which is the united states versus march gerr government produced an exculpatory video on the very morning of trial showing that no cocaine had been found in mr jerry's carry on bag and the erroneous exclusion of that video as well as recorded calls between mr jerry and the owners of the cocaine showing that mr jerry did not know that the suitcases that he was transporting for fancy lopez contained cocaine there were no reports property receipts or photos showing which bags the drugs had been found in although the government maintained that the drugs had been found in both the checked bags and the carry on bag mr jerry's defense is that there were no drugs in the carry on bag and he did not know that there were drugs in the two checked bags at eight thirty the morning of trial the government turned over the video the district court denied mr jerry's motion for continuance and trial began at nine o'clock with jury selection the district court did not even permit a short recess to allow defense counsel to view the video by the time defense counsel viewed the video that evening showing that no cocaine had been found in the carry on bag two witnesses had testified that three purses found with cocaine had been found in the carry on and the case agent had testified that mr jerry had been untruthful in his post arrest eight minutes when he said that he had no knowledge that was me ask a question as i understand it the the cocaine was found secreted i n a number of different items there were in some notebooks they were in secreted in hidden compartments in some purses they were hidden in some jackets a number of jackets and they were also hidden in pillows when i looked at the film clips the six minutes that c most relevant and the rest of it the items from whence the dough was taken were already out of anything and they were just all you see it is on a table there's no indication from the video when they were taken from the bags or from whom right well what you see the very first showing the search of the carry on bag right but the stuff is already out of it many of the things are already outside of the carry on bag when you see a homeland security agent going through the bag and either as you can see because they pan the whole room and you can see stuff on the table right but there's no so what i'm asking is do we know from the video we can tell when those materials the notebooks the purses the jackets the pillows were taken from any of the bags right no we don't that's why we needed to can know why but the film itself doesn't disclose that answer does it know none of the film now gone anyway  before then because we see them not we don't see anything there's no you don't see the checked bags at all and there was eighty one clips with with regard to the clear search of the hand luggage show the agents taking the clothing  putting the clothing back in is it does it matter that at that time the following is recorded just as being merely a question and this was presumably from the people who were taking the pictures is this like a procedure or do you actually think there's still some stuff answer from the person that was doing the searching no i'm not thinking their stuff we're trying to determine we're trying to what we're trying to see is he was on a trip for a week we want to make sure that he's got enough clothing that would support his story well the first issue is we don't know what they are talking about we don't know if they're talking about that particular bag but he said yes this is the video this is the audio that is right on the tape at and i also heard as long as you heard the video the agent cursing and saying why didn't you wait for me before you started this search and reject this on the grounds that it was either inconclusive hand or it could have been prejudicial it was prejudice to us by not having it in there because he completely to us this is where i'm having the problem maybe you can explain it to me if the dope had already been removed from the bags by the time the film is taken and i looked at the film and as best i can tell the purses were outside the liquid cocaine was outside the jackets were outside the bag the pillow was outside the bag they had already been removed we don't know by whom we don't know by when all we know is that at the time they going through the bags the dope was already out of the bags the problem i'm having is understanding how this adds much to the evaluation that some of the purses in fact were taken from the carrier and that's what the testimony was that's why we needed to see this video and review it and be able to interview that agent in the striped shirt that you saw who did not testify at trial and say ask him whether or not he was searching and the stuff had already been removed we still don't know who that agent is there was numerous other agents there the bottom line is we had so one day before once you knew there was a video us for the names right but we didn't get the video in the thirty day and i understand that and he wouldn't even give us a recess to allow us to even look at it it wasn't until after all the witnesses testified that we looked at the video i take it there's no suggestion that the government wrongfully withheld or suppressed the information they gave it to you was soon as they got it yes but as you know judge under cars versus white you know i understand i'm just i'm just trying to find out factually whether there was any suggestion that the government had sat on that or not the prosecutors but the agent because the agents and two of this of the customs and border patrol people were there and they knew with a film crew they even testified one of the agents name i wanna testified that i've never seen a film crew back there in the restricted area before this is the only time and judge moore did point out so the film crew was there at like four or five in the morning and the prosecutor said yes basically it was precluded the judge when we went to offer it he didn't care that we had a right to present e a lack of knowledge or intent on the part of the the defendant that seems to me to be the essential question i guess what would be helpful for me is for you it explained to me in particular how the dope having been two officers who we contend are lying and we would have no no but i guess the point i'm trying to make is if you look forget what anyone said if you just look at the film there's one clip where the officer is going through the bag and when he's finished the camera pans the room right and you can see the stuff from whence the dope was taken are already out on a tear after couple of tables you can see the purses the notebooks all of that's already out it doesn't depend on the testimony of anyone you can see that the receptacles the vessels from whence the do came already were outside the bear i have i missed apprehended that that is one interpretation had we been presented with the video and allowed to interview the witnesses we could determined whether all that don't also included stuff from the carry on bag because if you look at all eighty one of those clips there is nothing showing that they checked bags the only thing is the carry on bag and i'm running out of time judge but it's all right you take your time even if the video itself was not admissible it could have led to the discovery admissible evidence under brady and the district court did not know that because he did every even bothered to look at the video and he just relied on what tell me what it would have led to well it probably would have led to we could have had an expert we could have had an opportunity to impeach the witnesses who already testified because you can hear the female officer laura seeker on there saying something we could have interviewed the guy in the striped shirt who was searching the bag we could have interviewed the film crew we could've you know we could have done a whole investigation and found out exactly what was going on and we had no opportunity to make any use of this evidence and it was and we have a right to be able to lakeview it and it did pertain to the elements of the charge defenses knowledge it did have a substantial impact on the credibility of the witnesses and it certainly placed the story presented by the government in a significantly different light such that a jury might have received it differently that together with the trold calls when you look at the control calls that were excluded they were but they were recorded for like there was twelve calls it was four hours after mr jerry clearly not relevant in fact they were totally relevant because they went to his defense and they were not overwhelmingly prejudicial because the government is the one that made the call the agent made the calls if they tell him after this was after the arrest had occurred right to help them yes and he agreed to make controlled this it's lopez right woman in there with me for a second he agreed to make the calls did not the agents instruct him what it was he was supposed to say yes but he didn't struck the people on the other end oh i understand that they told him what to say post arrest right but then when he says i think there's drugs in here fancy lopez says no it's not what you see leaking is vitamins and then she gets her sister and puts her sister on the phone the one who gave the bags from peru and she said no it's a box of a reg no and then they have another woman who actually came to miami she lived in miami she and her husband was in the testimony met with the agent this is like days after trying to still get the bags because they clearly did not know that mr jerry had been arrested otherwise they never would have shown up to get the bags that woman is saying no what you're seeing is corn meal or corn starch they were not the bottom line is that they're not hearsay because they were not being offered for the truth of the matter asserted they were not being offered to prove that there was vitamins in there or cornstarch or a reg and they were being offered to prove the lies being told to mr jerry to encourage him to continue with this trip on on to new york and the government's failure to even address mr jerry's argument in its brief that the calls are hearsay is a tacit confession that they were not no hearsay exception is needed since they were not hearsay the bottom line is had the jury been able to hear the calls and view the video and been presented with the proper impeachment of the government witnesses and what ever other witnesses and evidence the defense would have been able to develop based on that video in short had the district court not precluded mr jerry's entire defense it would have put the evidence presented by the government in the appropriate context with the jury likely to have returned a not guilty verdict because these were preserved constitutional errors and the government has not proven beyond a reasonable doubt i want to make a comment about the video with respect to the motion for continuance i think it's important to remember that when they looked at the video the defense saw the video on the night of the day that it was given to them at that point the government's case was still ongoing so they saw the video and had time to use it during their case in chief and whenever the government know of the existence of the video at down here a little bit and have a look at that video because it's very unusual that you have a video of a drunk church they did that i mean it was brought up on the morning of trial that the video had been on the other side asked for a continuance right again you're on the other can we have a continuance or are you know and the government says no you need a continuance just move on we've already you know we've already got some testimony in the can maybe we'll get some more and again it's hard for me to stand here and tell you that the district judge probably should have looked at the video before he denied the motion so there are six hours of video he looks  none of that they make a motion really before the trial begins he says denied and that that's basically the state of the record well i wouldn't go that far your honor let me make two points on that first of all if you look at the judge's later denial of the motion for new trial it's clear by that time the court has looked at the video court probably did not look at the video before denying a motion for continu you have to consider that there was evidence i thought i'm that the judge is looking at that and after the trial he's looking at it through the filter of what the evidence has come into right and so he's making a judgment to to think that he should grant a continuance to look at this video but this is at the time the motion for the continuance is coming before as i understand it mr jerry had a chance to have his counsel look at the video so the videos on the table the trial is cranked up some witnesses of already testified and the defendant comes in and says wait a second shan't we slow this thing down because there's a potentially material piece of evidence here that we have had a chance to look at the judge has an issues to look at you're right there's no question i mean the judge says fire up the engines and i say well that as i can and i can explain why i did all this i sense is that the government that the district court heard the government's pro trial up and the discussion about the video is right up front yes and what was the proffer of the government to the government saying the government has seen the video the government tells the district court what's in the video and the government says this is irrelevant to the issues a trial stand here today and telling you it was an error to have said that two or three times i probably would not have done the same thing i probably would have looked at the video myself before making an independent ruling and denying the motion for continuance it's hard for me to stand here and tell you that the judge made the right decision ok you know what's very is that i mean where does that leave us where that really important question of whether or not the judge was correct that the video ultimately after the fact whether or not the judge made the correct ruling if there had been a motion for a continuance she would then have an opportunity to formulate possibly a whole series of lines of argument she'd like to know who did it she'd like maybe perhaps some when she'd like to call she might have been armed with some arguments that she might make if she wanted to call the people who are actually doing the searching and i watch them and all of that was blocked out because my on the end of the game when the judge was ok for me to exclude it was too late for her ever to formulate any of those positions i think that's entirely accurate your honor because like i said she looked at the video while the government's case was still going on you say how looked at it let how long did the trial last a day and a half so you had six hours of tape trial begins in the morning the motion is made it's discussed it's denied the jury is selected the witnesses go on that night they get a chance to review the video there's still some trial left the next day they finish up the next day it goes to the jury the next day yes or oh it would be fair to say there wasn't much time to digest six hours of tape maybe it didn't matter maybe it's not extend all the jury but from judge i mean there's eighty one clips here they're about average about a minute each we're talking about eighty one minutes of film footage most of which isn't even hurt at all because it shows pictures of planes flying in the air and cars certainly if you were defense counsel you'd want to look at every single piece of the tell you because you say this maybe i don't mind i'm not following the thread here because what i'm saying is she had an opportunity to look at it when the government was still putting on its case so if anything had come up in that video that she really thought was useful she still had an opportunity to say judge we've looked at the video and now that we've seen it we can make use of this in our case but there wasn't that argument me ask the question this way mr do rows and assume for the purposes of my question that the judge should have slowed down and should have said as you've essentially conceded let's take a look at this let's see what they were is we'll pick the jury the bar with the day after and we'll see where we are there he didn't do that the essential question as i see it is does it matter is there some reason probability it would have made a difference is there something arguably exculpatory in it miss paris argues that there are two things that are arguably exculpatory if i have the essence of her argument the first is you see an agent go in through the carry on bag and plainly he finds nothing in it and that tends to suggest a lack of knowledge on the part of the  defendant and it corroborates by that account his defense that he did not know he was duped the second argument she makes is and she states it at a very high order of abstraction but she says it might have provided additional stuff for impeachment of the agents who testified it didn't matter you tell me zero probability you know why well i think it's important to recognize that the that the basis of her argument that these oryx call for torrie is distilled in the fact that she said three times in both her initial brief in a reply brief that the video shows the carry on bag being opened as if to suggest that the crew filmed it as it was being open for the first time and that there were no drugs there that's not true and you've already seen the clip so you know that the two clips that show the carry on bags show the bag already opened and that is in the context of all the other clip showing all of the clip show the bag and one clip on the back mean closed and then there's a clip of it open and he was being opened by it was the baggage standing there and then they open the bag that's not on film the bag being opened is not on film here are the back already opened is on the film and that's in the context and in conjunction with the view of ten persons on the table now you can count the persons you look at the table the camera lingers over the ten persons you can count them that's how many purses there were officer lost or rico and officer agree on a boat testified that there were ten purses that three of those ten purses were taken out of the rolling carry on bag that's what you see on the table ten purses all you have is the testimony that they were already taken out of the back and you have further context here because if you look at their testimony at trial they've said that we took them to me ask you just to follow up on what you just said mr de rosa so three of the purses the purses and the jackets and the notebooks or already out of the bag that's clear because you can see it on the table when they pan the what testimony is there and from whom about who and when they were taken out and from whence they came if some testimony about that right or some testimony yes you're talking about at the initial secondary inspection when they first discovered it or when everything was pulled out later on in the foresman r l we know that at some point but before that he searches the bag the items that contained the drugs had already been removed from the bag or had been removed from something from the climate testimony is there about that well the testimony starts with officer los rican officer who testified that once we discovered a couple of packages in one jacket and in the false bottom of one purse mr gerry let me just stop you the jacket and the jacket in the purse were found where at the secondary inspection station outside of this room that you see in the video right but where were they found in the bag where they found i mean where exactly did they get the jacket in the person you know whether it's a checked bag or the carry on so that's not clear from the have that's not clear from the evidence all you know is that the first item was was a jacket that was taken out of a suitcase and handed to officer lawson rico put it through the x ray and saw the packages wasn't there testimony that said we're really not sure all of these drugs that are on the table we're not sure on which bag an the question was asked about focusing on whether or not material actually come out the carry on there was and it was inconclusive i'm not following i got testimony of the judge was saying well that you already had a chance to explore the question of whether or not to impeach him on wednesdays on what came from where the testimony was that ten purses came from all three bags you don't know beyond three of those purses coming from the carry on how many came from the other two bags whether one had seven in it or whether the other had six and one or five in every person drugs and that every person had a false bottom which was like a rubber bottom and inside that rubber bottom at least all ten purses had drugs and them yes ma'am and the evidence shows that yes ma'am and so therefore three that came out of the carry on drugs and yes in a false bottom yes ma'am right and then also found were some notebooks and there were drugs secreted in the notebooks as well no books i think they were cookbooks maybe in the form of notebooks they were in the drawer where what sort of sealed within it something else in the in the back in the hard backing of the do we know from the testimony where those notebooks came from whether it came from the carry on bag or the checked bag did you not ok and what about the jackets themselves they were how many of those of them each of which had cocaine secreted in lining yes and all we know is they came from the bags in the aggregate how many came from one bag as opposed to the other we don't know wrecked and then the final item was liquid cocaine two bottles of piss go that were not in the in the carry on i don't think there was any testimony about specifically what bag that came out of that contain liquid cocaine correct so the only item that there was specific testimony on that came from the carry on bag was three purses with false bottoms each of which had drugs in them that testimony came from both the officers who were there at the secondary inspection station and took the three purses out of the the rolling carry on bag yes or no they are hearsay in fact to her argument on her and then are they being offered for the truth statement or the last argument in the reply brief before she appeared in court today was that they were hearsay but that they satisf the hearsay exception or eight zero three three to show fancy lopez a state of mind that was the argument that it was hearsay but it satisfied a hearsay exception and the government's response to that was fancy lopez's state of  not relevant and that's why the judge kept it out now she's saying this is the third argument i've heard in a different form now she's saying that no it wasn't here say it was for the truth of the matter well you're asking for four hearsay statements to come in to prove the truth of the matter that max jury didn't know that there was a coke cocaine in this in the suitcase  been here saying if in the course of the dialogue with the defendant lopez had said something that incriminated lopez would that have been hearsay or would that have been admissible i would have been hearsay your honor it would still have miscible would it be a declaration against the penal interest of fancy lopez it would have been a declaration against why wouldn't it have been admissible then and if the answer was yes if it's a false exculpatory statement why wouldn't it coming on that's the area as well if it's if it's false  then it's not it's not going to help him you know how do we know that ok ok now we're moving on to grounds of relevance as opposed to whether it's inadmissible because it's inherently  untrustworthy right right it's inherently untrustworthy because we don't know whether she can seems to me the more serious question is how could it have been relevant if they put him up to have this conversation unless there was something that came out from the mouth of fancy lopez i'm sorry i said job i shouldn't have done it that would've been most assuredly relevant to the defense of lack of knowledge on the part of the defendant but you don't have experts i've had a lot of cases where the government just written me says because we know the agents how to get into their opinion about what drug carriers to about the drug trafficking try how it works they get into this right reason he wandered into this is because the court ruled that the defense opened the door to allow him to testify to certain areas had but he wouldn't have it seems to me that often this occurs that they get into a routine practice of it is that a film crew from some private film organization gets into the customs enclosure and just starts filming away materials in connection with a seizure on a bus that had just occurred just common occurrence can we tell anything from the record about any of this or is this all stuff that we can discern nothing because the record is i don't i'm not sure why you're asking the question but you know i recognize that these things happen i'll tell you why i'm asking the question so i can be as plain an up front as i can be if  private camera crews roaming around m i a taken pictures every time there's a bust going through the records going through the materials recording statements made by various agents and this stuff is unbeknownst to fender in a in a case they just don't bring it to the prosecutor's attention you can have stuff in there that may be most material and relevant in jermain and it may very well be highly exculpatory in nature and i'm just concerned about a process and a practice about which you know precious little i'm not saying they're not entitled to allow a film crew  d that's not my point i'm simply saying if this is a common kind of occurrence you've got some real you've got some real concerns and issues here that occur in the course of the actual arrest in the search and the answer to me is that may be very interesting judge marcus we can tell nothing from this record thank you very much which is i think what i hear you say we can yes it's notably absent but i think there are certain things we can tell from the record and that's the is that i don't know how often this happens because that's not clear from the record but the fact that it happened in this case it raises certainly to them it concerns but i think in my opinion that this was a very circumspect way of dealing with a crew that wanted to film something for a television show everything was done in the aftermath they didn't let this crew just start filming and inspection at a secondary inspection station everything was controlled and it was circumspect because all they were allowed to film was the aftermath after everything had already occurred and at that point it's like the district judge ultimately determine that's really irrelevant to whether or not the defendant knew there were drugs in the suitcases when he imported i'm from peru and also film him walking away in handcuffs right i don't know if that was him or not your honor i mean that you know it could have been a so you could only see the back but you only see the back so you know what  can we say about that we have to draw inferences again i thought that was rather circumspect the fact that they didn't film his face it shows you that there was some control and limits placed on this film crew when they were doing what they were doing thank you very m first of all judge with regard to that we specifically demanded the memorandum of understanding in our motion to compel between h s i and the film crew that was denied with respect to  the my argument that this is hearsay that i'm saying it's not hearsay for the first time in fact on december tenth at the calendar call the defense counsel said judge this is not hearsay in my initial brief i said this is not hearsay the government didn't even address that they just went right into the fact that it is hearsay here's the hearsay exceptions with respect to the controlled calls what you said about there's nothing exculpatory and while those and she could have i guess known that that mr jerry had been arrested or something where she would have said something in copa tory while the calls took place on october ninth for four hours she continued this is fancy lopez and the evidence is in there she continued to text the agent october fourteenth fifteenth sixteenth november second fourth fifth six december first trying to get those suitcases had she known mr jerry was arrested then she wouldn't have been trying to get the suitcases also there was a meeting at de route with her cousin and another individual where they went and tried to get the suitcases and then they left they didn't take the suitcases there was a question about what was found exactly what and where it was found in fact the testimony is that if it is to be believed the only drugs that were found in the carry on if you believe it which i don't was the three cocaine laden purses all the other stuff was found in all the checked bags with reese back to this whole discussion about the aftermath and this whole thing about when it was discussed with the judge was it you know for the motion for continuance in fact the very first day of trial when they go in there and the defense counsel says judge we have a motion pending it was filmed last night regarding the filming i've already ruled on it is his answer and he moves on he says it was denied and she said judge just to make the record i understand the jury is coming out but at this point we believe our ability to effectively represent mr jerry is compromise not having seen the film of the video seizure he tells or you can have a seat and then the very next day when they move to try and get those two film clips in he threatens her with an ethics complaint he tells her she's trying to smear law enforcement it's a red herring it's a waste of time and he questions whether or not there is should she go to can he go to her boss or is there a place where he can complain about what she's doing because she's attempting to smear law enforcement judge she was just trying to defend her client we ask that you take the convictions and remand for a new trial thank you very much thank you both proceed to the next case