good morning your honor bravo royce for defending mr garcia in this case we have two distinct groups of issues we're dealing with the first is whether or not there was improper judicial notice when the judge took judicial notice of a document that is his clerk down there's a problem we're seeing the break no but what second now i thought and i think we all think the same thing that the judge who was lockhart found a website and took a page of that that he wanted to take judicial exemption waiver and then it goes on there and the issue is what is your objection to what it what is your objection what words do you object i think the question is what about what is it about the content that you think was problem and cause problems for trickery absolutely your honor i think the way that the manual puts things it groups everything that happens during that process is part of the interview the english test the questions about your background everything else and whether or not something was an interview wound up being one of the key parts of this case because it's a question of did you lied in interview is your argument that that compilation of what happens you think somebody might be confused to believe that any part thereof is an interview where you say the interview is a distinct and separate part of the process that is exactly the are shown in other words you say your client can take the english test and take the american government test but that doesn't exactly that means you leave maybe i didn't understand the question properly then i don't think you i think you do you answer them consistently but isn't there you may say there's evidence that cuts the other way but isn't there evidence from which the jury could find that on and that may interaction he your client was in fact interviewed no matter how small you could interview there was a discussion with him about i think there's a reasonable for you just and there's evidence that you can see that would allow the julian bond it was an interview of your client and may in which case there would be a first interview the jury could find and therefore he'd made a misstatement about his criminal conduct since his first interview your honor i think that's a question the jury should have decided and i did decide it they did your honor but they decided in part based on documents were provided to them by the judge could i i'm my question we're back to that and it's a two part question what's wrong with two to disagree noticing information on government web sites we actually do it a lot i've written opinions where we' traditionally noticed information from the centers for disease control for example why is that a problem or are you saying that that is not what the problem is the problem is with the fact that all of it is taken together might be gives might create an inference in some minds that all of those activities are part of an interview that is that i'm still not sure why information that may be construed against your client becomes objectionable for that reason alone that's what i'm having trouble with i think it's different than hard data that you might see when you look at you know the center for disease control that forty two percent of cases of x y and z actually you would be surprised there are there's also data on the centers for disease control about processes and this is just a process it's or this happens this happens and your honor that i don't think when we if we go if we go straight to the rule i think we can divide the side issue straight through we've got one part one of rule two and big information that's generally known within the territory jurisdiction i don't think that's an issue but whether it can be accurately accurately and readily determine from sources is accuracy can't reasonably quote be questioned and it was reasonably questioned by the defense it's accuracy what about its accuracy it's question you're not objecting to the words you're objecting to the perception that can be drawn from the organisation you're not that's another layer of problem for me you see what i'm saying you're not saying that for instance you don't  what's wrong with that i'm not saying there's nothing wrong with that your honor something is not that at all and you've got this the defense lawyer that's trying to get these witnesses to say this or this but out of a i live by asking you what words do you object to and then we've now i think when we don't we don't object to any particular words you just object to how that could be read a jack to the structure your honor the way the words are organized gives the impression that this is all part of the interview that  the history test the natural you know the the oh the everything's part of the interview do you think the government needed this at all for there to win this case a massive government that do you think it seems to me they don't they have people testify and he was interviewed i think that's a question that's that's impossible to say your honor because you know it's not impossible you either somebody said it on they didn't say it in the record on and off i think there's a reasonable possibility the jury could have come back the other way if they had not and then she said that nationally what we've already established is evidence in the record from which the jury could decide that the may interview the main interaction honor i think the government did the this in that case the reason is because there is some doubt going back there as to whether or not this interview and that's something the jury's going to go back there and discuss we operate under the assumption th jury's going to listen to what the judge tells them you know i don't know if they'll do that or not but that's the assumption we operate on and if we're talking about  and i don't want to make you spend all your time on that part of your argument you don't think that is the critical part of your argument is there any other anything else you want to argue i'm happy to stick to this trying to think it's a big deal i'm happy if you're happy all right your honor i think it's a big deal especially in a case for a padded judge that said you know this is a weak case he wasn't sure when he sent it back to the jury there's an issue about whether or not this a tipping point and if we're going to talk about rules that were  can't allow judges to just take you dish notice of various things that the jury should decide on that are things that are of unquestioned accuracy which you like and you've gotten right down to the nub of my problem there is nothing about it it i i don't know how someone what inference someone might or might draw from but there's a difference in your argument between you and i tend to think we've hit a deadlock all along with a dead end with this one i understand your point i'm still unclear why you think the fact that some inference could be taken from the structure is a make or break break problem i think the structure defines all these things as part of an interview  now that we've established everybody's satisfaction that count one involves november numbering carsey yes some whatever took place did garcia sign a completed form in four hundred which asked about erastus and he doesn't disclose his september fraud arrest is that correct but if so what else is there that your honor we don't know that that question was asked on november does he truthfully and then he signed it wasn't able to testify that they went over that part of the form your honor you know there is a but the questions are on the form that he saw the questions are in the form that he signed which includes questions twenty three if you've ever given false or misleading on the form in the sense that i'm not sure what you the rest of your argument could be the argument is that we don't know whether or not that information was reviewed with him back in may or if he came back in november and the officer doesn't ask any of those things it doesn't matter if the jury can draw reasonable inference from the fact that he's on the phone that had that misinformation on it and is that you might offer evidence and argument maybe to account of that but it doesn't counter the information of the form itself i understand your honor but i think we're dealing with speculation that's that's not sufficient understand your point your honor but i think in conjunction with officer winds testimony we're still dealing with so much speculation as to when the questions were asked that is that we don't know let's talk about counting let's put that on is as a matter of law i understand your honor but i think looking at that as a reasonable juror when you look at the u s yes field manual when you look at the regulations in the united and there's no evidence to show that he was interviewed yes there is evidence there's evidence going about those charges that would be in an interview and when he's told to come back in the form set to say it report for a re interview yes your honor and i think that gets back to the issue of judicial notice and how the judicial notice undoubtedly unintentional but judge cockburn the district court did take traditional notice of certain portions of the field manual yes that and that it appears on page five hundred fifty three of the joint appendix he states that he will take judicial notice of a portion of it on pages five hundred sixty to sixty one he says that again and the actual pages at seven thirty eight point one in the joint of israel you surprised at the three of us read the record i am not but i'm just going to give you all the information i hope that you need to establish in fact in the district court's order where the district court the knives the motion to the motion for new trial the district court actually relies on that field manual to establish that it was and that the interview first occurred on may thirty first two thousand and six at that was first interview so matter for yes for his stat  and so he has to show that there that an error infected or both counts are he did i can't remember you won't this judicial notice taken of the government did not but i don't think it was a problem at all i think the judge cochran was on on firm ground when he decided to take judicial notice of a government website this was information that is publicly disseminated to a rather disseminated by a government agency to agency to the public and here's the thing about the information that he took judicial notice of all it told us all it told the jury was what ordinarily occurs during a naturally sation interview that discussed was something along about this is misleading or is it looks like to me you could read it either way right and i think that the defendant objected to it on basically the same grounds saying that it don't believe that the defendant ever actually challenge to the accuracy of the information before the jury but that's not what he's challenging i mean it's not misleading the nature of the structure of it the troubles that he finds troubl right i'm i'm a little bit confused about what is it what how that i don't understand exactly what he means about the structure honestly i mean what what is in here is it not my only to follow up and to teach his question did he make that argument about the misleading the true of the structure not to the jury your honor and i'm not even sure i would say he made it to the district court in quite that those terms but in any event i do concede that he objected to it i don't believe it was a problem because this information is just sort of what ordinarily occurs it doesn't describe or interpret foerster us the government's position on what the hc interview with us is that all of that is that part of that what is the government's view of what and interviewers your honor i would refer the court to office or immigration services officer barbie's testimony that is all of it it includes the test the testing the civics and the english testing and the questions that are asked so any of those constituent parts would in fact by itself be the would mean that he had been interviewed sure yes absolutely and testifies that the examination is part of the interview that's all we need does that matter for purposes through no because his argument on count one is restricted to the i believe he is arguing that agent wins testimony didn't require didn't i'm not sure what the are you that that i can i think i can help i i think that what he is arguing is that agent when never articulated that he asked him they're exempt first interview about his criminal history but agent when and party both looked at the the the in four hundred form that had been completed and just said someone did because there are red check marks but officer when former immigration services officer when did not specifically recall whether he had been the person to ask about the criminal history what is undisputed are a couple of things that are critical first of all he was asked about it and we know he was actually asked about it in may because ricin ski asked him to bring documentation about that those offenses to the re interview and it was called  and he understood the government could say that julian would find a good fine he understood reinterview had first interview come back for no absolutely if i recall his upon his argument on the count one yes i mean he certainly mixed it doesn't look right although i don't think that the legal argument on appeal is that he didn't understand english that quite figure out what it was to be honest with you know i'm trying to figure it out now to put that all human on the table right you say as far was a language barrier that somehow caused him to be unknowingly have have provided false information have by the way has that argument if you didn't testify and somebody say you didn't really know what you  it makes it very difficult your i don't know an audience right now i understand you did not take the stand to say i was confused he did not i don't see how you there can be an oh i don't know where there's any evidence from which you could even argue that he was confused there's no evidence to say no he did actually argue confusion he argued that there was a language barrier any use the english test and said you know certain documents where his signature was slightly different or better he never said there was a language they never said that he never testified but the point is the jury could find that the officer said you know yes he did understand english and he passed the english test that very day that's right and in terms of the knowingly element we also have the fact you all you that it was and the jury could so find because of what you've already said yes is the note to bring documents they can be gone and come back for you re interview we also have other testimony mccolgan for example testifies that skit was the first person to interview garcia barbie testifies that when testified that he was the second officer to interview garcia so we have multiple places in the record where there is testing issues something else do you think th garcia gets to take advantage of and benefit from some technical argument about what is and is not a conviction how does he get up and take advantage of that all of them unless a guilty plea as a matter of law is not a conviction you with me on that i am only of maybe then but otherwise how does he factually get to say i did it in a guilty plea but if you go and look at and read carefully and read the nuances a guilty plea is not a conviction when in fact there's all they have his argument is you don't even understand english yes i guess your honor my response to that is this unless he testified i do not understand how he could not going to his knowing his confusion but he never said anything he did not he did not and in the absence of that testimony i don't think he does have an argument the jury had an lives as a matter of role he wins narrow issue the only way he wins it on this record is if we decide as a matter of law all right wrong each would be contrary to this court's decision in benton of his that we would i understand i just want to throw that out there two thousand and eight it was our office it was your honor a no it's easy to say that this is just that the u s c i s website documented its just a document that really doesn't have much import in this but the fact is it's interacts violation of is in accurate balance of the law because the implication of that is that everything is part of the interview can you point to a page and a lot on the particular page and  say is inaccurate yes your honor work it's seven thirty eight point two it says during your naturalization interview us yes officer will ask you questions about your application and background you also take an english and civics test unless you qualify for  ion or waiver and the way it's structured it gives the implication there that everything is part of the interview process and the government's right and it could but it could also lead to the inference that two sentences are separate  they're two different things and you could have argued that it could your honour's you didn't do it that's correct your honor but i think we're dealing with a rule here that says we've got to ask things which accuracy cannot reasonably be questioned i think there's an english and civics test that's accurate i think it's misleading your honor the i think the structure of it could mislead the jury and i think it's akin to whether or not a judge might in a certain trial take judicial notice of certain police departments lineup procedures or you know whatever else you know i think if we're talking about rules here the rule is you fall rule to a one b you take to dish on those things whose accuracy cannot reasonably be questioned but but but sometimes even if you were right and part of that judges can make errors but we have homeless errors to you we do have harmless errors your honor but i think when we're dealing with it everyone submitted timelines left and right about you know they met this time there's interviews are not interviews and we made our own to you see you may have your honor but i think that interview it and what it is and what it is it was a crucial part of this case and not only does that confuse the jury but it