[00:00:06] Speaker 06:
Okay, who's up first for the appellant?

[00:00:14] Speaker 06:
Miss Augustine.

[00:00:16] Speaker 02:
Good morning, Your Honors.

[00:00:17] Speaker 02:
Jesse Agostin, Federal Defenders of San Diego.

[00:00:19] Speaker 02:
On behalf of Mr. Elias, I intend to reserve at least two of my 10 minutes for rebuttal.

[00:00:24] Speaker 02:
I'll watch the clock.

[00:00:25] Speaker 06:
Thank you.

[00:00:26] Speaker 02:
So at this trial, there was a confrontation clause error of introducing a deported witnesses deposition, despite indications that he was available.

[00:00:35] Speaker 02:
And the problem was really dealing with his attorney's, quote, inability to do.

[00:00:39] Speaker 03:
Yeah, counsel, you have very little time.

[00:00:42] Speaker 03:
And so if you don't mind, I apologize for the interruption.

[00:00:46] Speaker 03:
No, of course.

[00:00:49] Speaker 03:
It does seem to me that Mr. Cruz Gonzalez's lawyer was the cause of the problem.

[00:00:57] Speaker 03:
I don't understand why his mistakes or bad faith or whatever one wants to call it,

[00:01:09] Speaker 03:
are attributable to the government and to whether its efforts were sufficient.

[00:01:18] Speaker 03:
Is there any indication that the government knew at the outset that Mr. Frank was gonna become a problem?

[00:01:27] Speaker 02:
Not at the outset, Your Honor.

[00:01:28] Speaker 02:
However, at the point he filed the motion to quash the subpoena, that is where- Well, at that point, what could the government do to undeport the witness?

[00:01:39] Speaker 02:
So at that point, what the government could have done was clarify whether Mr. Frank had conveyed the information about trial and had conveyed the information to his client about how to appear for trial.

[00:01:54] Speaker 05:
How does the government do that?

[00:01:56] Speaker 02:
Ask the court to inquire Mr. Frank in court, have you conveyed the information?

[00:02:02] Speaker 02:
That would not be a problem with attorney-client privilege.

[00:02:06] Speaker 02:
Could your client have made that request?

[00:02:20] Speaker 02:
Did the subpoena with the new trial date go to your client?

[00:02:24] Speaker 02:
Is the problem a logistical one that you have conveyed all the information?

[00:02:29] Speaker 02:
My client asked the government to do that.

[00:02:32] Speaker 03:
Why would the answer actually matter to what the government did rather than what the court decided to do?

[00:02:41] Speaker 03:
In other words, if Mr. Frank was

[00:02:45] Speaker 03:
a bad actor.

[00:02:46] Speaker 03:
I don't know if he was, but let's assume that he was devious and he didn't convey the information, or let's assume that he did and his client said, heck no, I'm not coming back.

[00:02:58] Speaker 03:
What difference does that make in terms of whether the government acted in good faith and the government did what it had to do?

[00:03:07] Speaker 02:
Because it is the government's burden to prove that the witness is unavailable.

[00:03:12] Speaker 02:
And it's not enough to prove that the witness's attorney is confused or not fulfilling his obligation.

[00:03:18] Speaker 02:
It must prove that the witness is unavailable.

[00:03:21] Speaker 02:
So given that it's the government's burden to put forth information on the record to show a witness's unavailability, and here the government had several opportunities to do that and chose not to, that is the major issue.

[00:03:34] Speaker 05:
I don't really understand.

[00:03:36] Speaker 05:
There doesn't seem to be a dispute that the witness was no longer in the United States.

[00:03:42] Speaker 05:
That's correct.

[00:03:42] Speaker 05:
And so you're telling me the government had several opportunities to put what on the record?

[00:03:48] Speaker 02:
To ensure that the witness knew of the new trial date and how to get to trial.

[00:03:52] Speaker 02:
That's really it.

[00:03:53] Speaker 05:
But is there anything, I mean, did the government know his whereabouts?

[00:03:57] Speaker 05:
Did the government have an opportunity to communicate directly with him?

[00:04:01] Speaker 02:
Well, so it did at the deposition, right?

[00:04:03] Speaker 02:
At that point, it had the opportunity to learn where he lived.

[00:04:06] Speaker 02:
It learned he lived in Tijuana right across the border from where trial was taking place.

[00:04:11] Speaker 02:
And then the government also had the opportunity.

[00:04:18] Speaker 05:
There was the opportunity before.

[00:04:20] Speaker 05:
I mean, presumably, your client's counsel could have asked the same questions.

[00:04:28] Speaker 05:
My question is really, is there any evidence the government knew, had direct communications with the witness at the time that mattered, which is after the witness is no longer in the country, and now the government's trying to get him back?

[00:04:43] Speaker 05:
Or is there evidence that this was contrived, that the government for some reason didn't want to get him back, so set it up as deliberately ignorant and so forth?

[00:04:52] Speaker 05:
I can construct a scenario, but in fact, I just don't see anything

[00:04:56] Speaker 05:
and the record that tells us that the government wasn't proceeding the way it was supposed to proceed.

[00:05:01] Speaker 02:
So I think two things.

[00:05:03] Speaker 02:
One, there's no argument about good faith here.

[00:05:05] Speaker 02:
This is not a contrived kind of argument.

[00:05:07] Speaker 02:
The question is really about, did the government take reasonable efforts that were available to it to get the witness to come to court?

[00:05:15] Speaker 03:
On that, I wanted to follow up on Judge Clifton's question, which was about direct contact.

[00:05:23] Speaker 03:
If he was represented, presumably the government could not contact him directly.

[00:05:29] Speaker 03:
So that avenue would not be certainly required and maybe not even available.

[00:05:37] Speaker 03:
So that takes me sort of back to the beginning, which is what do you do if you're the government and you act in good faith, but the lawyer will not cooperate?

[00:05:49] Speaker 03:
I'm not sure what more they can do, regardless of the reason why the lawyer is not cooperating or is not making the person available.

[00:05:58] Speaker 03:
I'm not sure what they could have done.

[00:06:00] Speaker 02:
So here, what they did is they asked the lawyer one question they put on the record.

[00:06:04] Speaker 02:
Does your client intend to come to court?

[00:06:07] Speaker 02:
There are other questions they could have asked the attorney and put on the record.

[00:06:12] Speaker 02:
Does he know what day court is?

[00:06:14] Speaker 02:
Does he know how to get to court?

[00:06:15] Speaker 02:
Does he know that we will pay his fees?

[00:06:17] Speaker 06:
Well, I guess the problem is that these demands for these additional questions are at the end of a long course of dealing where the government, by all light, seem to have proceeded by the book in terms of ex ante before deporting him, the deposition.

[00:06:35] Speaker 06:
Opposing the motion to quash, continually checking in and asking questions throughout.

[00:06:41] Speaker 06:
And so I guess the concern is in terms of a rule, a constitutional rule, there's always another question the government can ask if the witness's lawyer is being obstructive.

[00:06:56] Speaker 06:
But that can't be the rule because those questions will always be out there as long as the witness isn't in court.

[00:07:02] Speaker 02:
So two answers to that, Your Honor.

[00:07:04] Speaker 02:
First is there is a higher bar the government needs to meet when it is responsible for its own witness being unavailable, right?

[00:07:12] Speaker 02:
But two more directly to your point.

[00:07:15] Speaker 02:
Here the government only asks one question.

[00:07:17] Speaker 02:
This is not, does your client intend to come to court?

[00:07:21] Speaker 02:
Which honestly, as a defense attorney, is kind of designed for an attorney to say, that's privileged.

[00:07:29] Speaker 02:
You know, but there are questions that the government could have asked that were reasonable.

[00:07:33] Speaker 02:
We are not asking the government to drive down to Tijuana with a crew of agents to look for this.

[00:07:39] Speaker 02:
This is on a question of reasonableness, asking the attorney a few questions on the record or placing more information on the record that this person knew the date and time of court and just was choosing not to come rather than not knowing.

[00:07:55] Speaker 06:
Could I ask you a question about the hearsay issue?

[00:07:57] Speaker 06:
Yes, of course.

[00:07:59] Speaker 06:
What is the truth of the matter asserted on the form?

[00:08:04] Speaker 02:
Yes.

[00:08:05] Speaker 02:
Whose phone was whose?

[00:08:06] Speaker 02:
This phone was Mr. Elias's.

[00:08:08] Speaker 02:
This phone was Ms.

[00:08:09] Speaker 02:
Monroy's.

[00:08:10] Speaker 03:
So ownership.

[00:08:12] Speaker 03:
But why isn't the error harmless when there's evidence of the chain of custody and there are selfies on these phones?

[00:08:20] Speaker 03:
There's other evidence about the ownership.

[00:08:26] Speaker 03:
Yeah.

[00:08:27] Speaker 03:
But why isn't that, assuming it's error, which to me it was hearsay, but I don't see where the prejudice lies.

[00:08:37] Speaker 02:
So it served as the most obvious foundation, connecting up the phones to individual people, and the only foundation that went back to the jury room.

[00:08:46] Speaker 06:
Did you object to it going back to the jury room?

[00:08:48] Speaker 02:
No, because we objected to its introduction in the first place.

[00:08:51] Speaker 02:
And so like all other documents, our objection was overruled, and thus it went back to the jury room.

[00:08:56] Speaker 02:
I'm happy to reserve the remainder of my time unless there are any further questions.

[00:09:03] Speaker 06:
My colleagues have any additional questions?

[00:09:06] Speaker 06:
We'll give you an additional, we'll give you the full two minutes.

[00:09:08] Speaker 06:
Thank you.

[00:09:15] Speaker 04:
Good morning, Your Honors.

[00:09:16] Speaker 04:
May it please the Court, Mark Rahe, for the United States.

[00:09:20] Speaker 04:
Your Honors, there was no confrontation clause violation in this case.

[00:09:25] Speaker 04:
As the Court

[00:09:26] Speaker 04:
is aware the question of unavailability requires a good faith effort by the government and the extent of the efforts that are required are a question of reasonableness.

[00:09:36] Speaker 03:
Council, I have a question for you as well on this issue.

[00:09:40] Speaker 03:
It seems to me that there may have been a tactical or strategic error on the part of the government in allowing this person to leave the country.

[00:09:53] Speaker 03:
rather than to continue to be held in custody.

[00:09:59] Speaker 03:
And this may be sort of irrelevant, but how realistic is it to expect a person to return in these circumstances to testify?

[00:10:10] Speaker 03:
Is this something that happens regularly or never or?

[00:10:13] Speaker 04:
Your Honor, my understanding is that it does happen on occasion, but that it's also, I mean,

[00:10:21] Speaker 04:
I really don't have those numbers at hand, but all I do know is that for years, in fact, you know, there are no published cases on point, but the government cites a bunch of them, page 18 of our brief, when there is an appointment of counsel, all those cases say you continue to communicate with counsel, you give at the time of the deposition, you give a subpoena, you give a promise to pay costs, and you give a parole letter.

[00:10:49] Speaker 03:
Yeah, that has to do with, again, with the government's efforts, but I guess maybe it's not relevant, but it's certainly a curiosity to me how realistic it is, even when the government does go through all those steps, to actually expect someone to return.

[00:11:06] Speaker 04:
I wish I had that anecdotal information for you, Your Honor.

[00:11:11] Speaker 06:
Well, it's not just, I guess, anecdotal, right?

[00:11:13] Speaker 06:
If the government does, you know,

[00:11:16] Speaker 06:
walks through all these steps, you know, seems very, by the book, appears to be making these good faith efforts, but also knows that only 5% of material witnesses that are removed ever make it back.

[00:11:32] Speaker 06:
It just seems like, as Judge Graber seems to be suggesting, it seems like that should matter to the analysis, since it's the government that's making that decision.

[00:11:40] Speaker 04:
Right.

[00:11:43] Speaker 04:
Again, that kind of overall statistical information is not at my disposal.

[00:11:47] Speaker 04:
What I do know is that it's interesting.

[00:11:50] Speaker 04:
You look at a case, the defense puts heavy reliance on a case called Burden out of the D.C.

[00:11:55] Speaker 04:
Circuit.

[00:11:56] Speaker 04:
At page 688 of that opinion, all of the defects in that case are not present here.

[00:12:04] Speaker 04:
And in there, you know, before the deportation at the end of the deposition,

[00:12:09] Speaker 04:
In fact, in Burnett says, before his deportation, the government did not give the witness there a subpoena and offered a permit and pay for him to remain in the US, obtain his commitment to appear, or confirm his contact information.

[00:12:21] Speaker 04:
Here, as the deposition transcript points out, it was at least a two or three page colloquy.

[00:12:29] Speaker 04:
The prosecutor made sure that the material witness had the lawyer's information and that the lawyer had his contact information derived

[00:12:37] Speaker 04:
or listed and expressed promise to appear.

[00:12:40] Speaker 04:
And if the defense says, like, he just lives in Tijuana, it's not objectively unreasonable for the prosecutors at that time to think that he would come back.

[00:12:50] Speaker 04:
And that's all that the law requires.

[00:12:52] Speaker 04:
But it's, again.

[00:12:53] Speaker 05:
How does the process work?

[00:12:54] Speaker 05:
I mean, take the witness decides he'd rather be back in Tijuana than remain in detention here.

[00:13:01] Speaker 05:
He's given permission to come back for the purpose of testifying.

[00:13:06] Speaker 05:
Is he going to be in detention then?

[00:13:08] Speaker 05:
I mean, if that's how it's set up, hard perhaps to conclude that we could really believe he's going to come back if the whole point of going in the first place is to avoid detention.

[00:13:23] Speaker 05:
If he comes back, he's going to be held at the detention center.

[00:13:29] Speaker 05:
Do we know how that process works?

[00:13:31] Speaker 04:
Actually, that I can't answer, Your Honor,

[00:13:33] Speaker 04:
By the time of trial, he gets a parole letter, and that is to the authorities at the port of entry.

[00:13:38] Speaker 04:
It says, let this person in for this purpose.

[00:13:41] Speaker 04:
Do not take him into custody.

[00:13:43] Speaker 05:
And I think the expectation at least for the period of time for the parole letter, he can wander around and do his business.

[00:13:52] Speaker 04:
He can.

[00:13:53] Speaker 04:
But again, he's expected to come to court.

[00:13:55] Speaker 04:
And you know, that's why I mean, but the point being, it's not like there's going to be agents there and he's going to have to go through this.

[00:14:00] Speaker 05:
It's not like guaranteeing you're going to go back into jail if you come back to this country.

[00:14:04] Speaker 05:
Not at all.

[00:14:05] Speaker 04:
Not at all.

[00:14:06] Speaker 06:
Is the government, I guess, to flip my question on its head, is the government have experience of anyone coming back and testifying with this arrangement?

[00:14:17] Speaker 04:
I, again, I've been in appeals for the last 20 years.

[00:14:20] Speaker 04:
I haven't tried cases.

[00:14:21] Speaker 04:
What I have heard that yes, there have been such cases.

[00:14:24] Speaker 04:
I unfortunately don't have those statistics at my fingertips, but all I know is that, you know, and it's interesting because even the, at the moot court for this, the trial lawyer said, you know, I didn't know what to do.

[00:14:36] Speaker 04:
This has never happened before.

[00:14:38] Speaker 04:
This procedure, when you get a material witness, you have the deposition, they get their own counsel.

[00:14:45] Speaker 04:
Even the judge, you can see the frustration of the district court below.

[00:14:48] Speaker 04:
And she knew that this material witness council had experience.

[00:14:51] Speaker 04:
This is the way that the system goes.

[00:14:53] Speaker 04:
They filed that motion under 3144, claiming excessive hardship from extended pre-trial detention.

[00:15:00] Speaker 04:
We rely on their representations.

[00:15:03] Speaker 04:
You have this deposition where lawyers for all defendants had a full opportunity to cross-examine.

[00:15:11] Speaker 04:
And again, I would just say,

[00:15:12] Speaker 04:
Again, I wish I had those overall statistics, but let's look at the controlling log in.

[00:15:17] Speaker 05:
There is no black has experience.

[00:15:20] Speaker 05:
You've looked at the record more thoroughly, I suspect than I have.

[00:15:22] Speaker 05:
Did she ever comment on her experience or how surprised she was at how it unfolded?

[00:15:29] Speaker 04:
She did.

[00:15:30] Speaker 04:
To my understanding, she did not comment on her experience, but by I think it was 11 days before trial at that hearing, which was after

[00:15:41] Speaker 04:
the hearing on the motion to quash, I think she does say at one point she doesn't think he's coming back.

[00:15:45] Speaker 04:
Because by that point, you know, the government had given her, you know, she knew, I know at one point, defense counsel made it sound like, you know, we just needed to ask another question or so.

[00:15:55] Speaker 04:
This district court was fully aware in our opposition to the motion to quash.

[00:15:59] Speaker 04:
We attached the transcript to the deposition.

[00:16:01] Speaker 04:
When she denied the motion to quash, she's reading through that two page colloquy.

[00:16:07] Speaker 04:
She tells the lawyer, you know,

[00:16:09] Speaker 04:
And he confirmed that he had, I think at volume five of the excerpt of record, pages 865 and 856, he acknowledged receiving updated, you know, the subpoena, the parole letter, and the promise to pay the costs.

[00:16:26] Speaker 04:
You know, at some point, even under the, I know Judge Graber pointed it out, when somebody is represented, that's under,

[00:16:33] Speaker 04:
Rule 4.2, the ABA rules, you know, the government is entitled to rely on that.

[00:16:38] Speaker 04:
That's the system.

[00:16:39] Speaker 04:
And even there's a case, United States versus Rodriguez, we cited in our briefs, it was never acknowledged in either one of the defendants briefs, whether witnesses represented by counsel bears on whether it's ethically appropriate for a prosecutor to attempt to contact him or her directly here.

[00:16:57] Speaker 04:
There was no indication at the outset that this defense lawyer would end up playing games.

[00:17:02] Speaker 04:
And as we pointed out, you know, the government, what else could we do?

[00:17:05] Speaker 04:
We can't force this, you know, this material witness to come to court.

[00:17:10] Speaker 04:
It's not our position to interfere in an attorney and client relationship with the material witness in his counsel.

[00:17:18] Speaker 04:
This was, the government would submit the rule of reasonableness that that is satisfied.

[00:17:22] Speaker 06:
On the harmless error analysis for the confrontation clause, I think the government points to Agent Boves.

[00:17:29] Speaker 06:
Testimony of how they identified Mr. Cruz-Gonzalez in the car.

[00:17:38] Speaker 06:
Is that hearsay and was it objected to?

[00:17:40] Speaker 04:
I don't believe that's hearsay, because that was definitely not objected to.

[00:17:45] Speaker 04:
And, you know, not only did he testify to that, you also have, as we pointed out, the circumstances of the arrest.

[00:17:54] Speaker 04:
This was a cold, rainy January morning.

[00:17:58] Speaker 04:
The driver of that car is warm and dry.

[00:18:00] Speaker 04:
All seven persons in the back, one of whom included this material witness, is cold and shivering.

[00:18:06] Speaker 04:
And in Peña Gutierrez, this court said that that kind of information also counts as strong circumstantial evidence of alienage because a citizen of the United States or somebody else who legally had the ability to enter the country obviously wouldn't go through the contortions that this material witness did to get back in the country.

[00:18:26] Speaker 06:
So why wouldn't the government's argument on hearsay, now the defense's hearsay claim, that it's a public record, kind of swallow most of the investigative documents?

[00:18:43] Speaker 04:
Yes, you know it is unfortunate that that was admitted as a business record.

[00:18:47] Speaker 04:
Our position is that this is a clear non-hearsay purpose.

[00:18:52] Speaker 04:
This is a chain of custody issue.

[00:18:54] Speaker 04:
All those two

[00:18:55] Speaker 04:
lab analysts testified was they copied the name that was on the bag in which the phone got to them.

[00:19:03] Speaker 04:
But I think also, as one of your honors pointed out, even assuming that was error, there was strong evidence, independent evidence of the ownership.

[00:19:13] Speaker 04:
You have the selfies in the phone.

[00:19:14] Speaker 04:
You have every out well, not every, a lot of outgoing messages from Mr. Elias Ramirez's phone where he says, this is Chino.

[00:19:23] Speaker 04:
Every single

[00:19:23] Speaker 04:
cooperating witness at trial testified without dispute that that was his nickname.

[00:19:28] Speaker 04:
You have for Ms.

[00:19:30] Speaker 04:
Monroe a photograph of a government identification.

[00:19:33] Speaker 04:
And the last thing I'd say about that is in a closing argument, not once did the government take those worksheets up and say, look, ladies and gentlemen, this is the proof of why it's an ownership.

[00:19:45] Speaker 04:
To the contrary, in that closing argument, the prosecutor only referred to the evidence that I just mentioned.

[00:19:51] Speaker 04:
So unless the court has further questions, and I hope I did not prejudice my colleague's time.

[00:19:57] Speaker 06:
No.

[00:19:57] Speaker 06:
We'll keep you on separate clocks.

[00:19:58] Speaker 06:
Any other questions?

[00:20:00] Speaker 06:
OK.

[00:20:01] Speaker 06:
Thank you, Mr. Rahe.

[00:20:08] Speaker 02:
All right, so three points.

[00:20:10] Speaker 02:
Judge Graber, to your question about how realistic it is to deport someone to Mexico and expect them to come back, co-counsel and I cannot remember a trial we've seen in which that has happened.

[00:20:23] Speaker 02:
It's really only whether a material witness is released into the country that they come back to testify at trial that we've seen in our experience.

[00:20:30] Speaker 02:
It's very unusual.

[00:20:33] Speaker 02:
The second point on the harmless error question on the confrontation clause, the first issue, I do think it was hearsay, but it wasn't objected to.

[00:20:44] Speaker 02:
But more importantly, direct testimony of citizenship, I am not a citizen of the United States, is just much more powerful evidence than someone being rainy in San Diego, as unusual as that is.

[00:21:00] Speaker 02:
And I point this court to its case Bustamante, in which a testimonial statement about someone's citizenship was held to be not harmless beyond a reasonable doubt, even though there were marriage records, school records.

[00:21:14] Speaker 02:
And the point is really saying I'm not a citizen is very hard to prove harmless beyond a reasonable doubt under the constitutional standard.

[00:21:23] Speaker 02:
particularly here when the agent who testified to the, probably hearsay, said was not fluent in Spanish.

[00:21:31] Speaker 02:
He could not remember whether Mr. Cruz was in the car at first.

[00:21:34] Speaker 02:
It was much shakier testimony.

[00:21:37] Speaker 02:
And then just on the third point, I'd emphasize to this court that the choices available to the government in the situation are never just to detain someone or deport them.

[00:21:47] Speaker 02:
This court explained in Yida there are many

[00:21:50] Speaker 02:
options available to release a material witness into the United States with higher, more restrictive conditions such that it's not put in this admittedly pretty unusual situation with an uncooperative attorney.

[00:22:04] Speaker 02:
Thank you.

[00:22:05] Speaker 06:
Thank you, Ms.

[00:22:06] Speaker 06:
Agustin.

[00:22:13] Speaker 06:
Mr. Burcham?

[00:22:18] Speaker 01:
Your Honor's good morning, Gary Burcham, on behalf of Appellant Claudia Monroy.

[00:22:24] Speaker 01:
I would like to focus on the guilt concession issue, which is in the opening brief.

[00:22:29] Speaker 03:
Starting with opening statement and all the way through... Excuse me, could I ask you to speak closer to the microphone?

[00:22:35] Speaker 03:
I'm having trouble hearing you.

[00:22:36] Speaker 01:
Yes, Your Honor.

[00:22:37] Speaker 01:
Is that better?

[00:22:38] Speaker 03:
Thank you.

[00:22:39] Speaker 03:
Yes, thank you so much.

[00:22:40] Speaker 01:
You're welcome.

[00:22:41] Speaker 01:
Starting with opening statement and also including closing statement,

[00:22:45] Speaker 01:
Defense counsel conceded guilt, conceded Ms.

[00:22:47] Speaker 01:
Monroy's guilt as to the alien transportation counts in this case.

[00:22:50] Speaker 01:
That was counts two, six, and eight.

[00:22:54] Speaker 01:
We know from the trial record why defense counsel did this.

[00:22:57] Speaker 01:
Essentially two reasons.

[00:22:58] Speaker 01:
Number one, the counts three and five, the substantive bringing in counts were the most serious counts in the case because they each carried a three-year mandatory minimum sentence.

[00:23:08] Speaker 01:
And also the bringing in counts were certainly more defensible than the alien transportation counts.

[00:23:13] Speaker 01:
These sorts of guilt concessions can be legitimate, tactical, smart things to do in a trial.

[00:23:22] Speaker 01:
Conceding guilt on less serious counts or less defensible counts may be a good way to gain an advantage on a more serious count or a more serious circumstance.

[00:23:34] Speaker 01:
We see that often in capital cases.

[00:23:37] Speaker 01:
But the concession, and the cases all say this, the concession needs to be

[00:23:40] Speaker 01:
It needs to be sensible.

[00:23:41] Speaker 01:
It needs to be rational.

[00:23:42] Speaker 01:
There has to be a reason to make this concession.

[00:23:44] Speaker 05:
But we don't know what the reason might be because we're at a stage of the case where that question is difficult to explore, which gets to the broad question.

[00:23:54] Speaker 05:
Is this a challenge that we can properly take up at this stage?

[00:23:59] Speaker 01:
That was the government's threshold argument.

[00:24:01] Speaker 05:
And it's something we get all the time.

[00:24:03] Speaker 05:
Ineffective assistance of counsel usually comes up in the context of

[00:24:08] Speaker 05:
of habeas post-conviction review because then you can actually dig in and find out from the attorney what the reason was and so forth and we can't do any of that now.

[00:24:18] Speaker 01:
I agree your honor that these claims are typically brought on collateral review 2255 and there's typically or can be further record development at that point including potentially an evidentiary hearing where the attorney testifies as to the what and the why.

[00:24:34] Speaker 01:
But I think given the totality of the trial record in this case, with an experienced defense counsel who clearly understood the ramifications of counts three and five and focused his arguments on trying to beat those counts, I think we have enough in the record in this case to understand why counsel acted as he did with respect to conceding on the transport counts and trying to gain acquittals on counts one, three, and five.

[00:24:59] Speaker 06:
Do we even know whether the client

[00:25:02] Speaker 06:
Consented or you know strategized around this which would also matter to the analysis it would matter No, the we don't have that information before one way or the other correct correct And so if the court finally take it up now, I mean you just observed that It's usually collateral.

[00:25:21] Speaker 05:
It's a rare case.

[00:25:22] Speaker 05:
We can take it up on direct appeal Just explained some of the reasons why we don't take it up on direct appeal, so why should we here?

[00:25:31] Speaker 01:
Because that's not the basis of our argument in this appeal.

[00:25:34] Speaker 01:
We're not saying that there was an issue concerning client consultation or client consent to the guilt concession strategy employed by defense counsel.

[00:25:44] Speaker 01:
We're saying that the guilt concession strategy employed by defense counsel was just irrational based upon the nature of this case, the proof that was introduced at trial, and the different counts that... So even if we don't know from the attorney what the

[00:26:00] Speaker 05:
Reason was and even if we don't know from the client as to whether all of this was explained I Mean again, you're asking us to proceed With a veil of ignorance as to key questions Why?

[00:26:15] Speaker 01:
Because miss Monroe is is facing removal to El Salvador Miss Monroe is not going to be able to file a pro se 2255 alleging ineffective assistance of counsel because

[00:26:28] Speaker 01:
Number one, if she was not advised as to this, if she did not concede, I don't know what the answer to that question is.

[00:26:34] Speaker 03:
But isn't that also going to be true even if those counts are removed, there's an additional count and she'd be in the same boat as far as her ability to file a 2255.

[00:26:56] Speaker 01:
Is your honor mentioning count one in the case?

[00:27:02] Speaker 03:
I'm referring to your second argument about the conspiracy count.

[00:27:09] Speaker 01:
That's right.

[00:27:10] Speaker 01:
So by the time this case got to closing argument, there were four counts left.

[00:27:15] Speaker 01:
There were accounts two, six, and eight, which were the substantive and conspiracy to transport counts.

[00:27:19] Speaker 01:
And then there was count one, which was the conspiracy to bring in counts.

[00:27:23] Speaker 01:
And so after Counts 3 and 5 were dismissed before closing argument pursuant to the Rule 29 motion, defense counsel turned his attention to Count 1, which was the conspiracy to bring in aliens account.

[00:27:36] Speaker 01:
And as I set forth in my brief, that count was no more serious than the other three counts in terms of penalty.

[00:27:44] Speaker 01:
That count was no more serious than the other three counts in terms of collateral consequences.

[00:27:49] Speaker 01:
And so we have a situation where counsel

[00:27:52] Speaker 01:
is arguing for acquittal on count one in closing argument.

[00:27:55] Speaker 01:
The other three counts have already been conceded.

[00:27:57] Speaker 01:
And an acquittal on count one would have done absolutely nothing for Ms.

[00:28:00] Speaker 01:
Monroy at that point.

[00:28:01] Speaker 01:
It wouldn't have changed her sentence.

[00:28:03] Speaker 01:
It wouldn't have changed her.

[00:28:04] Speaker 03:
Well, I guess my question is sort of the opposite of that.

[00:28:08] Speaker 03:
And it is, even if counsel was ineffective on the other counts,

[00:28:16] Speaker 03:
Why wouldn't this remaining count still carry all the same consequences?

[00:28:24] Speaker 01:
It would have the same consequences, the same guidelines, the same collateral effects for immigration.

[00:28:30] Speaker 01:
But the point I'm trying to make and the point I tried to make in my brief is that these guilt concession strategies and these guilt concession arrangements by a defense attorney

[00:28:42] Speaker 01:
have to be rational.

[00:28:44] Speaker 01:
You can't just willy-nilly concede guilt on certain counts because you might want to argue for a different count.

[00:28:53] Speaker 01:
There has to be a reason.

[00:28:54] Speaker 01:
There has to be a potential benefit to the defendant.

[00:28:56] Speaker 01:
And the problem with this case is by the time this got to the end of the case and closing argument and then went to the jury, there was zero potential benefit to Ms.

[00:29:05] Speaker 01:
Monroy with the counts that remained.

[00:29:07] Speaker 06:
Mr. Bertram, can I ask you a kind of a technical question about Joinder?

[00:29:11] Speaker 06:
The government objects, and I don't think we've heard your response to that objection in the briefs.

[00:29:16] Speaker 06:
With respect to... Joining Mr. Elias Ramirez's appeal.

[00:29:21] Speaker 01:
I would just say that it's co-defendants in the same case, and... But not consolidated, as the rules kind of contemplate.

[00:29:29] Speaker 01:
That is true, Your Honor.

[00:29:31] Speaker 01:
I don't have a response other than that there's co-defendants in the same case.

[00:29:34] Speaker 01:
I didn't want to read the exact same thing, have the court read that twice.

[00:29:38] Speaker 01:
And so that's my response to that question.

[00:29:42] Speaker 06:
OK.

[00:29:42] Speaker 06:
Do you want to reserve your remaining time for rebuttal?

[00:29:44] Speaker 06:
Yes, please.

[00:29:44] Speaker 06:
Thank you very much.

[00:29:45] Speaker 06:
Thank you.

[00:29:55] Speaker 06:
Ms.

[00:29:55] Speaker 06:
Alexiades?

[00:29:57] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:29:59] Speaker 00:
Isabel Alexiadis on behalf of the United States.

[00:30:02] Speaker 00:
So I'll focus on the ineffective assistance claim, but if you have any questions on the sufficiency claim, happy to answer those as well.

[00:30:09] Speaker 00:
This claim is not properly before this Court on direct appeal.

[00:30:12] Speaker 00:
As Judge Clifton pointed out, we don't know why defense counsel framed the case as he did, and this is not the extraordinary case that is appropriate for review on direct appeal.

[00:30:23] Speaker 00:
As my friend acknowledged, concessions are not per se unreasonable.

[00:30:27] Speaker 06:
I'm sorry, can we start the clock?

[00:30:31] Speaker 06:
Thanks.

[00:30:32] Speaker 06:
Thank you.

[00:30:32] Speaker 00:
Yeah.

[00:30:33] Speaker 00:
So as my friend acknowledged, concessions are not per se unreasonable.

[00:30:37] Speaker 00:
Depends on the circumstances of the case.

[00:30:39] Speaker 00:
And here we don't have a full picture of the circumstances in this case as to why defense counsel made the decisions he did to determine whether his framing of the case was appropriate.

[00:30:49] Speaker 05:
Can you think of a reason?

[00:30:51] Speaker 05:
It's odd because

[00:30:53] Speaker 05:
It's sort of like I'm looking at a mirror image and we got the same problem.

[00:30:57] Speaker 05:
We can fairly say and you heard us say to your colleague, so what difference is it going to make?

[00:31:05] Speaker 05:
And we wind up coming back to you and say, so what possible benefit could there be to this strategy?

[00:31:11] Speaker 05:
We're operating in the dark but it is true that once removed,

[00:31:19] Speaker 05:
And as I understand, this is the case in which defendant has served time.

[00:31:24] Speaker 05:
So all that's left is the supervised release.

[00:31:27] Speaker 05:
But if you're no longer in this country, that really doesn't count for anything.

[00:31:33] Speaker 05:
You're not really in a position to file a collateral challenge.

[00:31:39] Speaker 05:
So I sort of understand why they're trying to push it forward now.

[00:31:42] Speaker 05:
So I start to speculate.

[00:31:44] Speaker 05:
Can you think of a reason why defense counsel might want to do that?

[00:31:48] Speaker 00:
Sure.

[00:31:49] Speaker 00:
So I think evaluating the case as a whole, we have to consider what defense counsel was doing from the outset.

[00:31:54] Speaker 00:
And at the outset, the two counts that carried a mandatory minimum were on the table.

[00:31:57] Speaker 00:
So I think it was perfectly reasonable, first, an opening for defense counsel to use the opening statement for its stated purpose, which is to preview what the evidence will show, soften the ground for the jury, and take the sting out of what was pretty overwhelming evidence against Ms.

[00:32:12] Speaker 00:
Monroy.

[00:32:13] Speaker 00:
It's a tough defense.

[00:32:15] Speaker 05:
That's part of the context.

[00:32:17] Speaker 05:
But does it help

[00:32:18] Speaker 05:
against the circumstances which present a tough defense to say, okay, yeah, she's guilty.

[00:32:27] Speaker 00:
I think that it can help, and I think that the Ninth Circuit's case law has established that, that it can be used to boost credibility and focus the juror's attention on the real battlegrounds in the case.

[00:32:38] Speaker 00:
To finish answering your question, I think the second part is, so what was the purpose of continuing with this strategy after the Rule 29 motion had been granted?

[00:32:47] Speaker 00:
and the mandatory minimum counts were off the table.

[00:32:49] Speaker 00:
And I think at that point, it still makes sense to continue with the same strategy and the same framing of the case because the defense counsel reasonably wanted to present a consistent narrative from opening to closing.

[00:33:01] Speaker 00:
It wouldn't have made sense to build up credibility in opening and then squander that after the case had been presented by switching strategy midstream.

[00:33:10] Speaker 00:
I also think that while my friend makes the point that the maximum penalty for the bringing in conspiracy was not greater than the transportation counts and it might not have changed Ms.

[00:33:20] Speaker 00:
Monroy's guidelines range, I think it's plausible that it could have affected where the judge chose to end up within the guidelines range.

[00:33:27] Speaker 00:
Ms.

[00:33:27] Speaker 00:
Monroy received a mid.

[00:33:29] Speaker 05:
They did get different sentences, although I suspect that may have more to do with the factual circumstances and role, but it is true there was a difference

[00:33:41] Speaker 00:
Exactly.

[00:33:42] Speaker 00:
So I think that first, our threshold position is that we don't have enough evidence in the record here to decide this claim on direct appeal.

[00:33:50] Speaker 00:
But should the court wish to reach the merits, we don't think defense counsel's performance was deficient.

[00:33:56] Speaker 00:
Taking the inferences that Ms.

[00:33:58] Speaker 00:
Monroy presents in her brief, this was a reasonable strategy aimed at boosting credibility with the jurors and focusing on the more defensible accounts.

[00:34:06] Speaker 00:
But even if it were deficient, there's no way it could have prejudiced Ms.

[00:34:09] Speaker 00:
Monroy, giving the overwhelming evidence

[00:34:11] Speaker 06:
against her on the transportation counts well it's i guess uh... i mean there is a line of cases uh... indian mccoy that would say that if this were conceded without the client's consent uh... right at least in some instances that's structural error we don't look questions of whether it's harmless or not yes but as you pointed out we don't have evidence in the record as to whether or not she objected or consented to the strategy so that's something that

[00:34:40] Speaker 00:
would have to be developed in collateral proceedings.

[00:34:42] Speaker 00:
We don't know here whether that was an issue.

[00:34:45] Speaker 00:
And in a case like McCoy, that type of evidence was in the record.

[00:34:52] Speaker 00:
On the sufficiency count, the evidence easily supported a conviction for bringing in conspiracy under Jackson versus Virginia.

[00:35:00] Speaker 00:
Ms.

[00:35:00] Speaker 00:
Monroy was not a bystander or a one-time driver.

[00:35:03] Speaker 00:
She consistently coordinated pickups from the border.

[00:35:06] Speaker 00:
acted as a lookout, transported migrants for pay, and was trusted enough that her brother told the other members of their group that she would be, quote, left in charge should anything happen to him.

[00:35:18] Speaker 00:
There is no tension between the jury's conviction on that count and the court's grant of a Rule 29 motion on the separate offense of aiding and abetting the bringing in of two specific individuals.

[00:35:31] Speaker 00:
If the court has no further questions.

[00:35:35] Speaker 00:
We asked the judge.

[00:35:38] Speaker 06:
Doesn't sound like we have any.

[00:35:39] Speaker 00:
Okay.

[00:35:39] Speaker 00:
We ask that the judgment be affirmed.

[00:35:40] Speaker 00:
Thank you.

[00:35:41] Speaker 06:
Thank you.

[00:35:41] Speaker 06:
Mr. Bertram.

[00:35:47] Speaker 01:
Thank you, Your Honor.

[00:35:48] Speaker 01:
Just a couple of points.

[00:35:50] Speaker 01:
Your Honor asked, you know, why continue with this after the rule 29 has been granted.

[00:35:54] Speaker 01:
And the reason is because you can't unconcede guilt at that point.

[00:35:58] Speaker 01:
That's why it was important that defense counsel not concede guilt, starting with opening statement, given that it was clear there were going to be sufficiency and proof issues with respect to these bringing in counts.

[00:36:08] Speaker 01:
Once that was conceded in an opening statement, there was no U-turn, there was no going back.

[00:36:11] Speaker 01:
That was something that led to the very bizarre situation where there were four counts in closing argument that were at issue, and Gill was conceded as the three of the four counts.

[00:36:23] Speaker 01:
And so that's why that happened.

[00:36:25] Speaker 01:
With respect to prejudice, clearly the government had

[00:36:29] Speaker 01:
sufficient evidence to show that perhaps Ms.

[00:36:34] Speaker 01:
Monroy conspired to transport people and also transported people.

[00:36:38] Speaker 01:
The one gentleman was in the back of her van, cold and wet.

[00:36:43] Speaker 01:
But the point I'm trying to make with this Court is that when you have a guilt concession scheme that overall is irrational and doesn't serve any purpose for the defendant,

[00:36:52] Speaker 01:
That should implicate chronic because we don't have a complete breakdown of challenging the government's case because the council did challenge count one.

[00:37:00] Speaker 01:
But when the entire scheme just doesn't make sense, it doesn't aid the defendant, it doesn't serve any purpose for the overall defense, I would submit that in that unusual situation, which is what we have in this case, I would submit that that is a situation that would invoke the chronic automatic reversal rule.

[00:37:19] Speaker 01:
Even though the defense counsel did argue against count one in closing argument and unless the court has any other questions I'll submit on that All right.

[00:37:27] Speaker 06:
Thank you.

[00:37:27] Speaker 06:
Mr. Burcham.

[00:37:27] Speaker 06:
Thank you counsel the case is submitted and we're in recess for the day