hartzler federal defenders on behalf of mr assertive the trial court misuse the doctrine of judicial notice judicial notice recognizes facts not subject to reasonable dispute but it does not cure or eviden objections because the trial court misunderstood this and will continue to do so absent intervention the court should reverse the conviction and remained for a new trial there's three reasons here why the court trial court misapplied the doctrine of judicial notice first of all the trial court was essentially admitting using judicial notice to admit documents rather than facts but it's very clear that in the language of the federal rules of evidence that you actually use judicial notice to admit a fact that is that's beyond a reasonable dispute rather than the document itself all those arguments you make in that say i agree with you and all those you won because the jury did not find your guy guilty of the phone and they found him uttal they relied heavily on these florida documents to show the element of an edge they actually quoted whole excerpts from them and if the if the government said that the evidence of an age was that overwhelming they would have needed to do so the second reason is that this case is a little bit unusual in that there were no documents submitted from the a file from the immigration file normally in a thirteen twenty five or thirteen twenty six there's all the documents from prior deportations and all of those go to the element of alien edge here none of those documents were submitted so then we have to look to the issue of what is sufficiency what is sufficient evidence to prove alien it and what one of the gun ments own cases says is that if you have the admission of alien edge from the defendant combined with motive entry that is not sufficient here that's all the government had so as a matter of law frankly there had to be prejudice because legally it would have even satisfied a rule twenty nine sufficiency the evidence under this court's case law let alone the much higher standard that we're dealing with here in terms of the government having to prove beyond a reasonable experience but the trial court then didn't go on to say well at a minimum you know you only need to consider this is a fact rather than to the document that the trial court gave the court the jury no guidance whatsoever on how to use these documents and how to just crn what is allowed to be considered under judicial notice and what's not and because of those three reasons your honor we believe there's prejudice here let me ask you on the u s some three  honor and we agree that the judge didn't specifically say judicial notice in regards to this one document the judge didn't give another basis for admitting it so i think that we would be correct in saying that you could infer judicial notice but but i take  point in terms of whether it would come in under the public record exception i think there is case law your honor saying that it that booking documents like this would i think the problem then goes to the fact of almost a a double hearsay because you have information within this booking document that we don't know where it came from we have things about the person's date of birth i think that's the main thing and the problem is that at the time that this booking document was created certain had already been under arrest for about three months so i don't think this information could have come from him i think it came from someone else another law enforcement person but it was still come in a supposed records it could still let me your your honor i think this court's case law is been a little inconsistent and i do want to be up front about that or nan has said and i'm quoting from an end as we do not hold that the mode of the defendant's entry is sufficient corroboration of admission that the defendant is an alien inconsistent with the prior decision and hernandez and so i fully accept that there's some question on on what is the standard for a rule twenty nine in terms of what evidence would be sufficient to prove alien edge but what i would say your honor is that at a minimum the standard that we're dealing with here is much higher the government has the person the burden to prove harmlessness beyond a reasonable doubt so inconsistency on the much lower standard of a rule twenty nine  i think there's just no way to find that the government has met its burden and if there's no other questions right now i'll reserve the remainder of my time thank  please the court date was if again i'll be at the united states your honor there was only one if you get a reservation for that if there is only one issue in dispute in this trial and that was whether the defendant had been previously convicted in florida so that a felony offense would apply in this case from the outset of opening statement through the cross examination of every witness and through closing statement the defense made it clear that that was the only issue the only argument was whether this  ramirez was the same louis serta remember as he was convicted in florida and as your honor noted they won the jury acquitted on that count and at least one of them found that the united states had not met its burden well so your argument is it's ok that those documents came in even though they weren't supposed to and i assume from that you've taken we really have an obligation to make sure that the documents came in according to the rules of evidence no harm no foul i mean are you here arguing that the district court properly admitted they contested documents under the judicial notice your honor i wouldn't say it's no harm no foul that argument is simply to say that this is harmless regardless of not i understand harmless but i just just trying to figure out what is your position because i mean i'm sure you deal with this a lot and i'm just curious to see what the practice is here and what your promise is practices here in getting stablish in many of the cases that you have so do you are you here arguing that they were properly admitted under judicial notice i don't think you argued that in your briefs so i just try to figure out what's your position know your honor we're not doing that i think as you pointed out one of the four documents was not admitted with judicial notice at all the court said it was an official document that laid the groundwork with the marshal who testified that they were under a duty to put the evidence or that information into the database the remaining three we agree you should not have been judicially noticed as facts i mean my understanding is that's more appropriate for you know it's the sun is up at two pm or  size of a metropolitan city or some undisputed fact and not an actual document and i don't recall did the government tell the judge that at the time and but independent of what the  crimea it seems like you all should have an obligation to do that if you know that something's coming in without the proper basis and i understand the judge can do ultimately what the judge wants and we can deal with that later but i was just surprised to see  that there was no there's not more at least from the record that i saw of the government really trying to state that correctly for the court what would be proper what would be proper yes  and in hindsight that the prosecutor should have done that i think when you're standing in his position in the sort of heat of trial and the judge is telling you authoritatively this is the law it's difficult i would think as a you know younger prosecutor say no your honor you're absolutely wrong we're going to do it this way at all that having been said that acknowledgment is important though right now i just didn't know if that was your practice is like ok we know differently but we're going to let that slide so because it seems like in the lawyers do have an obligation to it because if the judge is doing something in their mail may be incorrect i think they want the opportunity to have all the information in front of them yes correct information yes but then the court's case law is also clear that regardless of how the court accepted the documents and on appeal this court can look at all all the records to determine whether they would have been admissible here or the judgment was certainly admissible under a specific hearsay exception  particular provision which is to create twenty two d s term or what it was it says that it's ok for it to come in if it's the prior conviction of the defendant and that was what was at issue so i'm just wondering if that was properly admitted yes your honor i think the question of whether it was or was not the defendant is certainly something that the defense could argue and did argue but as sort of then how was it properly unless you could establish that it was the defendant because i think i mean it's sounds like it was admitted and i'm sorry for interrupting you but provisionally and i'm just not sure that was there's a basis for that for you and i think the  initial threshold question for whether the united states has shown enough for it to fit within the rules of evidence is a fairly low bar once the united states presented some evidence and here  largely overwhelming evidence that this was the same person the court was obviously not so overwhelmingly because not beyond a reasonable doubt to the people who were here in the case because it looks like they didn't except that i'm just trying to figure out why and was there there was no ruling that just came in under the prior i mean i'm not quite sure what happened leading up to its admission but it seems like it's the same reason if it's a prior conviction of the defendant right and my response to that i believe it's one of four sets the standard for what the district court asked to see before it and minutes evidence under hearsay exception is  low standard all the united states had to do is present the government exact language but it's sort of a prima facia showing that that document was a conviction of this defendant once the court put that into evidence then then the question of whether it was or wasn't is a separate issue i support as opposed to that initial threshold depending upon what other evidence or may have been it would have been perhaps appropriate for the jury to consider the document as they considered whether or not it was their person or not yes and ultimately again not to circle back to where i started none of this really matters they all come back to that she raised three points in her argument and prejudice addressed those three points and why it's but most of the other discussion was about the defendant's admission the videotaped admission when he came across the border and secondly along the same lines the evidence of alien edge in this case was not even in dispute and the evidence of it was overwhelming with or without that guilty plea colloquy i mean this this is a defendant who climbed over a twelve foot fence in a remote area who ran away from border patrol agents who then told the first border patrol agent that he was an alien then in a videotaped interview that the jury saw again admitted that he was an alien and then his defense counsel in closing stood up and conceded that he was not contesting that he was an alien so the idea that somehow this judgment of conviction whether or not these documents came in would not have made a difference in the outcome of trial thank you will do you have any questions no question honor just starting with the final argument that my friend on the other side has made that we admitted alienated trial i think it's very difficult to know whether we would have done the same if those documents one admitted if those documents hadn't been admitted then legally as we pointed to the court's decision and hernandez there would not have been sufficient evidence of alien edge at that point i think it's entirely possible that we would not have conceded alienates during the trial so i don't think that that's a proper consideration for he is an alien now the problem is that there is this court's decision in james which says that you can't waive an element of a crime so even though we said that the government still had to meet its burden on that element and so that's another reason why we think that this is not necessarily dispositive of the issue of prejudice but certainly the documents aside was in there as opposing counsel just summarize some circumstantial evidence that would support the wall correct but i think that i would go to motive entry and so i think that that those we agree that that was the evidence at trial i think then the next question is is that legally sufficient under even the lower rule twenty nine standard i think under this court's decision and hernandez it's not and there may be some contrary case law on that but if it can't meet the rule twenty nine standard i don't think it can meet the much higher harmless beyond a reasonable doubt standard and the final court i think final thought i would just leave this court with is this if the court believes that there that this is harmless that somehow the government has met that high standard we would still ask this court to at the very  least find error on this find that this was not properly admit these documents were not properly admitted under just a judicial notice and the reason for that is that this is something that this particular trial court has done on several occasions and that i'm aware that at least one other district court in the southern district has done so at a minimum i think it would be very helpful to this analysis for the court to clarify that this is not a proper means of admitting documents a trial so you would not want us to start