mr mcdonald we understand that this might be your first appellate argument that is correct your honor and if so at least as one member of the panel i suspect this is shared by the others i think you did well thank you very much trying to i really appreciate it you survived that will continue with the criminal theme at least for the earlier part of the morning the next cases you're going to have to help me with the names stage so it's more just a funny how do you pronounce your client's name well i pronounce it true caselli and he's not here to complain you're right i'm ok misstate how about you i will try to get them right right this was this is united states versus jew caselli is the easier one case number one seven dash one one five zero seven it's just funny yes good morning your honour's thomas school funny on behalf of mr caselli the reason why we're here this morning and one of the reasons why we're here this morning i think was was capsulized by a comment made by the district judge during the course of the trial and that was when he said quote you are all making this much more complicated than it should be and what judge graham was referring to were the was you the as the court knows this this case is basically involving seven georgian individuals who were brought into the united states without papers by the two appellants the there was a group of agents who interdicted and ultimately there was a gap and then we have an agent who who ran certain information to determine a their alien edge and b that the attorney general had not given them permission to enter and so judge graham candidly was was incredibly frustrated i mean it just showed directly through the record and he capsulize that particular issue by saying the following he said no one has testified that person x was taken to the coast guard station and had information elicited which resulted in the creation of a two thirteen meaning the i two thirteen that's the gap that's why it doesn't make sense and so the first question is is whether the agent marla should have been permitted to testify about accessing a database which indicated that the seven aliens whom he never met he never saw and never had anything to do with  was was able to testify at trial and so that's the first thing the second second issue that it raises is the issue of the admission of the fact that i thirteen to be even before you get to the two thirteen form with regard to his testimony is your objection that he could not have testified at all about the lack of a government record during a search of a database or that he couldn't have tried to pin or link that lack of record to the seven individuals who were taken off the two boats it would be the second that he couldn't link it i think candidly with respect to the first issue about his ability to testify from the  database there should have been some testimony as to what that how that database was created so that the at least there would have been a cut there would have eliminated any confrontation issue so really this should have been but more importantly i think and more poignant in this case is the fact there was no connection and that is the reason why he could not have testified the second tell me about special agent miller and what he testified in his attempt to connect up who was on the boats and who appears in the records at the height two thousand he had to leave use the fellow who took the photographs and also was was logging in the belongings and the and the monies that were there once again you know he agent miller was was a person who was at the border patrol station and there was no connection between the agents who brought in other words if the agents who did the interdiction your honor should have brought these in these seven individuals to the person in this case agent miller or agent moralists as you would have it and say these are the people who we've just arrested ok these are their identities are these are the papers that we've had and this way we have essentially a chain of custody there's an unbroken chain so that when miller does what he does and when marlice does what he does he's doing them for the same seven people who are on the boat what we have here is an absence of that evidence and what we what we're relying on now is what miller was told by somebody which of course is a hearsay statement that is without exception so that is that is the distinction now with respect to the two thirteen i understand that the council acton miller for a second yes up that his testimony was that the seven people taken off the boats were the ones for whom he did try to thirteen yes that was his testimony but that was that was not what the words what he told me it's a question of what did what did marlice know what was he told and under what circumstances and he had no independent knowledge that the seven people who the interdicting agents thirteen and why you think s your admission is wrong and particularly under a plain errors then you're given that in the least one case we've said that that sort of reform is generally admissible well and i think that is what the problem is if i may your honor and of course you're referring to the karbala case and the what the supreme court has said in davis versus washington is is that is that the court must take a look at the process by which the information is gathered not the form on which the information ultimately results so what the court needs to do is to is to make a determination about whether the circumstances of the of the facts the information is coming out was something which was for it to handle the present emergency in which case it becomes a hero subject we here save section or whether it is a confrontational situation where agents are investigating a past crime which is what happened here the problem with carballo is in the in the distinction i'm not saying that the court is supposed to be overruling another panel decision that's not what i'm asking you to do what i'm asking you to do is to distinguish and some of the other cases in this circuit that deal with the eye to thirteen issue there was substantial testimony in the in the in the trial that the purpose of constructing the to thirteen was for routine exam and the routine gathering of information to determine immigration status not so in this case in this case every single agent who testified testified that the purpose for them to do what they were doing and ultimately to to do gather the information they were gather it was because they were investigating a criminal activity specific wouldn't they have had to do that even if they weren't investigating a criminal activity but the guys they have been people who show up will not show up but are apprehended on a vessel coming from the bahamas with little or little or no identification and certainly no papers isn't any immigration official going to create that sort of a form i'm not suggesting if they if they had swam to shore and they had run into an immigration official that official or one of his or her colleagues would have created these forms rest but but but the but the davis case says that the primary purpose the primary if the primary purpose of gathering the information was to build a criminal case then it becomes testimonial hearsay and that is what we have here but are they just collecting exactly the same information that an administrative process would be gathered by other immigration officials well that this was an administrative process that you're on to see that's just what we just doesn't the government always when somebody comes to the united states where there is no expedited price process for them to come in and or without documents that they create an eye to thirty to thirty they they gather they gather biographical information to determine whether that what the alien edges of that person which appears on an eye to thirteen when i'm suggesting to the court is is that it would be inappropriate under dave's for a court to take a position that all i to thirteen's are not are not nine testimony or in other words they  are there in matters that are taken in the routine in the normal course of business it the court needs to look at the circumstances which in this case are unusual and much different than they have been in karbala and other cases where there was testimony about yes we gathered the biographical information for the express purpose of simply routinely because we normally do it anyway there was no testimony below in this case a matter of fact it was to the contrary we were conducting we were conducting an investigation to determine whether they were smuggling drugs whether they were terrorists or whether they were illegally smuggling individuals into the country every agent  nature of the information that was collected and allowed those to be admitted in that criminal case by saying all this is score is biographical information similar to the same biographical information we taken from everybody except that the biograph the two elements of the biographical information that are collected are two of the essential elements that needed to be proven for the government to convict these individuals number one where they were from and i'm looking at the form and more so and we would have been ok if they went across the street where there was a border patrol person and said i don't i want you to come over and create get the information necessary to create this war and we're not going to tell you what we're doing with these people but just get the information and he does that it's exactly the same information that was collected by the investigators you would say that would be ok because they didn't have an investor because he didn't have an investigative purpose and i would say that was a subterfuge in order to try to do an end run around davis funny's presentation in that the government promised when the district court judge promised to when the just a court judge said we're missing a witness here we're missing person x they can talk about the seven people being dropped off at the border patrol station because that was never tied up and the government promised that an agent miller that was going to happen but in fact agent miller he didn't even fill out the two thirty's asian miller testified that he did two things he took pictures not the same pictures that ended up being on the two thirteen he just said yes that is a picture of the person i took a picture of when that when did he do that mistake when he say he did that he did it on the night of august twentieth  on the night of august twenty the day after you know the day of that in the morning they were apprehended i believe around eight am in the morning the boats were stopped this is the that night then this is that night another important fact is that there was absolutely no testimony whatsoever that anybody during the time of the introduction spoke with any of the people on mr skittish mealies boat there was no test of it nobody looked at their paperwork nobody got a name nobody wrote down a physical description absolutely nothing so you have these four people who nobody knows anything about and there's no witness that ties bringing those four people to the border patrol status and there's some testimony out of i forget whether this dealt with one boat or both of them wasn't there evidence that there was there were only certain types of documents of any kind found agent haines who interdicted mr shuck with celie's boat stated that he did look at the passports of the three individuals that were on that boat and that is the only testimony and that they were actually examined by agent hate where those introduced into evidence if you know they were not introduced into evidence your honor speaking of agent haines the problem with agent haynes and his testimony and he's he's just simply not credible and the prosecutor knew that the information that agent haynes was testifying to was absolutely not credible and yet during closing argument the prosecutor continued to valve's for the veracity of agent haynes is testimony that he took thirty five hundred dollars off of choco celie now the government's case was very weak overall and the district court judge commented numerous times during this trial how he wasn't happy with how the case was going he didn't think that it was being tried very well by anybody frankly but the prosecutor in closing needed to tie up the fact that these guys were smugglers and evidence of smuggling can be evidence of payment being paid to smuggle and the prosecutor argued that the thirty five hundred dollars that agent haynes claimed he found on defend fact evidence of smuggling when at the very same time the prosecutor knew very well that there was an existing property receipt filled out by agent miller which showed that not only the thirty five hundred american dollars belonged to one of the passengers but also the fifty larrie not sure i'm pronouncing that properly but the georgian money also belonged to somebody else i'm assuming the district court in his instruction said the argument of councils not evidence it's up to you to determine what the evidence is in the case it's true your honor that that is what happens but in reality we know that jurors look to the government to the united states of america to be sure that justice is that that we have justice in these cases and when the government deliberately argues evidence that it knows not to be true well  s talk about that for a second my reading of the briefs and the post trial motions indicates that there was a claim by one of the passengers to the money but no determination about ownership is that accurate the testimony was that six of the seven people claimed that more than seventeen thousand dollars that was ultimately over the thirty five eight thirty five hundred dollars there was a claim by one passenger to that was there not yes there was there was a claim but it wasn't adjudicated in in any way well not at the time of trial but it's all know now that the government sent this gentleman form and said if you want your money you better claim it and also your honour's all but you know if you have that sort of it seems to me that that's an ambiguous terrain because people make claims that are sometimes legitimate and sometimes not and sometimes somewhere in between it's and if you have an agent who is changing his story as james did several times how are you supposed to figure out which one of those versions is accurate i think one of the most telling ways we can find we can determine that your honor is that if this was evidence of payment and if it was actually found on the defendant it would have been seized it would have been brought to court it would have been trotted before the jury as evidence of pain and not you said you said this case wasn't tried very well by anybody it might not have been investigated very well either and that happens from time to time not even i had a i had a case as a prosecutor where de agents mixed up all the identification money paraphernalia everything from four or five individuals caught together allegedly caught together in a drug scheme and you had no what you had no idea what belonged to who no property receipts no inventory nothing we don't have that please everyone so we have property receipts here we have a person claiming the money we have the government not seizing the money and bringing it to trial and we even have judge graham finding that the government didn't even meet its burden of propounder ins of an evidence at sentencing that these defendants were in fact paid for smuggling my time is up we rely upon the arguments in our brief we've adopted the arguments made by mr talk with sally thank you all right thank you very much misstates you've saved your time for  i guess twentieth twenty sixteen agent miller was at the dania beach border patrol station he testified that while he was there group of seven georgian aliens were brought to that border patrol station he took photographs of those aliens those photographs that he took identification and it and skittish identification which further indicated that those aliens had come from the defendant's boats also all seven of the i two thirteen forms state that the aliens were apprehended at nine am approximately on honour's pointed out this court was clear in united states versus care about that i two thirteen forms are non testimonial statements that also fall within the rule three hearsay exception for regularly kept records in addition if you are left provided sufficient purpose has to be not testimonial and i think what sort of is getting glossed over here is that it's a docket entry one thirty six pages twenty five thirty eight jim arlette provides testimony for these i two thirteen forms he testifies that customs and border patrol agents normally gather the information on those forms from all ends that arrive at a border patrol station he testified that the form a space and biographical information that the only provided and any identifying document it documents that the only presented and  the primary purpose of the information recorded on the firm form was to identify and determine that a portability of the airlines indeed in the care of by a case it got in his era by it was a very similar case modeling who they came in the defendants had been apprehended and there's a criminal investigation into the defendants at the time that those thirteen forms were processed but their main non testimonial because even if a secondary purpose was to use them in a criminal prosecution the primary purpose remained that they were regular mechanically kept immigration records that first the prosecutor did not make a false statements while the defendant attack the credibility of agent many times that he changed his story he changed his story few times but what he changed his story about was not about whether or not he found thirty five hundred dollars and to us  consistently testified on direct cross and redirect he found thirty five hundred dollars what the inconsistent testimony it was about was on the wall it specifically looked like he could not remember the specific attributes of the wallet he got confused in the didn't th will get to the comments afterward didn't matter because part of the initial testimony was that the money would have been able to fit within the wallet that he first identified is the one that he took and then when he was shown a different photo of another of that over the different wall that he said although i must have been mistaken or something i think it can matter but i think the factual context of what was going on when you read this what happens on process happens on redirect i mean you go back and you look at the actual exhibit is that the photograph of the wall it is taken well it's on the boat and when you look at this photograph it's not quite from the best angle it could have been from and interpretation was this photograph was turned around it doesn't look quite right he's going back and forth between the photograph and the actual wallet and he just gets a bit turned around and then i redirect to service able to look at everything again and reassess and say ok you know like it actually could fit i was looking at it the wrong way and at the end of the day whether it was in the wallet not in the wallet he consistently testifies over and over again it's thirty i found thirty five hundred dollars on him and that's up for the jury to believe but they are not they find asian hands credible whether or not they found him discredited that doesn't render this testimonial as a matter of fact false and again as judge duffy pointed out any misconduct was was remedied by the district's repeated statements at the beginning and at the end of all the evidence that the statements and arguments made by the attorneys are not evidence and they're not to be considered by the jury and we presume that the jury follows the instructions that we give them and edition there was overwhelming evidence of the defendant's guilt without any tenor of the evidence presented but it seems to me the district court and the government got it flat all wrong in trying to restrict the cross examination of the alien who testified on the defense behalf what do you think i mean you're asking someone did x ask you this question or did x tell you why and you know that whatever he told them is that the hands had proper documentation before he would bring them because there's a no but it's not that it's not the thing it's not it's the truth of the matter asserted doesn't go to the theory of the of a litigant case it goes to the truth of the statement that to being case what had occurred was that the government asks witnesses all the time whether someone made a statement or didn't make a statement you want to throw all of that into doubt now so that when you're asking something that someone said or didn't say that helps your case now that's all going to be in hearsay land and you're going to have objection sustained left and right if we write an opinion saying that i think they qualify and then move on to why i think in any of that the decision to make this statement was harmless i think i think you're right on that second ok but you vigorously argued the first point in your brief and so i want to test the limits of that ok i think you know you can stop if you don't want to go further i just want to make sure you know the road you're heading down yes that if you're if you're if your contention is that merely asking a witness whether someone else asked them something or told them something that you know is not true is for the truth of the matter asserted you're going to be rewriting a lot of hearsay law at least in my opinion is that that statement that question cannot be for the truth of the matter asserted its being asked to see if the statement was made or not made it regardless of whether the statement is true or not asking about the question the alien was asked it seems to me that that's a very different posture right the question here was do you the alien mr s tell is that the way this is being presented in the theory of the defense is his whole defense was i didn't act in reckless disregard because i asked this question this question shows i was checking i think it's an let it's effectively the same as of skittish beliefs counsel usually to testify whether skittish billy had said to him you need authorization to enter the united states and i'm not going to bring you if you don't have it he was offering it for that and that's what makes this i think a little bit tricky and differentiate it from sort of the all of that testimony where the eight the alien who testified on the defense's behalf explain that he had never told either the defense that he did not have papers and he was never going to tell them that right and that they never asked to see it and he had not show it to them and that they believed it which was really sort of what the defense what they're trying to elicit and again even there also was overwhelming supporting evidence supporting the reckless disregard even if all of the elegance had south florida they have no belongings only one of them speaks english they meet the defendants they say you know what you know how we're going to get to the united states we're going to go into twenty four foot open single engine boats with no n being driven by complete strangers at dawn for two hours that's just not the behavior of someone who's lawfully trying to come to this country and in addition the defendant showed their knowledge by attempting to cover up their crime when they were apprehended they both separately lied to customs and border patrol agents saying that they come from miami when they actually come from behind us and they make no mention that they picked up their passengers in the ramos skittish villa throws a lot object overboard before it stops his boat and they also use the hiding in plain sight smuggling technique twenty nine motion by judge graham speaks volumes and i'm quoting further agent miller and i interject he had nothing to do with the interdiction of the passengers stated that seven georgian aliens were present at the us c b p station the i two thirteen forms were admitted into evidence agent marley testified that he ran the names of georgian aliens documented in the admitted i two thirteen forms and no records existed showing they had permission to illegally enter the united states based on this evidence it was reasonable for the jury to infer the seven georgian passengers were the same georgian aliens at the us c b p station with no legal status to enter the united states as such there was sufficient evidence that the seven boat passengers were aliens most respectfully i think the gaps between those sentences are the reason why this court should reverse and sent to reverse this case i would also make it clear that i'm adopting of course all arguments and made in writing and orally by my co counsel thank you run h thank you to touch on a few things that the government stated number one in regards to agent haynes's testimony it wasn't just a little equivocal during cross examination when he took back his testimony that they were the same wallet the district court judge tried to clarify what his new testimony was and he said you're saying that there are now two different wallets and the agent says absolutely when he was very very certain about that so while it's true that the defendants were charged under the statute where the ration would be an element they certainly believed that you know their evidence was so weak that they had to bring in some sort of proof that we had smuggling here also a witness testified one of the other agents that when i got on to mr scott funny's client's boat now i don't know how to pronounce his name at all testify that he never saw agent haines  take any money or photograph any money he never saw any money at all on the boat or taken from the particular individual and finally agent miller said that when he was inventorying property receipts making out property receipts there was absolutely no money found or claimed by other of the defendants only six of the people who were at the station also you know this is kind of a darned if you do and darned if you don't case the government if the lights were out on these boats and it was at night and everyone was dressed in black and maybe people laying down that would certainly be evidence of smuggling but when the opposite is true the old drug courier profile yes the opposite is true and they're out in a beautiful sunny day and they're waving at the coast guard plane for the border patrol plane above and they don't try to outrun them and they cooperate fully that's evidence of hiding in plain sight in that's evidence of guilt and finally but here you also have the added fact that they didn't have the appropriate documents and that's sort of the lens and there of truth to the theory at least in this particular case you know that's true  but you know during closing one of the examples given by one of the defense attorneys was you know coincidences do happen and i would argue that in fact they do and one of the other arguments the government typically makes is that are two inconsistent stories and therefore something's up well here you have to perfectly consistent stories and some things so we respectfully rely upon the arguments in our brief we ask you to please they kate the sentence and the conviction your client but to the system as a whole and we certainly are thankful for