bronnie morning your honour's and may it please the court and she with ronnie assistant federal public defender on behalf of the appellant whose dos santos the government here stripped mr santos of his citizenship on the basis of the unconfront testimony of an absent an unreliable former u s a s adjudications officer by the name of lucas barrios in so doing mr sentosa is foundational constitutional right under the th amendment to confront those who would bear testimony against him was violated confrontation right is a critical protection at the very heart of our adversarial system and in crawford the supreme court made it clear that it applied any time  a clarence words were to be used against a defendant in a trial to prove or establish any fact in that trial and this is because confrontation through the crucible of cross examination of the declarant is the best means that we have of testing the reliability of a witness's testimony here the handwritten notes and check marks made on mr santos's and four hundred form by due to cater lucas barrios were clearly testimonial that should have been subject to cross examination at trial by lucas barrios the declarer at lucas barrios should reasonably have believed that his check marks and handwritten notes would have been available for use at a later trial and this is so because the naturalization interview process itself is a unique being in the realm of immigration proceedings in that it if you signed it afterward why isn't that bishop well start because there are still words that were not those those words written on the document were not his words they were i understand that there were not his words but why do they have to be his word to be adopted they do not they do not know what critical is whether he signed it before or after the notes were made right why w time i mean it logically speaking an alien wouldn't sign it ahead of time but the problem here is that we don't know if this particular interview proceeded according to u s c s policy and procedure or whether he was asked to is there anything in the record that would tells us why the judge denied the motion and lemony other than that that i did my understanding is that this case was transferred from one judge to another judge i understand is there anything in the record that tells us why the motion was denied i don't believe so and so the argument we're making is that the statements themselves are they weren't adopted admissions and it's sort of circular reasoning to argue that they were because the entire basis of the argument is that we don't know what this is typical of in the course of the trial that there's a a hearsay objection or some other objection or overruling it doesn't explain why the court is doing that what does the case law tell us we have to do when we review the naked denial in the face of your hearsay objection basically well in the face of a hearsay objection i believe this court's review is for an abuse of discretion when i'm a i've course i know that right ringback so the question is the court does not abuse that was basically whether or not that was adopted statement was right and so our argument is that it is not because that was because there was evidence that that he signed it afterwards let's put it this way  the probability is he cited afterwards well i don't agree that we can even argue that there's a probability that he signed it afterwards because we don't know what happened during the interview was that anybody say at the time the judge made a ruling or prior to that that he had that he signed up before had well i don't believe anyone argued that in court but i do believe you are going to have argued testified was there any testimony in the record that he signed it before the application was filled out no the testimony in the record provided by the u s a s adjudications officer who did testify then why couldn't the judge find as fact that it is probable well follett preponderance that he signed it afterwards because thing that made sense well i would say that that's not actually a fact in the record then it would just be a fact well let me ask you this did the the witness testified to the side afterwards yes she did ok but that's the policy that you signed it after it's filled out right not ahead of time right there's no reason the cited ahead of time right no that i am not worth listening with you know the date of the interview i believe the interview thousand and seven yes that's the day he filled out the application is that correct and then the bottom half which is in red ink and says that no the contents of this including the corrections numbered ones were so far to true and correct and he right above his signature is the day january th two thousand and nine so why is that not some evidence well we're not arguing that he didn't sign it on the date of the interview the question is whether he signed it before or after the questioning began by including the corrections one through eight so the corrections were hand written as the interview went along so why not say it was after the interview well so per us policy in procedure correct that the interviewer would go through the questions make the check marks make notes and then ask the applicant to reaffirm under penalty of perjury that the corrections made were true and the well that's what they have here and the interviewers numbered the corrections one to wherever on the form they made it one through eight that has to all be done and then they fill in the box how many corrections they were one through what it's consistent so it has to be after the the question know where the questions even asked were i'm talking about is an ice or the document to the back of the face of the document the only reasonable inference on the face of the document is maybe five is that not true well that's it don't believe that that's true because again we don't have the person who actually made the marks telling us yes i asked him a question there right elation that says how you fill out the back of it and sign it i believe it or not there must be a regulation i don't know if there's a it if there is is the problem that she said when she testified that it's usually or generally filled out this way instead of that it's always filled out this way correct and so by saying usually or generally she was essentially saying there may be some times when it's not right and what we do know is that every interview is unique to the applicant who is presented to the adjudicator and it is i value at all if that was the case that would be accurate yes ok so you've had nothing but worthless documents after all this interviewing is taking place that i let me actually let me amend my answer if i may answer i see my time is on document itself that mr santos filled out earlier on in july two thousand and seven that we're not arguing that that document is not it admissible the argument is though i understand right the document after the interview becomes worthless the interview portion yes becomes worthless if it became clear that he did not follow policy and procedure there has to be a regulation that tells people who do these things how to fill out the document that's there some more there is that i don't know that for sure thank you important to remember at the good fight so there were two trials in this case before the st trial at docket entry one hundred and thirty two this is the status conference pretrial the disappeared before the st trial the judge ruled on all of the motions and women and this issue was raised unsubscribe before me in the box and so i find that would be pursuant to rule eight hundred and one which would be a party admission as adopted by the defendant based on part thirteen of the he had a implied finding that the document was signed after it was filled out i think that that a confrontation clause rule for all three correct areas yes and then the best record in a dialogue and the correct i think that the most reasonable explanation is that the court was simply adopting the court's ruling from the before the previous trial where it spelled out in some detail that it was relying on the party admission rule under rule a to one and that resolves the confrontation clause concern as well now i think the reason that the language of the form in the testimony below  is ample evidence there are really three fold one is the fact as as my colleague forthrightly acknowledged they did not raise this below in fact this argument was inconsistent with the defendant's entire defense which was yes i made these statements but i was mistaken i didn't understand what the form was asking for when it said were you ever arrested i thought it was arrested in the united states not abroad that was his defense so the idea that the government would have had to put on specific evidence to show that he had signed this form signed this certification after the other changes had been made there simply was no reason to do that it also as i think  was point about that yes so with respect to that check marks on how do we know that he understood what the check marks meant that is that the check marks meant that he was affirming what he had written on the application well i think we know that because it says so in the in the admission itself if you look at page fourteen this is government's exhibit two which is in the government supplemental appendix the language of the of the certification is that i certify under penalty of perjury that i know the contents of this application including corrections numbered one through eight those are the handwritten notations and that they are true and correct to the best of my knowledge but now but corrections certainly the words  agree with you but how do we know that he understood what the checkmarks men well that there was or that's covered by corrections there was extensive testimony at trial that explained why these check marks were made and officer diaz testified at great length about everything right down to the color of ink is preserved by bears no question that the officers knew what the check marksman but the question is how do we know that mr santos knew what the check marks meant and that he was adopting you know i've confirmed this to the officer the checkmark simply mean as as officer diaz explained they simply mean that the adjudicator asked the same question that was written on the form asked orally just i think i'm not being clear if i understand what the check marks mean right but if we're saying that mr santos adopted all of the markings on the form that the officer put on them then don't we need to know that he understood what the markings meant well i think how can you adopt something if you don't know what it means well i think he has certified that he is is fully aware of their content credibility issue yeah i mean it's a credibility issue of court he didn't testify that the adjudicated is not correct nor door did mr santos whatever the weather or the case may be it is a credibility issue correct so the jurors why i don't understand why it's a credibility issue if he had said i agree with all of the markings on the document right then i would agree it's a credibility issue but he said i agree with the corrections that have been made right and a check mark is not a correction so how is he supposed to if that means i mean maybe he does know i'm just asking how he knows that well the check i think that it is important to keep in mind exactly what the check marks represent they simply represent that the asked the same question that's on the form orally and again response was consistent and i recently understand that but if we are saying that he confirmed to the  is what he said right that this is what he meant this is what he said he didn't have any corrections and we are saying that he understood that the check mark there meant that he confirmed that to barrios don't we need to be able to show that he actually understood that that's what the check mark meant because how could he adopt it if he if we don't if he doesn't know what it means judge or isn't by my i'm not sure what exactly more there would be for him to confirm at that point he's already confirmed his answer if you're asking did he also understand that by making a check mark the adjudicator was stating that he that he had confirmed that answer that's what i'm asking yes because because we don't have the his answer so we're relying soley on the check marks to say that he affirmed his answer and were a lot and really what we're relying on because you're doing it through the adoption is we're relying on his signature on the bottom affirming that he was adopting the contents including the check marks which were the affirmations of what he was saying i mean maybe it doesn't matter because maybe it's not testimony i don't know if you want to address that but i mean feel free to you look at the form he's sworn to all the answers check no i mean he's filtered out himself no and they're not contesting that he didn't fill out the original application that's correct ok so it's got no and all all it's got is a check mark over the the no so there's not in a thing additional he's already got that he says no to those question that it's correct that one affidavit says i know that the contents of this application including corrections numbered one that's that is the key to writing down what mr santos told him and mr santos it doesn't it doesn't matter whether or not he understood the checkmarks anyway because the government is relying solely on the words as well that the government is relying words that he has written down and those clearly were adopted because those are corrections one through eight now i also think it's important setting aside this entire matter to value the checks mar  for the government's position is as i understood it was that he had lied morally correct and so that's why it matters right correct it matters because his oral statements during the interview if he lies about those those would provide an independent ground for denying his request for natural is because he's failed to generate good demonstrate good moral character that's correct now i think that all of the notations including corrections one through eight which is express lee adopted demonstrate that but setting that aside for a moment this also is not testimonial because as the supreme court explained in melinda's diaz public records of this sort just do not require the sort of testimony that the confrontation clause intended to get at the reason these aren't testimonials because the primary purpose of this document is to determine the applicant suitability for naturalisation it is not to generate evidence for a criminal proceeding and that's what the supreme court has explained to it in that circumstance this the confrontation clause simply does not apply if he if he adopted the information that the matter where the confrontation clause if you disappear doesn't correct yes if if if the court finds that this was adopted under a later one i think by definition confrontation clause would not apply because we have no right to confront your own statements yes so but but even if the court weren't convinced by that i think clearly this would qualify as a non testimonial statement and there are as we've explained in our brief a number of cases that have established including in the naturalization context these sorts of statements including these sorts of hand corrections are not test you know public rights i think that might be right i'll tell you the one thing that gives me some pause and i don't know if you want to address it it does seem like the officer there is in a position of assessing whether the applicant is being honest or not right and so they're making and adjudicatory determination in that way do i think he's being honest if i don't think he's being honest then i'm not going to recommend him for citizenship if i do think he's being honest i will does that affect the analysis at all do we need to be concerned about that and even if it does affect the analysis does the primary purpose part of the task out laid out why i don't think it affects the analysis only because i think this probably blends of the two parts of your question the the  determination of the applicant's honesty goes to whether or not his request for naturalization should be granted or denied it's not an effort to root out evidence of potential crime if it were otherwise then the mere fact that there might potentially be criminal penalties for lying to the government if that were sufficient to establish a statement is testimonial i think every statement anyone makes to any government official would become testimonial because under eighteen us c one thousand and one dollars or other false statement statutes lying to the government about a material matter is always always a crime and so it's not simply the fact that there might be incidental criminal penalties that would attach to line which you have to look at as the supreme court explained in davis in melinda's diaz and in other cases it is this court has explained in current bio and many of the other cases cited in our briefs is you look at what is the primary purpose of this even if there's a secondary purpose that might be served that by rooting out potential false statements that could result in criminal prosecution is the primary purpose that i don't think anyone would say that the primary purpose of filling out a naturalization form is to generate or i'm sorry adjudicate in naturalization form is to generate evidence for a criminal prosecution it's to determine whether the applicant should be naturalized that's why the confrontation clause doesn't  his application would have been denied because he would have failed to demonstrate good moral character as we've explained in our brief there are a number of other grounds on which that determination would also have been made i know that my colleague didn't address those in her argument so spanish with an interpreter or how is the interview conducted i understand it was a conducted in english ok and up wondered if a purpose of these interviews are really to try to cause some i still doubt their form you know these are long forms to help the applicant get it right so they can be admitted yes that is because these forms they might be checking something they don't need to check well both officer d as in the defendant's expert witness both testified that that's one of the purposes of this is to simply make sure that the applicant hasn't left anything out because obviously when you fill out a form sometimes you might there might be some discrepancies be had a good purpose to try to help  somebody said yes yes actually both witnesses both the government's witness and the defense witness explained that ok thank you your word of it a regulation there must be a regulation that obstruct how to fill out these things i don't know available to the applicant thank you would we find those i believe the current instructions are available online on the u s c i s website i don't know that the instructions for this particular  anything that's on the website now unless it indicated that it had been there at that time right i think that's fair though though the if you're not on the website they should be on the website because a case like this not occurred but this business of signing an application in the blank and then it filled out later on you don't pay any attention to it it makes it worthless document yes and that the government can't function that way that's correct so if so are there ought to be something somewhere that tells these examiners to be very careful about how they go about their job yes and i often testified at great length that that was in fact the requirement i wasn't aware that there was a transcript of the objection that trial i knew that there was an objection a trial i wanted to address st the court's concerns about whether these statements are testimonial and if you go back to crawford and you really look at the decision there are laid out three core classes of testimonial statements and then sort of listed you know of course police interrogations you know others like pretrial testimony police interrogations of course those would fall into this class of testimonial and then in davis what davis did was it focused on this one core class of testimonial statement and that is a police interrogation and it applied the primary purpose test within the realm of a police interrogation to determine when is a police interrogation testimonial or not so that's where we come up with this whole if the party being interrogated by the police is seeking emergency assistance then that the primary purpose of that interaction is not i don't believe the primary purpose test necessarily applies in every situation to our relief under the confrontation clause and justice scalia said as much as clarke when he talked about the primary purpose test merely helping to sort out among the many people who interact with police informally who is acting as a witness and who is not and he made clear that it's not a condition precedent for the confrontation clause to apply here these interviews are conducted under oath under penalty of perjury and the statements are made under circumstances under which an injective witness would reasonably believe that his statements could be used in a later criminal proceeding and  is court in the united states v charles actually did hold that statements made during an immigration the proceeding were testimonial in that case there was a interaction between someone at a port of entry and a c d p officer and this woman was taken to secondary inspection and then questioned by c b p officers at the port of entry in this court held that the interpreter statements as to what that defendant said during that interview to the p p officer were testimonial in nature and therefore that interpreter should have been present at trial in order to testify and be subject to cross examination and if if the court had applied a primary purpose test in a situation like that obviously the primary purpose of you know being at a port of entry and being in secondary inspection is admissibility into united states it's not necessarily criminal prosecution so i think applying the primary purpose test to bar relief here does a disservice to crawford in the number of testimonial categories that it leaves out and i think in the courts discussion with counsel about what are the check marks mean did you cite charles in your brief we did not formed the entire basis of the government's prosecutorial evidence here because the government got up and they said well of course he knew he was lying and of course these were material because at the interview he reaffirmed all the checkmarks means he reaffirmed his answers on the and four hundred form and then further clarified you know says no others or no other do you know other offenses no other arrests and so they used the adjudicators markings and words against the defendant a form of the basis of this criminal prosecution and that's why this is so problematic that the adjudicator wasn't called to testify and this case is most similar to  the th circuit case that we did cite already on a blanco and it raises similar concerns because if you don't know what happened during the interview and you don't exactly know if the defendant understood what the the procedure if he understood the process if he understood the order was he placed under oath did he provide documents was he asked us if it questions we don't know any of that and their argument is these these documents are worthless basically that your argument argument is that argument is you have to bring the office that the interrogation to testify in which case the document is nothing but something that could impeach the officer or whatever but they're not had no probative value at all it's not that the document doesn't have probative value it's that we don't know what the actual additions to the document mean without that person coming to testify understand that if i were writing opinion and i very quickly i'll just say that is normally what occurs and if you'll read even the opinion cited to by the government in support of their position the person who would you to k to the application the person who conducted the interview the person who filled out the form there almost always brought to testify that sort of like when the supreme court said that the person who did the drug testing had to come to the right well in bowl coming that was the ball coming decision that that's all that we're asking that happened here is that the person who filled it out be brought up and be subject to cross examination to fulfill the cross confrontation right of mr sent us thank you