12:30] Speaker 00:
All of a sudden we have this cohesive unit, which is not what the evidence.

[00:12:35] Speaker 00:
And you think there wasn't other evidence?

[00:12:37] Speaker 00:
All but two were members of the gang, right?

[00:12:41] Speaker 00:
Of the appellants here?

[00:12:42] Speaker 00:
Yes.

[00:12:43] Speaker 00:
I think, I mean, one of the elements is they either, everyone has to either be a member or an associate.

[00:12:48] Speaker 00:
So in our group there were some associates as well.

[00:12:54] Speaker 00:
But that, you know, there can be members of a gang, but for the,

[00:12:58] Speaker 00:
to prove a RICO, you have to prove that connection, that this is conduct that's part of a racketeering enterprise.

[00:13:04] Speaker 00:
And that's what the government used this testimony to argue in closing.

[00:13:08] Speaker 00:
It's why it was so important.

[00:13:09] Speaker 00:
I understand how they use it.

[00:13:10] Speaker 02:
What I'm trying to figure out is, is it your contention this is all they had to prove this part of their case?

[00:13:16] Speaker 02:
There were a lot of recordings.

[00:13:18] Speaker 02:
What about the recordings?

[00:13:19] Speaker 02:
I suppose we're going to hear from the government in a minute.

[00:13:21] Speaker 02:
But just what's your take on this?

[00:13:23] Speaker 02:
Why was this so central as opposed to the other evidence that the government offered?

[00:13:27] Speaker 00:
Well, as you said, there were a lot of witnesses at this trial, and there were days of testimony that would only concern one appellant or really wouldn't concern any of the appellants.

[00:13:39] Speaker 00:
I mean, the case started with the murder of Officer Pavelka, which is a terrible tragedy.

[00:13:45] Speaker 00:
Our clans were not involved in that, and honestly, it was

[00:13:51] Speaker 00:
really the rogue acts of two members of the gang.

[00:13:56] Speaker 00:
It was powerful evidence, of course, but it didn't show the gang working as a cohesive unit.

[00:14:03] Speaker 00:
There were evidence of drug deals, but there wasn't evidence of this one conspiracy that was charged in count three, as opposed to multiple conspiracies.

[00:14:13] Speaker 00:
So Bougarin is the witness who brings the VBS gang together as an entity and shows it working in terms of one drug conspiracy, you know, as a whole group together, as opposed to just these little drug sales and smaller conspiracies, we might call them, that are happening.

[00:14:39] Speaker 00:
He has the gang working as a cohesive group.

[00:14:45] Speaker 00:
And so that's why, I mean, it was material to counts one, two, and three.

[00:14:52] Speaker 00:
And I, you know, and also to in terms of quantity to the sentences because two of our clients are serving life sentences because of these 851 enhancements that are no longer life sentences under current law.

[00:15:08] Speaker 00:
They would be looking at 10-year mandatory minimums as opposed to life, to mandatory life where they sentenced today.

[00:15:16] Speaker 00:
So that those quantity determinations were really huge as well.

[00:15:21] Speaker 00:
And that's the argument on count three, the drug conspiracy.

[00:15:27] Speaker 00:
So I think I'll reserve the rest of my time.

[00:15:30] Speaker 00:
Yes, thank you.

[00:15:48] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:15:50] Speaker 03:
William Larson for the United States.

[00:15:53] Speaker 03:
The district court in this case correctly found that the undisclosed benefits prior to the 2006 trial of these defendants were far less than the defendants had speculated, far less than Bugar and himself had guessed in a later 2009 trial, and far less than this court had assumed and found if substantiated would be material in the prior direct appeal.

[00:16:18] Speaker 03:
The district court, in a thorough 14-page order, the same district court who sat through both the 2006 trial of these defendants and the 2009 trial of Horatio Yippee's, found that the undisclosed benefits were not material to any of the defendants in any of the counts.

[00:16:34] Speaker 03:
Now, Brady issues are serious.

[00:16:36] Speaker 03:
The government takes this very seriously.

[00:16:39] Speaker 03:
It should never happen.

[00:16:41] Speaker 02:
But... Isn't the government arguing that it need not have produced some of this material after all?

[00:16:47] Speaker 03:
So the government's argument is that on the first two Brady prongs, as to what the court's referring to, is as the first two Brady prongs, the defense hasn't met its burden to show that each piece of undisclosed evidence that was later found on remand was actually in the possession or the constructive knowledge of the relevant agents.

[00:17:09] Speaker 02:
Why not?

[00:17:10] Speaker 02:
Why not?

[00:17:10] Speaker 02:
I don't understand that.

[00:17:11] Speaker 02:
The government has an obligation.

[00:17:13] Speaker 02:
You know this.

[00:17:13] Speaker 02:
The government has an obligation to produce what it has in its possession or what it's able to produce.

[00:17:17] Speaker 02:
I'm paraphrasing, but what it's able to get, and the government certainly knew that there had been state cooperation here.

[00:17:26] Speaker 03:
That's right.

[00:17:26] Speaker 03:
The government, the relevant, so the relevant unit is the... And the government affirmably represented that this person hadn't been paid anything.

[00:17:34] Speaker 02:
This is an error.

[00:17:36] Speaker 02:
And I think with 130 witnesses, it's certainly an error.

[00:17:41] Speaker 02:
It's an unfortunate error.

[00:17:42] Speaker 02:
I was impressed that the government took responsibility right away.

[00:17:45] Speaker 03:
Absolutely.

[00:17:46] Speaker 02:
Not as impressed that on appeal the government seems to be backtracking somewhat and suggesting that this need not have been produced, to be candid.

[00:17:52] Speaker 02:
So what's the story with that?

[00:17:54] Speaker 03:
And to be very clear, Your Honor, we're not saying all of this should not have been disclosed.

[00:17:58] Speaker 02:
Absolutely it should have been disclosed.

[00:17:59] Speaker 02:
But as to the evidence that was in the state's possession, why wasn't there an obligation for you to produce it, sir?

[00:18:05] Speaker 03:
It's as to specific payments that the federal, that the prosecution team just was not aware of, and that the defense has not shown the prosecution.

[00:18:12] Speaker 02:
But you know what the standard is about becoming aware of.

[00:18:15] Speaker 03:
Absolutely, absolutely.

[00:18:17] Speaker 03:
And in those cases, I just think there hasn't been a showing that the relevant federal agents had access to this, for example, the specific, you know, the $500 payment that Santa Barbara had.

[00:18:30] Speaker 02:
Well, forgive me for being, giving you a hard day, but why wouldn't they have had access?

[00:18:35] Speaker 03:
They knew about it.

[00:18:36] Speaker 02:
They knew about there had been, I think, a DEA task force and there had been earlier cooperation, and so I was disappointed to see the government was pushing back and saying it didn't have an obligation to check that out.

[00:18:47] Speaker 03:
I understand, Your Honor, and what I – to be clear on exactly what our argument is, it's – have – you know,

[00:18:57] Speaker 03:
It is about the burden and the burden on the Brady claim and not necessarily that you know in all cases if we went back to 2006 would we go take these steps and find out absolutely that's something we take very seriously in all our criminal cases and that's not something we shy from okay so what is your I appreciate that thank you so what is your argument

[00:19:15] Speaker 03:
It's that the defense hasn't met its burden to show, sort of as a technical matter about who the members of the prosecution team, did they have access to these databases that ultimately showed the payments.

[00:19:27] Speaker 02:
Right, and so I just ask why wouldn't they have?

[00:19:29] Speaker 02:
Why wouldn't they have access to reach out to the state and say,

[00:19:32] Speaker 03:
because these case agents weren't part of this particular task force, as I understand, that had access to the payment records.

[00:19:39] Speaker 03:
I think it's a minor point, and I think... You want to move on to your next argument?

[00:19:42] Speaker 03:
Yes, Your Honor.

[00:19:43] Speaker 03:
I'm just trying to answer the Court's question.

[00:19:45] Speaker 02:
Okay.

[00:19:45] Speaker 02:
I appreciate that.

[00:19:46] Speaker 03:
So, I think materiality is really what this case came down to below, and likely what it comes down to in this case.

[00:19:54] Speaker 03:
Just to start, unless the Court has any questions about the mandate or the law of the case questions, I'll just move directly into substance.

[00:20:01] Speaker 03:
So,

[00:20:03] Speaker 03:
Parties agree this is a count-by-count analysis.

[00:20:05] Speaker 03:
That's what this court directed the district court to do.

[00:20:07] Speaker 03:
We have several dozen counts.

[00:20:09] Speaker 03:
I think as a question of whittling those down, Bogard could not possibly have been material to defendants and counts.

[00:20:16] Speaker 03:
He said absolutely nothing about it.

[00:20:18] Speaker 03:
So I think that resolves 80 to 90 percent, if not more, of this appeal.

[00:20:24] Speaker 02:
Well, what opposing counsels argue is that he was critical for the whole RICO enterprise theory and that he testified about

[00:20:33] Speaker 02:
I guess calculating the taxes due to the Mexican Mafia and so forth.

[00:20:41] Speaker 02:
And all of these folks were charged with drug trafficking.

[00:20:43] Speaker 02:
They weren't all charged with RICO, but they were certainly all charged with drug trafficking.

[00:20:46] Speaker 02:
And so he purported to have intimate knowledge of the

[00:20:49] Speaker 02:
drug trafficking activities.

[00:20:51] Speaker 02:
Isn't that fair?

[00:20:51] Speaker 03:
I think it's fair to say that he was a RICO witness.

[00:20:55] Speaker 03:
I would agree with that.

[00:20:56] Speaker 02:
Okay, and so what do you do about, forgive me, but I think if I get this out then you can answer both.

[00:21:02] Speaker 02:
Opposing counsel makes a fair point that the government described this witness as being crucial or central.

[00:21:09] Speaker 03:
So let me respond first to the government statements.

[00:21:12] Speaker 03:
I think there's two of them that defense relies on and relied on today.

[00:21:15] Speaker 03:
There's the statement at, I believe it's 21 ER 4183, which came in a statement by the prosecutor trying to get benefits.

[00:21:25] Speaker 03:
after the trial for Begaran to relocate.

[00:21:28] Speaker 03:
And so this is a context where the prosecutor had a burden to show that this was important testimony in order to obtain those benefits.

[00:21:39] Speaker 03:
I don't think that takes the place.

[00:21:40] Speaker 02:
That's the context in which the prosecutor made those statements?

[00:21:43] Speaker 03:
Exactly.

[00:21:43] Speaker 03:
Yes, precisely.

[00:21:45] Speaker 03:
And so I don't think that can take the place of the district court's judgment or this court's judgment about materiality in a constitutional sense.

[00:21:54] Speaker 03:
of the testimony to individual counts.

[00:21:56] Speaker 03:
I think he's trying to protect his witness, and that's a laudable thing.

[00:22:00] Speaker 03:
But I think that statement can only mean so much.

[00:22:03] Speaker 03:
Now, the statements in closing, I think, are different.

[00:22:05] Speaker 03:
And I would ask the court to look at them, because I think they're being represented not completely accurately.

[00:22:14] Speaker 03:
The quote in closing that has been presented in the defense brief is to say that Bogarin's testimony was important.

[00:22:21] Speaker 03:
That's not actually what he said.

[00:22:23] Speaker 03:
The context of the discussion was the murder of Eugenio Cruz and the sort of back – the history of the Vineland Boys gang and the sort of struggle for control of the gang.

[00:22:34] Speaker 03:
And the prosecutor says Begaron's testimony was important here.

[00:22:38] Speaker 03:
Not important to the case, not important to the drug trafficking, not important to the RICO.

[00:22:42] Speaker 03:
Important here, talking about this understanding how the gang power struggle sort of developed over time.

[00:22:50] Speaker 02:
And so that is... You mean the Cruz episode, the conspiracy to, or the discussion to murder Cruz?

[00:22:54] Speaker 02:
When you say here, I still don't know what you're talking about.

[00:22:56] Speaker 03:
Yeah, the murder of Eugenio Cruz.

[00:22:58] Speaker 02:
Okay.

[00:22:59] Speaker 03:
Which was part of the 2009 trial of Horatio Ups.

[00:23:02] Speaker 02:
All right.

[00:23:03] Speaker 02:
I did not count the number of times in the closing, and I'll certainly re-review it, but is

[00:23:08] Speaker 02:
That's what I'm hoping you're going to respond to.

[00:23:11] Speaker 02:
You think that the characterization was not accurate?

[00:23:14] Speaker 03:
I think that's right.

[00:23:14] Speaker 02:
Are there other places in the closing where I'll find that he was mentioned again?

[00:23:18] Speaker 03:
I think he has mentioned in some other locations, but what I would point the court to is the government's reliance on the other cooperating witnesses, both in closing and in the case in general.

[00:23:29] Speaker 03:
And in particular, the defense discussed Anthony Asensio, who is a cooperating witness that we've relied on to show much more detailed testimony about the Vineland boys and about the gang's structure and drug trafficking activities.

[00:23:43] Speaker 03:
We also, in our 28-J letter... And did he identify the members of the gang?

[00:23:47] Speaker 03:
I believe Essencio identified Rafael Rapiz and Def.

[00:23:51] Speaker 03:
Contreras.

[00:23:53] Speaker 03:
Other cooperators testified and identified other members.

[00:23:55] Speaker 02:
And drug trafficking deals?

[00:23:57] Speaker 02:
Yes, and so in particular I... So any other place they would have had, other than the individual recordings, how did the, for sentencing, did the judge put together, or the government put together its case regarding Quant?

[00:24:08] Speaker 03:
You know, I'm not sure regarding sentencing exactly what was relied on for the quantities.

[00:24:14] Speaker 03:
The jury made, of course, some quantity findings in the verdict forms.

[00:24:19] Speaker 03:
But I just want to make sure that I point the court to the other cooperators because this idea that Begaran sort of gave the inside view and established the structure of the Vineland Boys and made it one enterprise is just not borne out by the trial at all.

[00:24:37] Speaker 03:
I would point the court to Asensio, who testifies in the 16th volume of the supplemental excerpts, and I'm happy to provide pages.

[00:24:44] Speaker 03:
James Roberts, I think, is another cooperator who provided significant gang history and rules and clique testimony.

[00:24:52] Speaker 03:
I'd also point in particular because Begharan only talks about Raphael UPs and Manuel UPs.

[00:24:57] Speaker 03:
Bruno Vasquez, who's in the 14th volume, and Julio Razo in the 17th volume both specifically go into drug trafficking.

[00:25:07] Speaker 03:
Bruno Vasquez identifies both Rafael and Manuel, if he's as violent voice members who are engaged in drug trafficking.

[00:25:13] Speaker 03:
Julio Razo specifically has to, I believe that may be Meza, but I'll have to double check as to him.

[00:25:21] Speaker 03:
So there were significant cooperators, much more significant than Bugarin, because remember Bugarin was not a member of the Feynman Boys.

[00:25:29] Speaker 03:
These other cooperators were, and so they are the ones who gave that inside view and who brought it together as one enterprise, as counsel put it.

[00:25:39] Speaker 03:
And then just to address the question on the drug quantity that your honor alluded to,

[00:25:46] Speaker 03:
In terms of relying on Bogarin's testimony about the taxes, I think if you consider what he actually said about the taxes, it was that it was $1,500 a month or $2,000 a month.

[00:25:58] Speaker 03:
I believe that was 20% of what he estimated.

[00:26:00] Speaker 03:
That's actually a pretty low estimate relative to the amounts that were borne out on the wires.

[00:26:06] Speaker 03:
Because ultimately, if the court goes through the trial testimony, this is a wiretap case, and it's structured around the case agent presenting wiretaps, explaining them, police officers discussing some of the seizures that happened because of those wiretaps, and then cooperators sort of filling in the gaps, particularly the cooperators they named.

[00:26:24] Speaker 03:
So the quantities are by and large coming from the defendants themselves, talking about 50 kilos of cocaine or 90 kilos of methamphetamine.

[00:26:34] Speaker 03:
There's significant seizures in this case that we discussed in our brief.

[00:26:38] Speaker 03:
So I think the idea that the jury disbelieved all of the defendants' own words about the huge quantities of drugs they were trafficking.

[00:26:45] Speaker 03:
and disbelieved all of the other cooperators who were actually members of the gang and said listen to this guy who I think defense counsel in the reply brief said gave sort of fantastical testimony about running prisons from outside of them.

[00:26:58] Speaker 03:
That they believed that as to the drug quantities but not everything else is just not burned out by the record.

[00:27:06] Speaker 03:
Just briefly on the evidentiary hearing point, district court has significant discretion in whether to hold an evidentiary hearing and did not abuse that discretion here.

[00:27:18] Speaker 03:
The decision based on materiality just does not turn on any of the disputes that defendants raise in the opening brief or the reply.

[00:27:27] Speaker 02:
So unless the court has questions about... I do have more questions if you could.

[00:27:30] Speaker 02:
Great.

[00:27:30] Speaker 02:
I want to go through my list to make sure that I understand what the first jury, well, the jury heard and then what was discovered later.

[00:27:37] Speaker 02:
So I think they knew that he had been arrested in 2004 for possession of a pound of meth and a gun.

[00:27:43] Speaker 02:
Correct.

[00:27:43] Speaker 02:
Okay.

[00:27:44] Speaker 02:
And that he had cooperated and received

[00:27:46] Speaker 02:
Did he, a very favorable deal, did they know he had been, the amount of time he thought he was facing, 11 or 12 years?

[00:27:53] Speaker 03:
They did.

[00:27:53] Speaker 02:
And that he got no jail time?

[00:27:56] Speaker 03:
Correct.

[00:27:57] Speaker 03:
They learned that in cross-examination.

[00:27:59] Speaker 02:
I just want to know if the jury heard it.

[00:28:00] Speaker 02:
Yes?

[00:28:01] Speaker 03:
Yes.

[00:28:01] Speaker 02:
Okay.

[00:28:02] Speaker 02:
So then, did they know that he had cooperated with the California Bureau of Narcotics?

[00:28:07] Speaker 03:
I believe Bureau of Narcotics is specifically named.

[00:28:09] Speaker 03:
If not BNE, then specifically the Detective John, Detective Dutcher is named.

[00:28:15] Speaker 02:
Okay.

[00:28:16] Speaker 02:
And that they paid for his hotel for whatever that's worth during part of the trial and the $5,000 in relocation expenses.

[00:28:22] Speaker 02:
Correct.

[00:28:22] Speaker 02:
And then he said that he wasn't receiving any benefits from law enforcement for testifying during the first trial.

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

[00:28:31] Speaker 02:
Did they hear anything about him wanting favorable consideration for his brother at the first trial?

[00:28:40] Speaker 03:
They did not, and I'm happy to address that in particular.

[00:28:43] Speaker 02:
Not yet.

[00:28:44] Speaker 02:
Did they hear anything else that would have been impeaching in that first trial?

[00:28:49] Speaker 02:
I just want to make sure my list is complete before you go on.

[00:28:51] Speaker 03:
They did hear about the brother and the fact that the brother was serving a significant sentence.

[00:28:56] Speaker 03:
I believe he was asked and denied whether his testimony would impact the brother, if I'm recalling correctly, and he said no.

[00:29:03] Speaker 03:
But that's true.

[00:29:04] Speaker 03:
His brother had been sentenced in, I believe, 1999, so six years before the trial, and there's been no evidence in the record that this testimony could have in any way impacted that state sentence.

[00:29:15] Speaker 02:
Is there anything else in the list?

[00:29:21] Speaker 02:
of what the jury did here?

[00:29:23] Speaker 03:
I think the – in addition to the sentencing consideration, which is perhaps most significant – it's also that he was granted immunity.

[00:29:30] Speaker 03:
I mean, just having done gang trials, that's extremely significant in a jury's consideration because they look at this guy.

[00:29:35] Speaker 02:
And they heard the testimony that he had been willing to cooperate with the Mexican mafia to try to plan to murder someone, right?

[00:29:43] Speaker 03:
Correct.

[00:29:44] Speaker 02:
Is there anything else?

[00:29:48] Speaker 03:
I think you've got it.

[00:29:49] Speaker 03:
He also did not use banks and hadn't been paying taxes.

[00:29:52] Speaker 03:
I think that was disclosed as well.

[00:29:54] Speaker 02:
Okay, and then what was learned later, an additional $5,000 in relocation expenses was paid in connection with the Vineland Boys Trial.

[00:30:03] Speaker 03:
So there was the additional 5,000 that was learned later that was before 2006 was not in relation to the Vineland Boys Trial.

[00:30:10] Speaker 03:
After the Vineland Boys Trial, there was an additional $3,600 in relocation payments that were related to the Vineland Boys Trial.

[00:30:17] Speaker 02:
Okay, wait a minute.

[00:30:17] Speaker 02:
At the second trial, it was learned.

[00:30:19] Speaker 02:
Well, I want to know, include the, not just what was learned at the second trial, but after the investigation, all in.

[00:30:25] Speaker 02:
Yes.

[00:30:26] Speaker 02:
what was not disclosed in terms of, I know the $400 from ATF, the $660 from the California Bureau of Narcotics, the $60 from the Santa Barbara Police Department, and then his brother was given consideration at a sentencing even though he was unhappy with it.

[00:30:40] Speaker 02:
So I think I have those I think are pretty well uncontested in the briefing.

[00:30:45] Speaker 03:
I think there's a $400 payment from ATF.

[00:30:47] Speaker 02:
Yeah, I mentioned that.

[00:30:48] Speaker 02:
And so it sounds like I need clarification on the first bullet point that I have in my notes.

[00:30:53] Speaker 03:
So the jury heard about the $5,000 relocation payment that was related to Vineland Boys.

[00:30:59] Speaker 03:
The additional $5,000 relocation payment that was discovered in the remand investigation was unrelated.

[00:31:04] Speaker 02:
Oh, it's unrelated?

[00:31:05] Speaker 03:
Yes.

[00:31:06] Speaker 02:
Okay.

[00:31:06] Speaker 02:
But had he already received it?

[00:31:08] Speaker 03:
He had already received it.

[00:31:09] Speaker 02:
At the time of trial.

[00:31:10] Speaker 02:
So he testified dishonestly about that, or at least incompletely.

[00:31:15] Speaker 03:
I would have to look at the specific question.

[00:31:16] Speaker 02:
Well, chronologically, it had happened and the jury didn't hear about it.

[00:31:20] Speaker 02:
Fair?

[00:31:21] Speaker 03:
Correct, but I think he asked he was asked if he had received any money and you know then he sort of says no and then they said and then he's like well I remember oh my they paid for my housing and then how much and then $5,000 so I think the how much was about that $5,000 payment I don't know if he was specifically asked anything where

[00:31:40] Speaker 02:
Fair enough.

[00:31:41] Speaker 02:
I don't mean to be elaborate.

[00:31:42] Speaker 02:
Is there anything else that you think I should have on the list of what was discovered after the trial that we're talking about today?

[00:31:52] Speaker 02:
The 2006 trial?

[00:31:53] Speaker 02:
Yes.

[00:31:53] Speaker 03:
I think the most important thing that Your Honor didn't mention, that is part of the district court's factual findings and

[00:32:01] Speaker 03:
and reflected in the decision below and also corroborated by the agency records is that Begharan had been deactivated prior to his testimony as a CS and had not actively worked as an informant for the state agencies for 10 months before the trial.

[00:32:18] Speaker 03:
Because part of the- Is that meaningful to the jury?

[00:32:22] Speaker 03:
It's not necessarily, well, it's responsive to the defense argument, which is that, so in 2009, Begaran says, I have this relationship, I use the government as my ATM, I work whenever I want and they pay me.

[00:32:34] Speaker 03:
Right.

[00:32:35] Speaker 03:
And so the argument the defense has been making in this case is he had that same arrangement in 2006.

[00:32:43] Speaker 03:
That's just not true.

[00:32:44] Speaker 03:
It's just not corroborated

[00:32:45] Speaker 02:
I appreciate that.

[00:32:46] Speaker 02:
I'm trying to again.

[00:32:47] Speaker 02:
I'm focusing on what the jury heard and what difference it would have made and so if any and so I Appreciate your clarification, but I don't think it goes on my lists for the reasons.

[00:32:56] Speaker 02:
I just mentioned, right?

[00:32:58] Speaker 02:
Okay, is there anything else?

[00:33:00] Speaker 02:
From you, no, okay.

[00:33:02] Speaker 02:
Do you have questions?

[00:33:05] Speaker 02:
I don't think the panel has any additional questions.

[00:33:07] Speaker 02:
Thank you for your argument.

[00:33:08] Speaker 03:
Thank you honor.

[00:33:08] Speaker 03:
We'd ask the court refer I'm right on up

[00:33:16] Speaker 00:
Thank you.

[00:33:17] Speaker 00:
I wanted to talk about that list, about what the impeachment of the defense did have.

[00:33:25] Speaker 00:
And I'd really like to push back on the idea that there was much impeachment.

[00:33:30] Speaker 00:
I mean, none of it was landing.

[00:33:32] Speaker 00:
He had cooperated, but he'd already been sentenced.

[00:33:35] Speaker 00:
He wasn't getting anything more.

[00:33:37] Speaker 00:
All of the other stuff, it didn't explain why he was there that day, and that his motivation was payment.

[00:33:44] Speaker 00:
This is the unusual case that we actually know because he told the law enforcement agencies that his reason for becoming an informant was that he wanted to get paid.

[00:33:55] Speaker 00:
That's really unusual.

[00:33:56] Speaker 00:
And that's really powerful information, impeachment information, that the defense didn't have and the jury didn't hear it.

[00:34:04] Speaker 00:
Instead, the jury was, the impression from his testimony when you read the whole thing was that he had been involved in crime and

[00:34:14] Speaker 00:
had really become disillusioned by what had happened in this case.

[00:34:17] Speaker 00:
It was riveting testimony about how he tried to prevent the murder of his friend and then

[00:34:23] Speaker 00:
his friend had been murdered, and he had washed his hands of the whole thing.

[00:34:29] Speaker 00:
And the impression was that he had left it all behind, when actually he was a paid informant in multiple cases for multiple agencies.

[00:34:39] Speaker 00:
And I just wanted to point the court to 21ER4778.

[00:34:43] Speaker 00:
It's this log that was taken by this joint task force.

[00:34:49] Speaker 00:
And you can tell from, I mean, the first thing you can tell is just how informal the record keeping was, was that these were just agents writing down amounts of money.

[00:34:59] Speaker 00:
But you can tell he's cooperating, there are different case numbers here.

[00:35:02] Speaker 00:
There's money expended, and they're, you know, the first two are, they're two $60 payments that they say are for info, which the government

[00:35:12] Speaker 00:
didn't turn this over to us because they just told us that $60 for info were expense reimbursement.

[00:35:21] Speaker 00:
This court has been very suspicious of that claim for expense reimbursement when there's no receipts and it's these round numbers.

[00:35:31] Speaker 00:
It's honestly the same thing with the relocation fees.

[00:35:36] Speaker 00:
Twice before our trial, he got $5,000 relocation fees.

[00:35:42] Speaker 00:
One was supposedly in a different case.

[00:35:44] Speaker 00:
One was in this case.

[00:35:46] Speaker 00:
There's no explanation for what that is.

[00:35:51] Speaker 01:
You're a really good lawyer, and you have an excellent grasp of all of the facts.

[00:35:57] Speaker 01:
What I'm concerned about is I think you made a good showing that the government failed to disclose what it was supposed to.

[00:36:04] Speaker 01:
But I still struggle with the prejudice aspect of this.

[00:36:07] Speaker 01:
Can you address that for me, please?

[00:36:09] Speaker 01:
I failed to see it.

[00:36:12] Speaker 01:
Where is the prejudice?

[00:36:13] Speaker 00:
Yeah.

[00:36:14] Speaker 00:
Well, I mean, my friend on the other side just listed a bunch of other cooperating witnesses.

[00:36:21] Speaker 00:
And if you look at every single one of those, they are really different.

[00:36:26] Speaker 00:
They gave much less impressive and important testimony to the enterprise.

[00:36:32] Speaker 00:
Bruno Vasquez and Julio Rosso are not VBS members.

[00:36:37] Speaker 00:
They were people who were dealing drugs with some of the members.

[00:36:43] Speaker 00:
They weren't talking about the gang working in this structural way.

[00:36:48] Speaker 00:
They were talking about drug dealing.

[00:36:51] Speaker 01:
Bruno Vasquez and Anthony Asensio were members who had no contact with the Mexican mafia.

[00:37:07] Speaker 00:
Yes, I mean, and that's, in the Brady context, we call prejudice and materiality the same.

[00:37:13] Speaker 00:
It's the same prong.

[00:37:16] Speaker 00:
OK.

[00:37:16] Speaker 00:
The same prong.

[00:37:17] Speaker 00:
Where is it?

[00:37:17] Speaker 00:
Yes.

[00:37:18] Speaker 00:
And blue-green was a crucial witness, as the government said, to the enterprise element of RICO and to show that these little drug dealers were actually participating in the conduct of the enterprise, which was a requirement

[00:37:38] Speaker 00:
for the Rico case.

[00:37:40] Speaker 00:
For the drug conspiracy, it was that there was one conspiracy.

[00:37:44] Speaker 00:
There's one giant conspiracy as opposed to all of these, you know, Bruno Vasquez or Julio Raza who's drug dealing with one of the appellants.

[00:37:53] Speaker 00:
This evidence was critical to establishing this unified one singular conspiracy as opposed to

[00:38:04] Speaker 00:
these little multiple conspiracies.

[00:38:06] Speaker 00:
Did Mejia have prior drug trafficking convictions?

[00:38:11] Speaker 02:
Sorry, I want to get the right Mejia that wanted the life sentence.

[00:38:14] Speaker 00:
Yeah, sorry.

[00:38:15] Speaker 00:
Sergio Mejia who's serving, yes, he's serving a life sentence based on 851 convictions.

[00:38:21] Speaker 00:
I asked whether he had prior drug trafficking convictions.

[00:38:23] Speaker 00:
Yes.

[00:38:23] Speaker 00:
That's what I meant to ask.

[00:38:25] Speaker 00:
Yes, because that's the basis of that life sentence.

[00:38:28] Speaker 00:
I don't know exactly what the qualifiers were if they were trafficking, I mean they were,

[00:38:33] Speaker 00:
Don't represent him, but I'm assuming they were some kind of you so you just tell me yes He had a predicate prior, but okay.

[00:38:39] Speaker 00:
Yes.

[00:38:39] Speaker 00:
Yes He has a predicate drug prior that qualified him for the 851 enhancement, so those are the two life sentence Defendants are are there for that reason I Think the main point I want to leave us with is just that I

[00:38:59] Speaker 00:
The defense didn't get to do that all-out assault on this witness that Kyle Wittley talks about.

[00:39:06] Speaker 00:
It had like these little opportunities to chip away at his credibility, but they didn't get to make that assault that they could have done knowing that he was working as a paid informant whose motivation was profit.

[00:39:19] Speaker 02:
So, counsel, we know the difference between the NAPU standard and the Brady standard, and you just said, you know, could have done.

[00:39:27] Speaker 02:
And I appreciate what you're talking about.

[00:39:28] Speaker 02:
Had you had this information, you have to show what would – would it have made a difference.

[00:39:32] Speaker 02:
So what's your very best answer to Judge Smith's question about why – about materiality?

[00:39:37] Speaker 00:
I mean, I think the top five things are how the prosecutor described the evidence, how the prosecutor argued it in closing, and how the defense argued it in closing, and also how this court decided it last time, because the government's making the same arguments again this time that it made in the first case about the... Well, the prior panel had a very different understanding of what was going to surface after the investigation.

[00:40:05] Speaker 02:
I'm not sure that's the most persuasive, but I'm following your arguments.

[00:40:08] Speaker 00:
That's number three.

[00:40:09] Speaker 00:
And then the fourth thing is to really look at the enterprise element of racketeering and the entire conspiracy on count three.

[00:40:18] Speaker 00:
So, you know, I think it's counts one, two, and three that we're really focused on.

[00:40:23] Speaker 00:
Okay.

[00:40:24] Speaker 00:
And your position is that he was critical for that?

[00:40:27] Speaker 00:
For those three counts?

[00:40:28] Speaker 00:
Yes, exactly.

[00:40:29] Speaker 02:
All right.

[00:40:29] Speaker 02:
As well as for the sentence.

[00:40:32] Speaker 02:
Anything further from either of my colleagues?

[00:40:34] Speaker 01:
Not for me.

[00:40:35] Speaker 02:
Thank you both for your argument.

[00:40:36] Speaker 02:
We appreciate it very much.

[00:40:37] Speaker 02:
We'll take that case under advisement, and that will be a wrap for the week.

[00:40:42] Speaker 02:
So we'll stand in recess.

[00:40:43] Speaker 02:
Thank you.

[00:40:44] Speaker 03:
All rise.

[00:40:54] Speaker 02:
This court for this session stands adjourned.