government let off in their opening statement going through their entire theory and the witnesses they used the trial were not any of the five alleged victims but were various witnesses that were used to get in the statements of the five alleged victims in violation of the confrontation clause and i ask you a threshold question about your confrontation argument are you confident that you have adequately brief that issue such that it is before us i don't think i've ever quite seen i haven't been on the court quite as long as my colleagues have been i don't know that i've seen a brief that essentially provides a bullet list recitation of alleged errors with no real explanation and we've got precedent that says if you just flag things and don't really argue them they're not preserved for appeal i think they were argued and i think that the case that the government sites and l are be very plain at georgia is not really applicable in mind that the limits and i think i came within twenty eight words of the word limit and here the confrontation clause in hearsay errors was so extensive there was twenty six i don't think i've ever seen a case where i had twenty six separate confrontation clause and hearsay errors so many of which were were admitted as under what the district court found in the government it argued w exceptions to the hearsay rule and we don't have any explanation in your brief about why those statements don't fit within those exceptions well i think i think it's clear that those statements don't fit within those exceptions the the mcclim n l r b versus mclean and georgia case basically held that the are the arguments were preserved because the government was on notice and they were able to respond to them in their briefs and if the the difficulty is from our perspective is that when we get a brief that looks like this we and i use the royal we because what i really mean by that quite frankly is my law clerk god bless or had to create for me in a pending innocence of your twenty six arguments and chase them all down because there was no you hadn't really given us a lead about what your argument really was so she had to go recreate all of that from whole cloth so that i could understand what was going on in the brief well i think the the brief has specific citations each era and basically what i was because you hadn't presented it to us i had because the legal explanation for all of these errors were first thirteen were clearly testimonial statements to law enforcement officers and that was in the initial read and i specifically made that clear in the initial brief and i think it's clear from the particular errors that a law enforcement officers such as agent when was testifying to what  a z are told him i think it's pretty clear on its face i mean to me that these confrontation clause errors couldn't have been more clear with the respect to the warm foresman officers so you kind of are relying on a they speak evidence issues opinion testimony by agent when commenting on statements of some of the witnesses if i was to lay out a detailed explanation of each and every one of these this brief could have been about six hundred pages well but sometimes as a lawyer of course you just pick and choose what are my what are the winning arguments i mean i'll just be very candid with you my law clerk and i am going through the twenty six thought there are three of these that might be serious my next question for you find the way of your twelve i think or thirteen confrontation clause alleged errors or certain errors  which do you rely on as your strongest grounds for the relief you seek ok so with respect to did testimony testimonial statements just testimonial right now that's was a restaurant that the alleged victims supposedly applied for only meant to to get out of the situation they were in as the five that he went there to corroborate statements made by a z r to him you know then he testified on numerous occasions that they were embarrassed and ashamed and humiliated for what had happened also with the respect to the north bay village visitor logs he was able to pass the five that he spoke to these individuals that were on the visitor logs in they basically said they came to the north bay village apartment to get sexual services detective cost up basically testified that he received a complaint from a specific tenant that had multiple units and was running in a legal business out of them and he credited the building manager in the security guard to additional which is that did not testify in this case and then it really got worse for mr cooper when the court let in the testimony of misc or tina miss mommy a miss penya because the crux of the government's theory in this was that these women traveled from kazakhstan they arrived in miami thinking they were going to be receptionists and then they were surprised to learn that they were going to have to perform erotic massages and all of that testimony was clearly inadmissible and the court just let that in through witness after witness after witness and the defense had no way t let in and i said it is our number thirteen the court let in government exhibit number three and it was basically an individual calling c c i who was the sponsor to test basically say that these three alleged victims found out that they were going to be doing massages and that they're not going to work there and they let that in as  hearsay not offered for the truth of the matter asserted when really that was the only proof of those particular counts which is one of the other arguments in this case that the evidence was insufficient as to the attempted sex  even if that evidence were iranian slee admitted isn't there other evidence i mean would it would we have you know sort of substantial prejudicial effect here because didn't other evidence prove the same thing i've got in my notes for instance that you know you've got coopers messages with is you've got witnesses observations of the girls surprised to hear full demeanors that they were sort of have been duped into what they were now going to have to be doing their attempts to find other jobs their departure for the shelter their subsequent facebook posts with cooper i mean there's a lot of evidence that goes to the same point that you're arguing now no that's actually different because the point that i'm arguing deals with the three alleged victims that actually never came to miami all the stuff that iran or just reference goes to a bar on the the sex trafficking counts but at the end of the day you know with respect to the attempted sex trafficking counts that's but with respect to the sex trafficking counts the key point was the fact that they were tricked into coming here and the only evidence of that was not in any litany of evidence that i just reviewed would give rise to a reasonable inference that these girls had been duped or thought they had been duped now i think i think the problem is your honor is it's certainly not harmless beyond the reasonable doubt because i never got to challenge the reason why i say this case is that they the confrontation clause died is i never got to challenge these women on exactly what their mindset was when they arrive miami number one what they expected to do when they arrived in mine and i never got to challenge them on what they actually did and why they started doing what they allegedly did i mean there are a litany of questions that i could ask them on cross examination that i didn't get an opportunity to do and mr cooper like every other individual that's accused has the absolute right to confront his wit seems to me a lot of what you're talking about though is it is an unusual case not to have any victims testify in but it's not that these kinds of dunham testimonial statements they were offered to prove the truth of the matter asserted their showing how the investigation unfolded and and it's not that these young ladies applied for jobs at these places it's to prove the fact that they were trying to get away from from your client that that's what is being offered to prove that but the fact that they applied for a job as it is is not being offered for the truth of the matter asserted it was because they would the government was arguing that they tried to get away from my client not that not that agent when went there to further his investigation in the statements i mentioned with respect mommy eva court corteen and penya don't have anything to do with furthering an investigation there was no reason to let them in they could under i think it's eight zero three three they can live in observations that they're scared and upset but they can't let in the underlying facts and the underlying facts that they didn't know evidence that is indisputably admissible here there was more than enough to sustain mr cooper's convictions on the wire fraud counts on count one ms arca of c c i testified that in a telephone call cooper told her that the summer work travel employees would work from a commercial office space and do office work so just answering phones performing clerical duties and organizing yoga retreats elizabeth bre employee testified that in a phone call mr cooper told her that the summer travel employees would live above a yoga studio and that they would do clerical work cleaning and computer work and ask you a question just so utterly out of tracking your argument or evidence as to the wire fraud counts and the sex trafficking counts but what i'm saying here is despite the fact that the vast majority if not all of the of the statements he's challenge in his brief and the and the rulings that he's challenging his br there is still enough evidence that is indisputably admissible here to sustain mr peepers conviction setting aside all of the year so the testimony setting aside all the confrontation clause testimonial statements your position is that even without all of that there was sufficient evidence to convict yes your honor and i can i can further explain why we know from just in your pena that there was no clerical work to do she came in testify there was no clerical work to do indeed mr cooper admitted to agent nguyen and agent yeager that he had no actual yoga studio we know from multiple witnesses that testified who worked for cooper that his real business was a prostitution business we know that he was posting back page ads constantly throughout the time period including an ad for beautiful girls from kazakhstan on may twenty second which was before in c r arrived in the united states we also know from the testimony of susan geary of the state department and from rob delaney of c c i that they never would have approved these jobs had they known that they consisted of massages with sex acts on the sex trafficking counts mr cooper repeatedly told who was the go between between a r r and the other three women that these would be for clerical positions at a yoga studio that is that is the only thing he told her he told her this repeatedly there are at least three or four instances in the record where he told  that these were clerical positions in a yoga studio and these are his own words they're not hearsay they're party opponent and we know that the job offers which mr cooper and the student side listed receptionist as the job in the duties as performing clerical duties for the company setting up appointments and answering phone calls there is extensive evidence your honour's that a o in z r had no idea about any of this until the day they arrived in miami and again just  indisputably admissible evidence here we have mr cooper statements to the a for a few days after the girls arrived that they were not being cooperative they were being very difficult and that they could make a lot of money providing sensual massage as if they were just cooperate we also had the job applications from trio just a few days after they arrived showing that they immediately started looking for other work this evidence which is indisputably admissible shows that they were not happy that they were surprised when they got there and realized that they were actually there not to do yoga reception work but to perform sex acts for mr cooper special benefit if your honor is ok i would like to move on to address the specific statements that my counsel brought up is the out why he went to trio it was not offered for the shrew in the him escape works helps with that but also this is harmless we have the applications we have the actual applications from trio so even if we didn't have that statement here we would still zero went to trio looking for other jobs with respect to the statement that they were embarrassed and humiliated first of all as we explained in our brief these are not testimonial statements testimonial statements have to be in response to that the primary purpose of the questioning has to be to gather evidence for trial as we pointed out in our brief what was the point of the questions there the agent knew and asked when the was to see if they would come testify these are not kind of factual statements that are not testimonial so we're only dealing with hearsay and as we've explained in our brief these are these are traditional or textbook state of mind statements here they're talking about being embarrassed being humiliated and not wanting to go back with respect to the visitor logs it's unclear from the record this is the visitor logs where the men confessed that they were there to answer back page it is clear it's not clear that they were offered for the truth it could be that they b because he already knew why the men were there so it was just to explain his investigation but in any case if there is anything that is overwhelmingly proved in this case it is that mr cooper had a prostitution business that he was running out of the bay shore yacht in tennis club so this is harmless again we already know he was running a prostitution business a bit of extra evidence that certain men had gone there looking for sex was not prejudicial in light of all the other evidence here with respect to agent cost explaining that he had received information that there was an illegal business being run out of the apartments again this was just to explain why he took the additional step of contacting miami dade and indeed the court gave a limiting it struction here and said this is the only this is only coming in because he got this information to explain his next investigative steps is the absence of limiting structure for some of the testimonial statements that were admitted or the hearsay is de mint's that were admitted a problem for you and if so can you address the ones that were not accompanied by limiting instructions and explain why it doesn't matter sure your honor it certainly would make my job easier today if limiting instructions had been given more often but i will self here is a district judge certainly however i will say that we know from the him in s case that even where the court sees me we know from from women in his car then drove to pick up violetta at the bus stop this was maybe an hour or two after they arrived and learned that they would be performing sex acts this is these are excited utterance is under under president  again this was just mere hours if that after they arrived and learned from mr cooper that they would be performing sex acts and finally with respect to the old last testimony the relative of one of the three women who did not come those statements were simply admitted to provide context for what c c i and specifically mr delaney did in response he decided they should investigate berger and mr de lay he testified to that and again the court gave a limiting instruction with respect to to this particular statement evidence here on human trafficking versus prostitution was far less compelling there's a big difference between prostitution and human trafficking the crux of the human government's human trafficking case in the attempted human trafficking case was all came in from inadmissible testimony the key issue with respect to the two substantive while with respect to the to r was their state of mind where they tricked into performing these acts and we had no evidence of that in the record other than the statements  i mean in the belfast case the person was elected q who is a torturer case the purge person was be in parrot gated electrocuted with a cattle prod i mean none of that is here i mean to say that these statements to mommy eva court tina and penny it was an excited utterance would just open the floodgates for anything to be an excited utterance so i think that the court needs to really distinguish about what the  sufficiency of the evidence claims with respect to the prostitution issue versus the human trafficking issue because it's a really big difference here of these women were engaging in commercial sex acts that doesn't mean that they were being human trafficked by mr cooper at all and that's really the only testimony that that we have on that point you know with respect  to the amenas case that they mentioned a man as was a situation where the defense counsel brought up some questioning and repeated interrogations of his client on cross examination and it allowed the government to go into some of those statements but here with the north bay village visitor locks i just specifically asked whether agent when subpoenaed there be a big that the in cause agent when did i mean that then open the door for agent when to be able to start testifying to what these other people told them i mean this case against mr cooper became impossible to defend because we had all of these witness statements coming in from all of these other witnesses a car x m all house and without being able to challenge them each time i challenge one of these witnesses and the other important point with respect to prostitution versus human trafficking is every single witness that the government presented did not testify that mr cooper tricked them all of them testified that they were voluntarily in the business every single one of them and court tina mommy eva maroko of every single one of them that's a big difference between the women that testified and the women that testified through these women in violation of the confrontation clause and in violation of the hearsay rules and once again i've just gone back to that case that iran are let off with the bottom line is the whole purpose of notices and articulating things in the brief is so the government can respond in the court can understand the argument and here it's clear and in that case