[00:00:17] Speaker 04:
Good morning, Counsel.

[00:00:19] Speaker 01:
Good morning, Your Honors.

[00:00:21] Speaker 01:
May it please the Court, I'm Tom Hartzell.

[00:00:24] Speaker 01:
I'm representing Wendy Barraona-Panameno on this appeal, and I'd like to reserve five minutes to rebuttal if needed.

[00:00:31] Speaker 00:
You're CJA, correct?

[00:00:33] Speaker 01:
Yes, Your Honor.

[00:00:34] Speaker 00:
Okay.

[00:00:34] Speaker 00:
And are you guys being paid now?

[00:00:36] Speaker 01:
We are, Your Honor.

[00:00:36] Speaker 01:
Thank you for asking.

[00:00:37] Speaker 00:
I wanted to make sure that was going on.

[00:00:39] Speaker 01:
And the Ninth Circuit is the promptest among all of the courts in paying?

[00:00:44] Speaker 04:
We try.

[00:00:45] Speaker 04:
Council, please be reminded that the time shown on the clock is your total time remaining.

[00:00:50] Speaker 01:
Thank you, Your Honor.

[00:00:50] Speaker 01:
All right.

[00:00:55] Speaker 01:
What the government didn't prove was the alienage of Rafael Rojel Trujillo, who is named as being an illegal alien transported by my client in Count 5, and Ismael Chavez Santoyo, Count 6, same status.

[00:01:12] Speaker 01:
What the government is arguing

[00:01:14] Speaker 01:
They're arguing in this USV in Noriega Parish case that, oh, I mean, it's good heavens.

[00:01:21] Speaker 01:
Looked like a duck, quacked like a duck.

[00:01:22] Speaker 01:
But it's really quite distinct from that case, because the only testimony we had here about the possible status of these individuals came from the admitted video recordings from the depositions of the material witnesses.

[00:01:41] Speaker 01:
And the government is saying, oh,

[00:01:44] Speaker 01:
They've identified these other two as being illegals, but in fact, they didn't.

[00:01:50] Speaker 01:
What you have to do is in the supplemental excerpt of records, we can read these depositions, and each of these three material witnesses were separated from the groups that they started to cross the border with from Mexico to the United States.

[00:02:07] Speaker 01:
And then they got together with other groups,

[00:02:13] Speaker 01:
And then when they got into the car separately, each of the material witnesses entered where they testified, they entered this van separately.

[00:02:23] Speaker 01:
And Zaccheo Serrano Manzon, he testified that when he got into the car, there were already six people in there.

[00:02:35] Speaker 01:
So he clearly didn't know the six people in there.

[00:02:38] Speaker 01:
And then Cristian Corrino Pedrosa testified

[00:02:43] Speaker 01:
that he was in the United States before he met up with this group that he ultimately was walking with.

[00:02:51] Speaker 01:
Now, the government says in its brief that, oh, well, this is a fellow who said that the rest of the folks he was with were illegal.

[00:02:59] Speaker 01:
Well, it's not quite that clear cut.

[00:03:02] Speaker 01:
What did they say?

[00:03:04] Speaker 04:
What did they say in response to whether their companions were illegal?

[00:03:08] Speaker 04:
What, if anything, did they say?

[00:03:10] Speaker 01:
Well, Carreno Pedrosa, he was asked,

[00:03:14] Speaker 01:
Did you know the legal status of the group that you were with?

[00:03:17] Speaker 01:
And he answered, no.

[00:03:18] Speaker 01:
But then right after that question, he was asked, were you aware they were not in the United States legally?

[00:03:24] Speaker 01:
And he answered, yes.

[00:03:27] Speaker 01:
But that group didn't include, to anybody's knowledge, certainly there was no evidence that it included the two people whose convictions I'm challenging here for insufficient evidence.

[00:03:39] Speaker 01:
And he was asked,

[00:03:40] Speaker 01:
Besides the driver of the vehicle, was there anybody else in the vehicle before you got in?

[00:03:45] Speaker 01:
And he just says, well, I think so.

[00:03:47] Speaker 01:
You know, a kid was in there.

[00:03:48] Speaker 01:
And that's in 22, 23 in the Supplemental Excerpts of Record.

[00:03:53] Speaker 01:
And then, Aboitas del Real, Omar Aboitas del Real.

[00:03:59] Speaker 01:
Now, he is talking about the confusion he had and how he got separated from the group.

[00:04:04] Speaker 01:
But when the van arrives and he gets into the van,

[00:04:08] Speaker 01:
there's already eight people in the van.

[00:04:10] Speaker 01:
So nobody, none of the material witnesses, that is, were coming into the van with these two disputed individuals.

[00:04:20] Speaker 02:
So they couldn't, unlike what the government is suggesting, identify- Counsel, would you agree that circumstantial evidence is critical here and why in this case was there not enough circumstantial evidence

[00:04:36] Speaker 02:
from which the jury could reasonably infer that Rojas or Trujillo and Sanchez Santoya's aliens was as the government alleged.

[00:04:48] Speaker 01:
In response to your question, Judge Smith, the first question, yes, circumstantial evidence is important.

[00:04:55] Speaker 01:
In this case, they're found in a van in the United States.

[00:05:00] Speaker 01:
They're not identified by anyone.

[00:05:03] Speaker 01:
Border Patrol agents said they had foreign identification.

[00:05:07] Speaker 01:
Some people were wearing camouflage pants.

[00:05:11] Speaker 01:
It's unclear whether Rojo Trujillo and Chavez Santoyo were wearing camouflage, which isn't that unusual.

[00:05:19] Speaker 01:
But there were two people in the van, clearly, with permission to be in the United States, the driver, my client, and her son.

[00:05:29] Speaker 01:
And there were a number of other people.

[00:05:32] Speaker 01:
And there were people who were let go.

[00:05:33] Speaker 01:
There were, I forget how many, three, four, five of the passengers in the van were let go.

[00:05:40] Speaker 01:
Three were material witnesses.

[00:05:43] Speaker 01:
Two were prosecuted without testifying.

[00:05:46] Speaker 01:
So the circumstantial evidence here is definitely watered down by the idea that the government, oh, let some people go and doesn't let other people go.

[00:05:56] Speaker 01:
suggesting that perhaps the ones they did let go did have permission to be in the country.

[00:06:01] Speaker 01:
They weren't prosecuted.

[00:06:03] Speaker 01:
There's no testimony about those people who were let go.

[00:06:06] Speaker 01:
So here's a van with mixed people with permission, without permission.

[00:06:10] Speaker 01:
So the circumstantial evidence just isn't sufficient to prove beyond a reasonable doubt the two elements.

[00:06:17] Speaker 01:
One, that they were in fact citizens of another country, and two, that they did not have permission to be in this country.

[00:06:26] Speaker 02:
If I understand your point, yes, circumstantial evidence is critical.

[00:06:30] Speaker 02:
It is possible for a jury to reasonably infer alien image based on what was there.

[00:06:37] Speaker 02:
You say that it's insufficient because some people were let go.

[00:06:41] Speaker 02:
Is that right?

[00:06:43] Speaker 01:
That's one of the reasons I say it's insufficient.

[00:06:45] Speaker 01:
No one identified them.

[00:06:46] Speaker 01:
Take a look at Noriega Terrace.

[00:06:49] Speaker 01:
In that case, they were talking about stash houses of long duration.

[00:06:53] Speaker 01:
They had

[00:06:54] Speaker 01:
evidence of people coming from the other side of the border moving in and moving out of the stash houses there.

[00:07:00] Speaker 01:
There were 20 people crammed into a room in a trailer and there some of the people that were crammed into that room in the trailer were found to be here in the country illegally without the kind of evidence that one would normally rely on without border patrol testifying that yes, they were here illegally and the border patrol didn't testify to that in this case.

[00:07:24] Speaker 01:
But in Noriega Perez, the circumstantial evidence is really overwhelming.

[00:07:30] Speaker 01:
Here, it's not sufficiently overwhelming to establish beyond a reasonable doubt the elements of the offense for which these guys were convicted.

[00:07:38] Speaker 02:
Counsel.

[00:07:39] Speaker 02:
So your response to Noriega Perez is the quantity of the evidence, not the fact that it was circumstantial.

[00:07:46] Speaker 01:
The quantity and the quality, Your Honor, not the fact that it was circumstantial.

[00:07:51] Speaker 01:
Yes.

[00:07:51] Speaker 00:
Did you try the case?

[00:07:53] Speaker 01:
No, Your Honor.

[00:07:54] Speaker 00:
Did counsel below move for a directed verdict based on insufficient evidence?

[00:08:01] Speaker 01:
Well, yes and no.

[00:08:04] Speaker 01:
One of my complaints and why I'm asking this court to find ineffective assistance as a matter of law... We ordinarily don't do that on a direct appeal.

[00:08:11] Speaker 00:
You know that.

[00:08:13] Speaker 01:
Oh, you don't ordinarily do it at all.

[00:08:14] Speaker 01:
There's just a few exceptions in which you can do it, and I'm saying this is one of them, in that there is a sufficiently developed record.

[00:08:21] Speaker 01:
Because not only did the attorney at the time, he argued for a directed verdict, but not on those grounds.

[00:08:28] Speaker 01:
He admitted.

[00:08:28] Speaker 01:
He conceded that the government had proven that they were illegal aliens.

[00:08:33] Speaker 01:
He was just arguing that the driver didn't know they were, and there was no evidence of an agreement for a conspiracy.

[00:08:40] Speaker 01:
So the answer is mostly no.

[00:08:43] Speaker 01:
Which the?

[00:08:44] Speaker 00:
Mostly no.

[00:08:45] Speaker 00:
Mostly he did not argue for a directed verdict.

[00:08:49] Speaker 00:
based on the grounds you are now articulating.

[00:08:52] Speaker 01:
That's correct.

[00:08:53] Speaker 01:
Correct.

[00:08:53] Speaker 01:
That's correct.

[00:08:54] Speaker 04:
Thank you.

[00:08:56] Speaker 04:
Council, if those two counts are thrown out, would that just leave remand for resentencing in your view?

[00:09:07] Speaker 01:
Yes.

[00:09:08] Speaker 01:
If they were thrown out, remand for resentencing.

[00:09:12] Speaker 04:
If we agree with your position that there was insufficient evidence to support those two counts.

[00:09:18] Speaker 04:
then there would be a remand for resentencing without those two counts.

[00:09:23] Speaker 01:
Yes, Your Honor.

[00:09:25] Speaker 01:
Then we get to the phone.

[00:09:26] Speaker 01:
The whole big question of the phone.

[00:09:27] Speaker 01:
Here, the government brought in Mr. Gibbs, who testified that there's nothing on the phone that was seized from the driver, my client, that gave them any information whatsoever.

[00:09:40] Speaker 01:
And then brought in the fact that it was password protected and talked about security features

[00:09:47] Speaker 01:
which by, first of all, there's no relevance whatsoever.

[00:09:50] Speaker 01:
And not once did the trial attorney object to this testimony.

[00:09:55] Speaker 01:
He never moved to preclude the testimony or in advance to preclude the witness, yet the witness didn't have any testimony.

[00:10:03] Speaker 01:
This is Gibbs.

[00:10:05] Speaker 01:
Well, what was the plain error in allowing this testimony?

[00:10:10] Speaker 01:
Because it suggested to the jury when combined with the testimony of their

[00:10:16] Speaker 01:
I believe it was, their expert witness on alien smuggling organizations, which the attorney didn't challenge as well.

[00:10:25] Speaker 01:
That witness testified that, oh, people who smuggle aliens have security features on their phones so that we can't crack the phone.

[00:10:33] Speaker 01:
They use all of these apps.

[00:10:34] Speaker 01:
They have enhanced security.

[00:10:36] Speaker 04:
It's impossible for law enforcement to see what exactly is on the... Most people have security features on their phone, even if they're not smugglers.

[00:10:44] Speaker 01:
Well, I know.

[00:10:45] Speaker 04:
So I don't know why that would be something that the jury would infer, because probably most of the jurors have security features on their phones.

[00:10:53] Speaker 01:
Well, we have passwords, yet the Claudio is speaking of the various apps, the Signal app, the Telegraph, names I don't even remember and don't recognize, where law enforcement is incapable of getting the contents of the phone.

[00:11:09] Speaker 01:
So there's testimony right there, and then this other agent says, no, we can't get into her phone.

[00:11:14] Speaker 01:
Well, the fact is it was simply an iPhone with a password like I have, like probably most of the people in the courtroom have, yet it was, there was an inference able to be drawn that she's a member of a smuggling organization because this expert, Gibbs, testified, I can't get into her phone, and no one ever, this attorney never made it clear that it was simply password protected.

[00:11:39] Speaker 01:
So those two

[00:11:42] Speaker 01:
areas I think really clearly show that there was ineffective assistance as a matter of law that he allowed this testimony in to suggest that his client's simple iPhone with a password, number one, was typical of those carried by smugglers.

[00:11:59] Speaker 01:
Number two, that in fact they allowed the agent to testify that he couldn't get in because he didn't have the password.

[00:12:09] Speaker 01:
And then the attorney

[00:12:10] Speaker 01:
Later on, says, well, you got into the other six phones.

[00:12:13] Speaker 01:
Oh, yeah, they gave us the passwords.

[00:12:15] Speaker 01:
They were consent searches.

[00:12:16] Speaker 01:
Once again, creating an inference that his client is guilty.

[00:12:20] Speaker 01:
I got three minutes left and a lot more to say.

[00:12:23] Speaker 01:
I think I'll reserve it for rebuttal.

[00:12:24] Speaker 01:
May it please the court.

[00:12:25] Speaker 04:
Thank you, counsel.

[00:12:26] Speaker 01:
Thank you.

[00:12:29] Speaker 04:
We'll hear from the government.

[00:12:36] Speaker 03:
Good morning, and may it please the court.

[00:12:38] Speaker 03:
Brenda McGinnis on behalf of the United States.

[00:12:41] Speaker 03:
The district court correctly found that the evidence was sufficient for a rational jury to find that the persons listed in counts five and six of the indictment were aliens.

[00:12:50] Speaker 03:
And there was no error, much less plain, in the admission of testimony that the defendant's cell phone was password protected.

[00:12:58] Speaker 03:
Viewing the evidence in the light most favorable to the prosecution, the district court found there was sufficient evidence.

[00:13:04] Speaker 03:
There was extensive evidence of alienage shown to the jury.

[00:13:09] Speaker 03:
The board patrol agent who originally testified listed each of the persons in the indictment by name.

[00:13:15] Speaker 03:
The jury was shown video of the apprehension of the defendant and all persons including the three witnesses whose testimony was played at trial were shown getting out of the appellant's van at the same time.

[00:13:27] Speaker 03:
And some of them were wearing camouflage clothing and had camouflage backpacks.

[00:13:32] Speaker 03:
The government introduced photos of all of them including the persons listed in counts five and six.

[00:13:37] Speaker 03:
of the indictment holding their Mexican identification cards.

[00:13:41] Speaker 03:
The three testifying witnesses testified that they illegally crossed the border, traveled through the desert, got into the appellate's van, and they were all apprehended by a board patrol together.

[00:13:51] Speaker 04:
Did they testify that they came in with the individuals named in counts five and six?

[00:13:59] Speaker 03:
They testified, each of the three testified something different.

[00:14:04] Speaker 03:
um, as far as who they came in with.

[00:14:07] Speaker 03:
But they said they all met up, um, at the, I guess, pick-up spot, quote unquote, and they all got into, they were told, um, by phone that, that was the van they were supposed to get in.

[00:14:18] Speaker 03:
They got in and the driver of the van, the defendant, gave them some directions.

[00:14:24] Speaker 03:
So that was the testimony at trial.

[00:14:26] Speaker 04:
Were you the trial counsel for this case?

[00:14:29] Speaker 03:
I was.

[00:14:33] Speaker 03:
In the Noriega, Paris case, 20 total aliens were apprehended, yet only eight testified at trial.

[00:14:39] Speaker 03:
And this court held that since the eight aliens who testified testified that they lacked permission to enter the United States, a jury could have reasonably inferred that the others did as well.

[00:14:49] Speaker 03:
The government is not required to present testimony from all of the people apprehended.

[00:14:53] Speaker 03:
And here, based on the evidence presented, a rational juror could find that all of the occupants of the van were unlawfully present aliens.

[00:15:01] Speaker 03:
Any conflicts in the evidence should be resolved in favor of the jury's verdict.

[00:15:05] Speaker 03:
So I ask the court to affirm the jury's verdict as to those counts.

[00:15:11] Speaker 03:
Now as far as the cell phone argument, there was no impermissible comment on the defendant's right to remain silent.

[00:15:18] Speaker 03:
And there was no prosecutorial misconduct in eliciting testimony from Agent Gibbs.

[00:15:24] Speaker 03:
Well, first, there was no error.

[00:15:26] Speaker 03:
In this case, there was no evidence that the defendant was ever asked for her cell phone password.

[00:15:31] Speaker 03:
There was no evidence that she asserted her right to remain silent.

[00:15:34] Speaker 03:
The government did not draw any negative inference as to the defendant's cell phone or even really discuss the agent's testimony and closing argument other than one sentence that there was a password on the phone so the extraction wasn't full.

[00:15:47] Speaker 03:
There was no implication that she was supposed to give any password.

[00:15:52] Speaker 03:
The evidence was that the government got a search warrant and because the phone was password protected, the download couldn't be completed.

[00:15:59] Speaker 03:
Passwords are not inherently negative.

[00:16:01] Speaker 03:
Passwords are very common nowadays.

[00:16:04] Speaker 03:
I don't know anyone who doesn't have a password on their phone.

[00:16:08] Speaker 03:
The mere existence of a password on a phone does not constitute a defendant's invocation of their right to remain silent.

[00:16:15] Speaker 03:
And if there was any error, it certainly was not plain.

[00:16:19] Speaker 03:
To the United States' knowledge, there is no case law stating that referencing a phone password is a comment on the defendant's right to remain silent.

[00:16:26] Speaker 03:
There is no case law saying that search warrants cannot be mentioned.

[00:16:31] Speaker 03:
The government's position is that there's nothing here that is clearly wrong.

[00:16:35] Speaker 03:
And if there was any error, it did not affect the defendant's substantial rights.

[00:16:40] Speaker 03:
One witness testified about the phone password, and there was one line about the download being incomplete and closing argument.

[00:16:47] Speaker 03:
The password being discussed was incidental compared to the extensive evidence of the defendant's guilt.

[00:16:54] Speaker 03:
And if there was any error, it did not seriously affect the fairness, integrity, or public reputation of the trial.

[00:17:02] Speaker 03:
The evidence against the defendant outside of any cell phone testimony was overwhelming.

[00:17:07] Speaker 03:
The defendant was caught on video with eight undocumented non-citizens inside her vehicle, and three of those non-citizens testified under oath implicating her in alien smuggling.

[00:17:17] Speaker 03:
I did want to address the argument that the cell phone evidence was irrelevant.

[00:17:22] Speaker 03:
Well, first it goes to what was done in the investigation.

[00:17:26] Speaker 03:
A phone was collected as evidence and it was processed, although no evidence was produced from it.

[00:17:31] Speaker 03:
And in addition, the defendant's main defense was that she had to take the suspected aliens to the hospital.

[00:17:38] Speaker 03:
And the government argued that the defendant had a working phone and therefore necessity did not apply here.

[00:17:43] Speaker 03:
So the cell phone evidence was absolutely relevant at trial.

[00:17:48] Speaker 03:
The appellant has failed to show error as to that issue.

[00:17:52] Speaker 00:
Was that in rebuttal, what you're describing?

[00:17:57] Speaker 03:
The cell phone.

[00:18:02] Speaker 00:
The lack of necessity.

[00:18:04] Speaker 00:
Yes, the lack of necessity.

[00:18:06] Speaker 00:
Did that come in in rebuttal or indirect?

[00:18:11] Speaker 03:
Some indirect and some in rebuttal.

[00:18:13] Speaker 03:
The government did have to call a rebuttal witness to testify as to the medical issues and that the defendant was using a phone at the time of the apprehension.

[00:18:29] Speaker 03:
And this court should not review the ineffectiveness claim at this time.

[00:18:32] Speaker 03:
And if it is reviewed, there is no merit to the claim.

[00:18:35] Speaker 03:
Unless Your Honors have any questions of me, I do not have anything else to add at this time.

[00:18:41] Speaker 04:
It appears not.

[00:18:43] Speaker 04:
Thank you.

[00:18:56] Speaker 01:
I don't recall in the testimony the idea that the phone was evidence of anything other than we can't crack it.

[00:19:06] Speaker 01:
Again and again we went back to that and the expert said

[00:19:13] Speaker 01:
when asked how they could download the other phones, quote, no, those phones are done under consent.

[00:19:19] Speaker 01:
So we had passcodes, and we were able to get full extractions on those.

[00:19:24] Speaker 01:
And the other, Claudio, the smuggling expert says, so most of these smuggling organizations are using these encrypted applications.

[00:19:35] Speaker 01:
Right now, very common applications are Snapchat, WhatsApp, Telegram, Signal.

[00:19:40] Speaker 01:
and goes on talking about how the law enforcement can't get into the smuggler's phones.

[00:19:49] Speaker 01:
So the idea that she had a phone, there was no testimony that the phone worked, just that he couldn't get into the phone.

[00:19:57] Speaker 01:
He didn't have the password.

[00:19:59] Speaker 01:
So clearly it's implicating the defendant's right to remain silent and not give up information that will help the government.

[00:20:08] Speaker 01:
Miss McGinnis is quite correct when there's no case law that says this is somehow violating the defendant's right to silence, but there's no case law that says it isn't.

[00:20:22] Speaker 04:
How can it be plain error if there's no clear case law on the point?

[00:20:28] Speaker 01:
Because there is no rationale, no evidence for having, no reason for having this evidence before the court.

[00:20:38] Speaker 04:
But our standard on the plain error review is that the error is so clear that the court should have recognized it without someone pointing it out.

[00:20:51] Speaker 04:
And if there is no case law that specifically precludes this, how can we say that the district court plainly erred?

[00:21:03] Speaker 01:
And then again, in the absence of a motion to preclude or suppress or prevent that evidence from coming to the jury, it makes it even more difficult, which goes to my argument that it's... Well, but you didn't answer my question about plain error review.

[00:21:17] Speaker 04:
How can it be plain error review if there's no definitive case on it?

[00:21:24] Speaker 01:
When the government introduces witnesses and testimony without relevance, that implicates

[00:21:33] Speaker 01:
By inference, a defendant, I think it's certainly, I mean, I understand your point, and I agree with sitting, if I were sitting where you're sitting, I would make the same point.

[00:21:43] Speaker 01:
It would be a stretch, but it's a stretch I'm asking the court to make that this is plainly not kosher, having these back-to-back witnesses that produce no relevant evidence but create

[00:21:56] Speaker 01:
an impermissible inference.

[00:21:58] Speaker 04:
All right.

[00:21:58] Speaker 04:
Thank you, counsel.

[00:21:59] Speaker 04:
Sure.

[00:21:59] Speaker 04:
You're welcome.

[00:22:00] Speaker 04:
Thank you to both counsel for your helpful arguments.

[00:22:02] Speaker 04:
The case is submitted for decision by the court.

[00:22:05] Speaker 04:
The final two cases on calendar for argument, Jensen versus Camco Manufacturing and White versus Prestige Default Services have been submitted on the briefs.

[00:22:15] Speaker 04:
That completes our calendar for the morning.

[00:22:17] Speaker 04:
We are on recess until 930 a.m.

[00:22:19] Speaker 04:
tomorrow morning.

[00:22:41] Speaker ?:
The session is adjourned.