good morning ladies and gentlemen before we start this morning i would like to call everyone's attention to the fact that judge over there is in fact here with us you will see her on the video screen and you will hear her asking questions  please give give our technology just a half a nd to work when that happens we are now ready for our st case of this morning which is united states against jose trinidad garcia and al good morning may it please the court my name is peter henderson i represent jose trinidad garcia on the goal when we were doing a categorical approach analysis is to figure out what is the offense of conviction and whether that offense of conviction matches or fraud or than the federal definition of the predicate offense mr trinidad garcia was convicted under a statute that includes salvia and so it's broader than the federal funds and so the question is is that specific statute does that prescribe one offense or does it contain multiple offenses the indiana court of appeals has said it's one  offense and so we know the offense of conviction it is a statute it's not divisible the government has agreed that this statute is overbroad and so that really is the only legal question whether the statute is divisible the indiana supreme court laid the foundation for describing this statute as indivisible when a defendant was caught with seven different controlled substances under a separate law and the indiana supreme court says if if that's just involved in a single sales transaction that's a single statutory violation so this is this whole nightmare if i can call it under mathis of trying to figure out which are simply alternative means of committing the same  a so there are each of these other things i assume would be divisible that you've listed could correct there there are multiple offenses within this particular statute but the statute of conviction th correct and almost all of them refer to the weight of the marijuana and so when a misdemeanor is aggravated to a felony based on the weight of the drug then that is going to be a separate element you have to prove that it involves so much amount of marijuana almost most offenses the current statute that was amended after mr trinidad garcia was convict are going to be divisible because most of them are about how much weight was there of a particular drug but in our case it's just alleged it could be any of these drugs and the state courts have treated those as alternative means of committing one offense rather than as elements of different  the person possessed both marijuana and hashish at the same time it was a guru who decision it was the indiana court of appeals that's correct which is i think you point out it's a unified court it's a unified court ever but we know that d if so if you possessed two substances under the subsection that's one offense if they were elements that would be to ephesus and so we know that these must be means so we think this error is pla n there's binding authority in indiana saying these are alternative means of committing one offense the categorical approaches is that and it certainly affected mr trinidad garcia substantial rights bank creating a sen been imposed a sentence was vacated but it wouldn't make a practical difference because this doesn't qualify as a felony drug offense the mandatory minimum sentence would be ten years under the old law and ten years under the new law  so we think that congress has clearly said this type of prior conviction should not be used to enhance the sentence under the st step act but regardless of whether that applies or not on a recent and saying because this is not  offense the mandatory minimum will be ten years well so the end of the judge gets it's a question of does the judge get to pick the sentence or does the prosecutor get to make the sentence and so we think it's a key spanish speaking cooperate in witness was subject to such grave doubt that two federally certified in court upon interpreters saw fit to cry foul and this court recognized that more than thirty years ago a concerned that he waived any rights to appeal he seems to have been very clear that he didn't want to do that but what i don't see in the record is any request to the district court for a mistrial which it seems to me given the path the district  rt was going down is actually what he probably needed to ask for and i don't see it from a different point of view when i compare mr bargain lopez's testimony from the st day in the nd day it's very hard for me to find prejudice on this record so if you could address those points i'd like it yes your honor it's true that the defense counsel did not move for a mistrial but it but it's also true that the court seemed to take as a given the government's proposed two courses of action opposed both forced mr hernandez to shoulder the the risk of harm here either standing on a  potentially incompetent translation on the one hand or inviting this witness to to come back and give wholly cumulative and prejudicial testimony so why was it so bad i mean yes mr barron lopez testified maybe that was like introducing the same testimony twice there were some minor differences in his testimony but really not a lot and there was an enormous amount of other evidence in the record require certainty of error and and implicit in that ruling is is a recognition of the realities of life in court translation in this case as as is likely common in many cases with live in court translation there is no record of the source language so to speak so there's no record of the spanish questions that were asked to this witness after translation and there's no record of the spanish responses and what that means is that that there is uncertainty as to the scope of any potential error but that as you say that's common i mean i'm very sensitive these issues of translation i've probably spent as much time as anybody in this room having my own words translated into this and that languages and i would have known whether the truck if the chinese translation was right or not i mean you're at the mercy but this is the way we do it we have the federally certified interpreters m raised the point the district judge responded district judge thought ok i need to fix this so different arrangements were made for the nd day but you would becht a different result that and you generally get a different result pinkish and red and pinky transparent just didn't strike me as huge understandable your honor and in many cases that difference might well be in consequential but here that that difference went to a key theme of the government's case that that was present throughout the investigation and the prosecution of mr hernandez and to allow the government now to turn its back on the importance of that key detail that discrepancy between the two days of testimony again that the question here is merely whether there is great doubt as to the scope or accuracy of trial not whether we have certainty that there were errors and so those those differences from day transcripts for both days that's correct your honor but this court should take into account in addition the actual claims of error raised by the two disinterested federally certified interpreters those grave doubts  fix this because of the uncertainty the uncertainty that the jury may have convicted mr han and it is on the back of evidence that wasn't what it purported to be in other words  there's a risk that the jury convicted mr hernandez on on the language and testimony that purported to be from this key government witness but was actually from the mouse mouth of a potentially incompetent translator and so you there was some discussion about whether the jury should be instructed to disregard everything that mr barragan lopez said the st day in the judge decides not to do that she just says let them you know translation itself not the actions or inactions of the trial court lot of boys as perhaps they were due process claim requires prejudice and that takes me back to you know if if the judge had instructed the jury disregard this potentially unreliable set of testimony now i'm going to give you something that you can rely on perhaps you mean we believe that juries follow these instructions that's the way we have to run the system if we we would have a different case i think that the counsel didn't ask that's correct your honor counsel didn't ask and i agree that that probably would be a different case but that does not a limb in the reality that there is respectfully i would i view it more as uncertainty rather than speculative and that's inherent in this court's own ruling both you had more examples of discrepancies between the st and nd day when the full context comes out just as you know we have the he received the methamphetamine from mexico testimony the st day and maybe he was about to say you know because he ordered it to come or something but if the interpreter was interrupting and failing to allow sentences be completed as the interpreter said not paying attention to syntactical rules for spanish which are different of course from english rule but we don't i feel like we would see the marks of that in the transcript your honor if there were more examples of inconsistency i agree that this would be a clearer case but again that doesn't the errors in the concerns raised by these disinterested federally certified up interpreters are still out there they never walked away from the light and the judge tried to fix it by getting a different interpreter that's that's where i mean obviously the government's put all its eggs in that basket  translated and the logical conclusion of the government's argument is really it's an attack on the credibility of these two federally certified court appointed interpreters and would usually be once in trial not infected by those great doubts by that uncertainty ok thank you very much your honor may please the court bob what on behalf of the government i would start with mr tenet at garcia's argument or here on clean air review and i'll say sheepishly thankfully so it's this isn't the strongest argument i've ever had but i government of gates which didn't just say duncan and the two statutory interpretation case that it cited martin bates don't control but acted that way by viewing six separate charges based on six separate drug types as know it's really it is a little off on the side and the government has this somewhat weird comment in the brief about you know if we take a stiff interpretation of the categorical rule i mean it's it's this case is all about the modified whether there are different offenses or are simply different means and frankly looking at the structure of the statute to start with looking at ever road secondly about this very law we regularly rely on state appellate courts in erie context we rely on them in this context and i don't see a thing from the indiana supreme court that tells us we shouldn't sure and  and to the extent that the government's position about reliance on intermediate state courts was misunderstood in the reply brief what i was trying to say was that it's a nuanced approach and where you know in the air rodriguez the court argument we are repeatedly told it's not our job to write opinions for the state courts if we can tell what the state court is doing then especially on a matter of state laws and they're the boss not  us i'm flabbergasted at the notion that we would be picky about every road based on whether it you know meets a law school class standards and your honor all i would say to that is i'm trying good law and all everett has to go for it is duncan then all i would submit your honor is that the government's position in this case is that that renders the error not plain and and that is the that's the full extent of the government's argument here and i say that because i want to be a credible argument and the credible argument is there is some dissension about how these statutes apply and i'd also add every member duncan was a different section  sure and it was a different section than gates it was and so you know looking at section by section as the reply brief i did hear you know some sections are going to have a lot of substance is included within the so i don't take that argument too far so he was introduced in two thousand and eleven which i will admit led me to cite the wrong statute rely on a textual argument base that mr anderson correctly pointed out was mistaken and i'll happily abandon that se criminal but the rest of it i still think gates shows that at least currently the state treats the statute as divisible by drug and published its non presidential i agree and it relies on richardson for that proposition and i also just read really quickly that in my modeling of the statutes that change three times and four years i did miss one argument that i would have made and i told peter about this before and i understand if it's for for that but there were no selby prosecutions until twenty so there is a do in this argument to be made that there never will be any salvia prosecutions under the statute of can that underlies the fifty one  case that goes of course and or stand your honor it's what the phrase reasonable possibility means sylvia's in the statute i get that but sort of statute and you know we're constantly hammered you know to follow the words of the statute it's in there the rightly points the court to and with that  translation errors this court has erected sort of a two part standard that have to be grave doubts about the translation and that's that goes back to the ninety five dollars case and then understand of all they have to undermine the verdict and the government would submit that there are that mr finn you know hernandez can't meet either well but surely you mean if two federally certified interpreters take the initiative to go to the court and say this is a bad translation what else just to take for there to be grave doubt these are people who are not just you know by lingual they are it's hard to to do this kind of translation i don't know if you've ever tried but it's my wife's my father in law is a korean translator for it and for so you appreciate incredibly difficult it's a very intellectually demanding thing and so these people go to the judge appropriately voice their concern so why isn't that enough at least to satisfy the grave doubt side of the syrian siani test i would say that regardless of the context this court asks for some specificity in the errors that have been identified and then separately they weren't taking notes they try to say he sees jumping in before the end of the sentence he's not allowing the thought to be completed it's messing up the syntax it's well i'd say two things st there was a redo and the redo both fixed the certainty problems how can there be any uncertainty when there are no claims of error and of the do and nd the redo shows as your honor said and as the government tried to detail  that no one can point to any major problems and solution and that also goes what about the nd one i am not too impressed with pinky transparent versus pinkish  that phrase at the end of the case is something quite different it is different i agree your honor but there was so much evidence that he was in charge the entire bergen lopez was a surprisingly good witness not a key witness in terms of the way the government was laying out the case he ended up being very helpful but the case depended it in substantial part on iraq who or don't you don't you know has control purchases which were all printed hernandez and that included benito hernandez telling him go sell more sell more and get back to me and driving around with and telling him take me here take me here take me here and then employing a middle man and to go get money for him that phrase was never uttered by anyone else of course in charge but the jury saw that he was in charge and admittedly two people were in charge as the government tried to explain to us the piercer states woman introduced these two men so that they could start a drug organization and they did and they let it together and go for the most part up to the drugs from mexico the evidence at trial and the p s r basically says as much but the source so dependent you by source but the source of the drugs to the men was more often than not permitted hernandez and it's not clear from the trial record why they set up their arrangement that way but they were both in charge of the organization i'd also say because you know i hesitate to go very far with this but in the interest of mr imus's professional reputation is on the line and he is still a highly respected interpreting record not what he's put by the defense as much as the government but by the district court judges they still think he is and i won't say anything about the other interpreters in this case but i think he may have been having a bad day for all i know he may have we have a record with the statements that we have and f know that i think the judge was wrong to say to mr pena to hernandez that you have only two choices you can accept the st day or you can have a redo that wasn't true mistrial was a choice and maybe just starting over again from a clean slate would have been optimal but of course he doesn't ask for it and the judge could have had very good reasons for not introducing that thought herself and testify again and not only so asserting pretty clearly then did not wish to waste any right to an appeal but the district court judge clearly gave him the choice between the from st of all this isn't like the right to testify which couldn't visit only personally wafl he had a good defense attorney and that defense attorney helped him through the waiver issue the st utterance when the court what was contemplating whether or not to recall ber lopez was the defense counsel saying i think that's a good idea and that was before this morton's fork was proposed and the idea that we're going to say to the district court heads i win tails you lose is i think although this isn't a typical waiver he should not be able to challenge the thing that he asked the district court to do especially when he took advantage of  and he's trying to preserve his right to do exactly what he's doing here just say on appeal this was the wrong solution the district court should have you know slow down tech taking a look at a wider array of options one of which certainly included mistrial maybe one of them included more instructions to the jury i mean there are other things that could happen that just from court didn't do some of those sure so then i guess the question becomes under the mistrial standard which is a high bar is this a play there and i don't see how it could be given the nature of the accusations given how big they were given that situation like this is that i have her and i'm unfamiliar with that happening in any of our cases and we've we've had in the last couple of years still a cartel with standing defense attorneys who could move for that under the cia if they wanted to but didn't and even in routine cases i don't know i would have frankly love that as the person receiving the record to present to this court and i've never been able to avail myself of that  i could i can't say for sure but i'm one unfamiliar with the procedures are trusting yeah i don't know if that is unusual to our court i don't know about other districts but i'm not familiar with that happening very i mean it would create a much better record for this court because it's a translation of something that was captured on the audio could be done in a much more careful you know with a lot more time to think about the right way to translate what's being said sure that all i  the government invoked to wayne this which would be an argument that the statute is not overbroad the government has conceded that it is overbroad in its brief so we think that it is waived that argument as the core pointed out gates is a non presidential unpublished decision and that is not to be cited to any court and in any case the gates involved different weights of different drugs and so the majority of the analysis in that case is exactly what we are proposing so unless the court has any further questions thank you all right thank you and your time basically ran out mr ball but if you need a minute i'll give it to you borrow it from mr henderson