good morning steve sherrick i'm appearing on behalf of jeremiah sladen what i would like to do with the time that i have it's focus on argument which is the actions of the border patrol that we asked for discovery in this case so what occurred in this case is this was a border patrol stop this was a general law enforcement stop there's no question about that the magistrate judge in hearing the evidence said he agreed one hundred percent that this had nothing to do with immigration or citizenship question the investigation was initiated by border patrol agent he is when he was doing his surveillance border patrol recruited ranger rank to follow the can i ask you just one clarifying question for you get too deep into that is it your let's say that we were to conclude that before your client ever got to the border that the checkpoint where he was stopped that officers collectively did have reasonable suspicion to make the stop is it your position that you still need discovery into the what exactly was going on with the the checkpoint or for that point is it become irrelevant because they would have had a basis for stopping them just out on the open road anyway so that actually expands it  and hits into the issue as i raised it which it's not just the checkpoints it's how border patrol is functioning generally in their enforcement activities in the tucson sector and so if we look at that or there's probable cause to believe that there are unlawful immigrants concealed within the vehicle they can search at a checkpoint if there is probable cause to believe there vehicle we don't have that here what we have is reasonable suspicion at the time they reach the checkpoint in the checkpoint being used to investigate general law enforcement so but  just trying to understand your position that the officers who were observing what was going on i can't remember what they were they weren't all border patrol people who were there they were there was one officer who was not border patrol and that was a national park service officer rank who followed the vehicle from when it left this r v park up to the checkpoint and was relaying information to border patrol at the checkpoint and i'm behind  the ickle and relaying some additional information that he was gathering that added to the calculus of reasonable suspicion he was there at the request of border patrol and where that dovetails with what i tried to present to the court is that is that border patrol in tucson for at least the last seven years or more has engaged other law enforcement agencies i'm not saying that national park service was paid or that they were part of operation stone guard but if we look at the overall picture it shows that there is a border patrol plan of operation to recruit other law enforcement agents and i'm having trouble sort of connecting the dots of your argument if there was reasonable suspicion before the vehicle got to the checkpoint i don't understand what the basis would be regardless of what the purpose of the checkpoint was to suppress any evidence if there's reasonable suspicion so i don't understand why the presence of reasonable suspicion doesn't mood your argument that discovery would have helped  or motion to suppress if there's reasonable suspicion and i think the fact that they stopped it at the checkpoint as opposed to a less safe place i don't see how that matters so reasonable suspicion develops let's say it develops before they get to the checkpoint let's say there's not a checkpoint there could border patrol have stopped the vehicle if the checkpoint wasn't there know because they can't stop a vehicle for reasonable suspicion for general law enforcement purposes it has to be for an immigration or citizenship purpose so they couldn't have stopped it but for the checkpoint are you saying that's true even if let's say that let's just say state officers were the ones that made all the observations and develop reasonable suspicion if they radioed ahead to some border patrol person who was just hanging out and said hey can you help us out and stop this car you're saying they couldn't well it's very interesting you ask that question because if we if we go backwards and we look at soil and because and so i let the majority said you know we don't have to really worry in this case about whether or not border patrol has bad motives and then judge  dissent basically laid out what he thought was a danger of these checkpoints and one of the things that he said is that you could have a situation where the d n a works in cooperation with border patrol they gather information to establish reasonable suspicion and then and then radio want to head to border patrol in order to get border patrol to stop a vehicle or to investigate that suspicion that  that there had been a hearing and the government put on evidence where an agent testified that ninety percent of the interdictions at the checkpoint were immigration related and in spite of that this court said we're going to remain and this for discovery because the defense hasn't been given an opportunity to come to confront cross examination the testimony of this this officer because they don't know what information is out there on remand the case is dismissed so that doesn't happen now what we've been able to discover is how border patrol initiated this operation stone garden program where basically they have state and local law enforcement officers working for them on an ongoing basis for years to do things that border patrol agents  prohibited from doing if we just look at the number of stops in the government's exhibit twenty nine counts i'm sorry to interrupt the government argues i think it's in footnote ated page twenty four of their brief to the extent the defendant is claiming the border patrol agents did not have statutory authority to stop the truck for drug smuggling the defendant did not make that claim in the district court well the claim that we made in district court is that is that the overall operation of this program was was inconsistent with the border patrol function and we did raise the claim repeatedly that not just where they were the checkpoints operating illegally but so are these roving patrols that were being operated by state and local on food you specifically make the argument in the district court that the border patrol agents didn't have statutory authority to stop a truck for drug smuggling states the juvenile female case the border patrol agents have authority under one thousand u s c four hundred and eighty two to stop and examine a car where they suspect there's merchandise introduced into the united states in any manner contrary to law but what's your response to that argument as to the point that they have no authority well as to mr slade and mr miles they had no information to establish that they had in fact imported anything into the united states they may have that reasonable suspicion to to believe that they picked it up within the united states and transported it from there well it says that there is merchandise introduced into the united states in any manner contrary to law i mean if the stuff came across in the r v park it was certainly introduced into the united states in a manner contrary to law and then your call your client was carrying it white why isn't that within one thousand u s c for eighty two so that there's  what i what i would say is that then that would and that would allow border patrol to stop of the pull at any time anywhere if there were suspicion that there was let's say cocaine in the vehicle because because the overwhelming inference from that would be that it had been brought into the united states illegally from ecuador colombia or somewhere else outside the united states and that would then say in general that border patrol can operate in a general law enforcement capacity at any time where there is reasonable suspicion to believe that a vehicle is carrying out of contraband i see that i've got a minute there yes i want you save the rest of your time for a bottle and we'll hear from counsel for arthur i would actually reflect reserve one minute for rebuttal douglas tyler francis i represent mr my basically what i'm here to do to day's news talk about being a trial attorney and having the evidence against you come from circumstantial and other experts and not actual hard physical evidence that you can challenge this case as far as mr myers was concerned i had a number on a number of position places where have the incentive to gather any information specifically agent hughes had what's called an mc ass truck which is a two million dollars truck that they used to watch the border fence and he videotaped people coming across the border from mexico into the u s allegedly into the gringo pass r v park but then didn't preserve his supervisor told him don't do it it will take too long to go back and look at it so we have a video we found out that those eight actually excuse me at a hearing prior to trial we found out that those agents had found footprints and bundles somewhere in the park but hadn't preserved them it was raining and it was area where you could actually preserve footprints and information but they didn't absolutely correct and why would the government have known that that might help your defense because mr meyers had spoken to agents content for any asli at the border checkpoint explaining that he had been at the gringo parlous r v paths that he had attempted to that he had attempted to actually be was actually listen to mr slade and mr slate and had attempted to locate a person in a trailer do electrical work and mr my said he was along with mr slade and to do electrical work and if he and i became basically the whole premise of the case because if mr guy's i'm not i'm not following how preservation of this evidence you've just referenced the video i guess of the people going back to mexico in these footprints how it would have helped support your client's defense in the car you just mentioned well one it would have shown whether or not they had any gear or quitman or had left something in the r v park too it would have that one of the issues that the truck was using at the at the trial was the fact was did mr my eyes have would he have been able to see the folks at the r v park or not meaning was his defense credible was he actually blocked by a mobile home to where he couldn't see the truck being alleged loaded or not and if we had known where the bundles and footprints were then we would have information to gather about where that trailer was and see if it actually bolster or undercut us from eyes to facts and that was the purpose of that secondary purpose is is he one of the issues that we're having right now with this case i'm hoping the court take a look at is that  that the government made that decision they had agents there looking at the footprints looking at the bags knowing this case was happening and then you can preserve the names of the agents we don't have the names of the agents let alone in the evidence so we as you know try to represent a client has proclaimed his innocence and is a trial wants to go to trial we don't have even anything anything to to look to his credibility then again we get to the checkpoint itself mr mize credibility was it at issue the entire time because he testified in this case at the checkpoint with all the cameras and all the gear and everything else around they could have taken photographs we just heard in the last case the prison photograph idio of what happened but here at a checkpoint where there interdicting many many citizens a day we are forced to rely on the agent say my client was nervous and appeared to be staring straight ahead as opposed to my client saying i had it in my license and i said i was a u s citizen now that is a very small issue i will give you that but it is an issue that goes to credibility and alternately this case comes down to circumstantial evidence by agent garbo testifying to how a drug smuggler would operate versus my client attempting to testify for the st time about how you know about what actually happened what he would happen that day the coup de gras and frankly the most offensive part of this case was the introduction of the vest at the end of the trial let alone all the other information about the evidence that wasn't preserved at the end of the trial there was a vest in the truck it was exhibit forty one that was never preserved instead there was some testimony by the various agents of it look like a utility agent best one agent said that mr myers was wearing that when he came up to the checkpoint one agent  ranger rank said he didn't really and the only photo taken by ranger rank not border patrol showed mr my were in a t shirt and jeans and no vest and yet the government in a deuce at the end of trial the best that they had a guy from rural africa actually own the company come down bring a vest it was exhibit sixty five and then they introduced that to the jury they had rural africa on it they didn't ar it at inclosing i'll give them that but just the presence of that best with that rural life that logo was the only thing that connected mr my eyes to the to the electorate i thought the whole point of real of the us being introduced is to was very sorry could compare it to the vest that was in the truck i seem to recall there's a photograph of it bundled up on the dashboard to say that no no no whatever those folks had it wasn't one of our vests everyone many are but i presume that that was their purpose but they presented it as a rural exit back to the jury with the implication that this best matches that the fast that was photographed it was a phony vast one more indication of their criminal of your client's criminal maybe you're out of but i don't see that i don't see why they would not have brought in the real that and then done a comparison because the implication from the witness statements if i may finish was that no one saw the logos and decals on the b wadded up in the crock so it could have looked like another fake thing there and it wasn't but they didn't bring in the vet did you did you did you object on grounds of relevance i did and what did the  there was based on reasonable suspicion and law enforcement had that reasonable suspicion prior to and entirely independent and what is it you say then led to its ripening into prob determined that it likely arrived in the probable cause once or the agent saw that void in the truck which was covered it did not was not consistent with what a property to a t truck would look like and it looked like contraband would likely be at night or there unnecessary because agents had probable cause prior to the dog being called but the district court the magistrate judge and the district court or at least the magistrate judge and the district court adopted it found that the dog did hit did alert yes yes  down which the dog normally does on an alert yes that's correct so in training in a controlled training environment the dog would ordinarily sit upon an alert sit or lie down depending on the dog this dog was trained set to indicate there's a difference handler both testified the dog alerted that's correct yeah i plucked at the video i find it extremely difficult to see the basis on which they could have opined that the dog agents were able to see that void in the truck that they determined was was likely to hold contraband so the determination of whether they can alerted was is unnecessary to a fine and probably cause however we still do submit that the alert was sufficient and when you watch the video although it is admittedly a very quick alert that you do you see there the agent testify that these alerts are unique to the individual can on and he's trained to view what that can and does when it alerts and he was able to testify that he saw that in this case is the does the alert occur on the part of the video that we were able to see the dog yesterday on ok i believe he testified that when you see the dog turn behind the truck to concur in my colleague's valuation the video i have read to describe or the testimony st and then watch the video and could i thought oh surely i've missed something let's go back because i couldn't figure out what in the world they were relying upon  maybe just go back for one second why do we not need to rely on the dog alert because i thought we did which this thing about the void in the truck i didn't focus on that closely enough i guess well we have all the facts leading up to prior to the checkpoint and then once they conducted for the investigation at the checkpoints and starting all the way down at the border you don't need to do that i got all those facts straight i'm just saying once they get to the checkpoint you're saying that the fact if the fall we thought was they have reasonable suspicion up so that you're saying that the fact that secondary once it was was pulled over there the suspicious answers of both both defendants as they were communicating with law enforcement the story that they were giving of traveling down for this maintenance job in a very rural part is this with the magistrate judge was referring to is the inaccessible compartment yes wrong there was a void in the truck it was inaccessible so if this were a proper utility truck not a counterfeit truck it wouldn't have been set up that way but it appeared to be set up to hide some sort of contraband but it's not just that it's also an issue just said they told the whole series so what any officer would have regarded as blatant lies about what they were doing and what they were up to and all that occurred even before this right best director are so they have those lies they had those statements that all this is special circumstances all the way from luke will to the checkpoint and in addition to that than looking at the truck they saw this void and determined there's a very likely contraband in that in that void can can you follow up on the dialogue that my colleagues at bennett had with your opponent about just the authority of border patrol in general to do what it appears that it is doing  investigate and arrest for federal offenses when they see one occurring especially one relating to contraband being brought into the united states which is what happened here we had testimony establishing that there were very likely marijuana bundles being brought across the border argument is a bit of red herring here in terms of arguing that border patrol is doing something illegal somewhere in southern arizona and therefore you should find that they did something wrong in this case when those allegations have nothing to do with this case because this case that was based on reasonable suspicion that ripen in a probable cause entirely independent of the checkpoint or the reasonable suspicion was entirely independent of the shaft point and was not relying on immigration authority if you look at the facts that  se the agent to determine her cause the facts to surpass the hurdle of reasonable suspicion but also this operation stone garden there isn't even an allegation that this case was part of operation stone garden and the agents who  involved in carrying out this stop in the subsequent search were federal agents so a grand program regarding local agencies assisting in border patrol the border patrols mission has nothing to do with this case and the discovery  to turn to some of the other more arguments would since counsel has focused his arguments on the search at the at the checkpoint would counsel or would the judges like to hear arguments regarding the other argument the video evidence but even if we apply the harsher for the government's standard under surveillance there was no no bad faith here and one of the inquiries that the court should look at is whether the prosecutors were involved in this the trial attorneys were seeking out all the evidence that they they could have border patrol supervisor made the determination that it wasn't worth the time to go back and view the the evidence or view the video to record that and within a matter of twenty don't know so well we have testimony from border patrol right in stating what what it what you may or may not be accurate and that's why they wanted the video so i mean i just i thought that they'd be the reason given that it's going to take too long just struck me as not a very legitimate  packs but with a number of them carrying what what appeared to be the remnants of the bottles at the packaging material which is what was testified to certainly the government does not endorse this these actions however we focus on in this case where there was prejudice to the defendants and based on the overwhelming evidence in this case we argued that there's that there's not here to talk about the vast issue we really see no no argument here on the council council's part because the vest was properly authenticated it was not unduly prejudicial as the court has noted the entire basis for showing this was just to further show that there was a counterfeit truck and they were they were dressed up to look like employees of a company that they never worked for so yes the court is correct in stating that we were trying to show that the real fast of a real rural africa employee did not look like what was shown by the was was done with if you want to talk to your folks down there they don't seem very intent on preserving evidence obviously that maybe i grant you with the footprints i can understand how but why would we think that was going to be relevant to the facts but the vast i mean my goodness it's all crumpled up and so you can't really see much she would have been helpful to for the jury to have been able to see the whole thing may be helpful for you if the government right i don't understand why that wasn't preserved and so we have this lousy photo it's true that it would be helpful for the needed for conviction in this case was there evidence that the actual seized arrested been destroyed or simply that the government chose not to introduce it i don't recall i don't believe it's in the record either way your honor we just have a picture of it crumpled up on  that there was not a discovery quest for that particular vest the argument was that it was or overly prejudicial to show a real electric best when we weren't arguing that that's what he was wearing but that misses the point of why the government was presenting it to show that he was dressed up to look like a rolex rick employee when he never had but to further show that this is if there was air here that it was harmless we also have the testimony of the owner of or electric who went back through the database and was able to testify that these two accounts never worked for his company were never employees over a letter so it the we certainly had evidence to try to get at what the best would he gave perjurious testimony and that the district court concluded as such stating that this was actually false testimony which he called incredible and false testimony that he will fully gave at trial to give the story that was just not believable at all not credible and so he's certainly not eligible for the benefit of safety valves giving credit to defendants who come forward and provide all the facts which they knew and he maintains that he was merely york's alert behavior establish probable cause that would be so and and the court has actually hit on exactly the point we can all watch the video and we've all watched the video and we see the dog showing some interest in sniffing at the corner bumper sniffing underneath and coming back out going around the vehicle getting on top of the vehicle you know but wasn't there plenty of probable cause independent told by the defendants about what they were doing what they were up to and then the observation that their vehicle had a inaccessible compartment that would not be part of a normal vehicle the story that was told and i'm not saying it was true but the story that was told wasn't so incredibly unbelievable that a recently purchased utility vehicle being used by these individuals to do some aleck trickle work and an r v park isn't something that on its face is incredible and unbelievable your client could not produce a work order for the alleged electrical job at the v park when asked to provide a daemon phone number for the customer he only could state a st name he had an implausible story regarding how he came to be employed the and then there was the the large compartment that appeared to be inacce why is it in common sense to infer from that they're not involved at all in what they say they are and given the compartment they're most likely transporting drugs i would say it's a close question but if that's all so and also and i'm sorry i'm out of time if i could have that also death tales with the argument i made about why not seek a search warrant because if there is probable cause and stablished at that point which was within minutes this be the ickle being the checkpoint why not apply for a search warrant why wait forty minutes for a dog and that's a separate issue and the dog sniff is what the district courts that ultimately gave them probable cause and they're being detained which we called an arrest for the at least those forty minutes while they're waiting for the dog if i could just briefly make one point regarding the checkpoint in in both edmonds and in martinez suerte what the court said is you need to look at the program matic purpose of the checkpoint and that's why we've raised the issue of how border patrol is operating generally it at the checkpoints and in their enforcement of the laws in the tucson sector and it's not this individual case because every case you're ever going to see in this case in this court if there is going to have been reasonable suspicion of probable cause ok thank you counsel give two minutes for your co counsel here you first i'd like to point out that the whole reason we're discussing the alert behavior of the dog is because mr slayton filmed it himself that information did not come from the government was not preserved by the government it came from the defendant slate and nd i noticed the course start referring to the lies of both defendants it's still our position that the information that mr ma is presented to the border patrol agent was limited to talking about him being a day laborer being hired by mr slated to go on a job with them and was consistent with what he was wearing and what he was capable of doing and that's why the vest is so important because that like u s b me here it's a piece of information it's not relevant to  ask me the case of the government but it is incredibly prejudicial when it's coupled with everything else as far as discovery requests the i don't believe it was a discovery request specific to the vest but i did inspect the past in the vehicle and it was in it at least the st inspection was available to the government more importantly they never made a showing about why they didn't present the actual  but if you felt the the original was now important you could have asked for a brief continuance who have taken very little time to get the best and you could have presented o well or cross examination or whatever it yes your honor however one my client the only photo of my client was taken we did not have the vast on him one of the other agents testified aging marin that the vest was not there was indeed in see it and it was only one agent that's put in there without any other evidence so frankly that was a tough decision about whether or not to bring that in or not because there was no other corroborating evidence about may have just a nd to address safety valve very briefly basically you know my client proclaimed his innocence throughout he testified extensively in front of the court and he wanted it and he is he has this appeal he had no prior record and it seems to me that there was nothing else he could proffer at that point that would have satisfied the government because they did not believe him they never believed him thank you ok thank you very much for the arguments in this case because just are you do submitted