my husband teaches it brand x your honor is my name is tom higgins i am the appellant attorney in this case you have two of them before you today i am the trial attorney on the first one and the second one i was a trial attorney but i was the attorney the did did the material witness depositions that's important too i think if you keep in mind the first case is called the golden state bus case that case started on or rather i know a trial judge judge collins made a ruling pursuant to crawford versus washington that the government could not use the ins form i to thirteen border patrol forms to establish alien age he also said that they may not refer to the people that were apprehended in various points in time as illegal aliens and presumably because that was a part of the proof so they were to be referred to as to as people but the next thing was he allowed the government to do what i call profile evidence of what illegal aliens look like and act like the problem that she was an unlawful alien that was greatly ok in the prior incidents though we did have evidence of persons of a substantial number of persons who were voluntarily returned to mexico now what can we draw or can we draw from bath fact well the fact of the matter there is there was never any testimony except that they were processed and removed and i think there's  conclusion the jury could have easily made that those people were here illegally and were removed even though the judge forbid and use that kind of language but he did let him use that so i think that is proof it's some proof of alienation but it's not definitive they could have had the names of the people and of an i'll give you an example and will even mention it in the brief there was no testimony that for instance ortiz herrera was walking single file i had long short was apprehended it was wearing for shirts had no luggage and was processed and removed that never happened it was just an overall these are the factors and then that these people were taken and removed now the interesting part of all this is is that judge collins after the testimony of maria kind of will have to close the argument count it was argued at the same time well count eighty seven is exactly the same thing that dates back to what i call the not all incidents which was the first of three incidents that was the nov ninety nine incident because that was a bringing in count now we now have because of this court's decision we were notified by the rule twenty eight via letter and mr berg also dealt with it of united states versus angelica though they didn't say what that there was a he had bet a good addition to just picking people up in the country who are undocumented and i think there's a logical link  defend its nickname in it with reference to a smuggling fee and you know there's a reference to quote aliens belonging to t l which is there was testimony that was the defendant's nickname are you talking about the ones that was so called sm belong to tio that tito was involved in collecting money to bring the people from a foreign country into the united states which would constitute the offense but that's where i disagree with you there was no testimony that he was receiving money there was a lot of testimony particularly through the forum for me that he had money on him at various points in the past but not in any of this of those three incidents absolutely zero  but i think that's an improper inference to be drawn from it and like to go on to the next thing in it and i i don't know if your honour's could tell from the cold record but it's absolutely true half to two thirds of that trial was for a four  there is one called the little one called the plumber i called the plumber terminal one where he talked to the undercover agent he complained about money being taken from him in biz be that or excuse me and coaches county and that's also turned up in the forum you still have to combat it in much the same way that you would have even charged it but you know at the end of the day at least the jury isn't going back there thinking about it so you know maybe don't want to complain too loudly about that but it does the in that these are that these are  but these are uncharged acts and certainly part of an overall conspiracy we have the same players that seem to be involved here and the thing patterns that seem to be involved well i would say certainly particularly the  said if not before but he pled guilty to that it's to me a kind of a classic for a for b type of thing except for the length of time but i would draw your attention to the fifth one which is september thirteenth ninety ninth all that is is that an agent saw my client's car the night before and when he pointed it out to mister garcia hire me you know who had told him that he was in san diego part of that in other acts so there is a link be with him because the ford expedition is involved in subsequent descriptions of the ford expedition only turned up in the plumber terminal and incident where the undercover agent frank  his car the night before that that well anyway but it seems to me improper use of it there are nine separate for reform vs two of them were excluded but nine were included and some of the terminal operators some of the ticket people on the wiretaps did not apply to my client those are all are set at the marianna terminal in los angeles my client was the only one that went to trial every one those people together in fact they got to the point where and the the december sixth two thousand number eight of the prior bad acts they mention and your client is convicted of conspiracy now is your client claiming that there was no conspiracy and therefore there is insufficient evidence of any conspiracy at all therefore he had be convicted or is your point conceding there may be a conspiracy but my client wasn't part of it i would say that mr berg is correct and his assessment that you can have a conspiracy you don't actually have to prove the agreement just destroyed her and i decided to hold you don't you don't have to have those words you can do it contained in one phrase that now i think under angelica lopez is prohibited that conspiracy count said that he was transporting harboring concealing and bringing  show that the illegals were being brought in and that was part of the conspiracy if they can show ok very precisely that what elements of the case is there insufficient evidence of i understand your first point which is that there's insufficient evidence to support that people who are being brought in and transported between the hotel olivia nogales and from tucson to phoenix and phoenix to talk vegas to los angeles by golden state in fact we're aliens except for maria white one that is that the that the that the evidence for the there might have been a conspiracy to move people around but it may be a completely lawful conspiracy in the sense that you know greyhound moves people and there's no evidence that they were illegals ok i understand that point what other point what other one of the point is the government proved insufficient evidence i would i would say that the the other point as far as the substantive counts they would not have been able to prove without the forum for the you know that's not improper you can use it for a for the if is long as it's not showing that the person is a bad person that type of industry mr berg posit prove i understand your first point is insufficient to prove alien it's right ok you have a second point yes the insufficient to prove that the he had was an active member of the conspiracy because you have to remember on his the even the testimony concert from the undercover agent at the plumber terminal did not show him moving people he had going over to a car that people came out of  talking to them and the testimony of the agents of the one thousand which is the third incident they said they saw him there but the lady maria can see didn't what i'm saying is this his connection to those those there is in the first charged incident in which he was found together in the same vehicle with mr panetta and within a short distance of the vans there were carrying all these people stacked up like cordwood there were three different envelopes in his respective pockets which contained various sums of money and contain the kinds of information such as judge who referred to as far as destinations phone numbers and so forth which the expert evidence indicated was typical of smuggling operations so we have him acting apparently in the role of typical overseer kind of writing i heard a short distance away so he's insulated but nonetheless keeping track of that particular expedition where but again we're talking about a conspiracy which typically is proved by circumstantial evidence in which the jury is allowed to draw reasonable inferences from these miscellaneous facts it's  moore's own aphorism about a brick is not a wall you can have little pieces of evidence to put it all together to create a whole picture and that's exactly what was being done appropriately in this case now one of the first quote is on page fifteen my brief is that the witnesses would be permitted to describe the characteristics of the people they observed but could not absent other evidence call them an illegal alien or an undocumented alien is very strong evidence it's kind of like that of a drug user who says yeah i was good marijuana you know what he's talking about but certainly not all of their wounds and each of these incidents we have for example the appearance and demeanor evidence of these people who were in effect acting like illegal aliens which were described not just by the experts the agents but the same kind of appearance and demeanor was described by maria can rule herself about reasonable inference is that having not often i think well i suppose it's possible that there were six made that i am not aware of any cases addressing that and i would assume that it's fairly rare again we're talking issue is avoiding the hearsay and so doing it by the means now i want to address the court's concerns as far as the overall sufficiency of the evidence again we're talking about goes to the conspiracy you don't even have to analyze it under terms of for a for b because it was legitimate circumstantial evidence indicating the kinds of characteristic patterns of behavior and the things that  the defendant was doing he didn't have to under the law conspiracy be actively engaged that's the whole point of the conspiracy that is what the group does and each individual is responsible for what the others do even if he's not physically present or participating but it glue expedition that he loves so much and it wasn't just the defendant who was using that it was the other coconspirators there was also evidence from the clerk at the knights in that they were required to buy alfonso slash poncho that was a name he also went by to keep records of when other people were driving a blue expedition so this kind of internal checks and balances are or controlled by the conspiracy to see what everyone was doing how it's being used so basically what we have is a fairly classical conspiracy case where the evidence was appropriately brought in to prove a conspiracy i would suggest that the vast majority of us also proof of for commercial or private gain that was not shown by anything except forum for be evidence that he got stuck with money on him from time to time and it was a link and i would just say that to it and what i would in response to the government's argument right now i would point out that the first charged incident when he was stopped i believe mr berg misspoke he said he was stopped with pena that is not he was not there was that's the incident where there was two maroon vans and a white truck of some sort near the border where the border patrol agent was two miles away with binoculars this court in camacho of a los there was a finding that mexican appearing people in a truck that only spoke spanish and had no legal documentation was not sufficient