i mean the way the indictment is framed the government's got to touch all the bases in their proof the actual transport of an illegally going by her and the attempt itself or can the government be saved if as they argue appeal is not an attempt that is covered in the criminal code that they're arguing a different type of attempt that the attempt that is contained within the structure  it's been a while since i've had one of these cases that was put forward as an attempt at a jury instructions here are not attempt jury instructions there except for the paragraph that tracks the attempt poor sion of the indictment but otherwise it's a substantive count so if the government i don't if the government wanted to use an attempt erie wouldn't the jury instructions have to have to reflect that i don't know i mean literally that may be you may say my god i can't believe a judge on the fifth circuit would be asking a question that dumb but my question is wouldn't the jury instructions have to mirror an attempt substantive offense for example the mann act it's got an attempt provision in one of the elements i don't know of any case that says we don't just as to any attempt wherever the what the temp is or even not it doesn't it wouldn't be covered by the correct so your argument you're not you're not you're certainly not disagreeing with the jury instructions so if i see it they've in the government embraced all the required elements of a thirteen twenty four prosecution but but but you didn't object when the court said as to the transportation element it could be met by an attempted transportation so here's my question if your argument is just one of evidentiary insufficiency but you agree the jury instructions to the jury that found guilt are correct which of the elements for thirteen twenty four wasn't shown the evidence failed to show that carmona attempted to transport the specific alien alleged in the and that she specifically attempted to transport i guess what your case that says she has to have specific knowledge of the dentity of the alien the thirteen twenty four pattern drugs or aliens they can never put in an undercover agent because of course at that point you wouldn't be attempting to transport or move that person there to correct a dent a fight individual i think what's your breast case that says that the defendant has to have knowledge of this  see at that point you do have a construct of a memory problem if the government's going to name by name and then they've got somebody else that may be a problem here the indictment said a certain alien that's correct ok and i think that the proof hard to show that she undercover you know i've got a kid i can't get caught up in this alien smuggling thing so that that would suggest she knew that she was going to attempt to transport an believe that she believed that the agent was an undocumented alien that's correct but my argument is that the attempt as it's used in the alien transportation statute itself is not in a tent that can tow for the general attempt it doesn't apply globally to the offense itself so congress prove that carmona attempted to transport the actual alien this alternative attempt theory but that was not a valid theory to proceed on  well it could have been if they got the right to attempt instruction but they didn't write or read yeah i asked for an attempt instruction the jury was not instructed on anything but the substantive elements which required that that that is who the alien was that the evidence did not connect her with that particular it will that's that's i mean that's i guess that was up to the jury right you say evidence and connector to that  but i thought the government offered cell phone connections from my young day to the kingpin the woman concho whatever concha and then in turn we had the government had evidence to connecting concha to defendant miss smith's carmona and rome i believe i'd like to just make a couple of points about the testimonial hearsay the government argued that there was a certain alien and that that alien was a young and under our theory that the government was required to prove what the instructions told the jury they must find that there was an alien that he illegally entered the country the testimonial hearsay that we complained was harmful to carmona a yen day was apprehended by a border patrol agent who had been responding to an alert that there was an entry an illegal entry by by someone suspecting that he ended it was this person the border patrol agent detained him questioned him and the the alien confessed that he was a mexican citizen who did not have documents to be in the country wofully that was the strongest most direct evidence to show that there was an alien who illegally entered the country in under this court's precedent and that is a requirement it's not just the believe on the part of the defendant that there was an alien who illegally entered the objective fact that there was an alien who illegally entered the country  he he felt he saw the alien on the border highway he didn't see him cross the corner he was responding to an alert by another agent that someone someone had illegally entered the country he was looking for someone who may have been that person and he focused interest on and so agent lurches on the stand and the government says what's the question that elicits the hearsay the government asked an agent what did and they say what did this man say and the agent said i questioned him as to his confrontation and crawford objection that we had moved pretty child to try to keep out the seven defense that the government fought to put on that evidence because they needed it because it would have been a gap in the case without articulate it's when you make your objection and the governor responded the dischord say oh no this is it all one not being offered for the truth of the matter or this is eight zero three whatever exceptions state of mind whatever no papers and is there anything in the government's closing argument that connected element one alien illegal alien to lurches testimony the government didn't specifically refer to agent march's testimony but argue to the jury you have to find that there is an alien illegally entered and we know we have that that this statement by a lurch as to what again they said why wouldn't her confession make any possible hearsay in that harmless she said she believed boarding was done so why isn't that why isn't that conclusive in fact i don't remember your closing argument at all contesting that there wasn't any legal alien  you just said she didn't have that state of mind no i believe i'm contesting the evidence on the proof that i was an illegal alien was an undocumented alien who entered and but if the defendant herself if the jury heard the defend herself say i knew he was an undocumented alien my name is jennifer freeland i represent the united states i want to begin with an argument that was in the reply brief of carmona ramos which stated that a factual and possibility isn't the issue in this appeal because she challenging the sufficiency of the evidence but desire to be the case and the case law cited in the united states brief factual and possibility really is the touchstone here factual possibility exists w defendant unquestionably intends to engage in the conduct prescribed by law but fails only because of circumstances known to her in the case that is most on point which is cited in our brief the medina case out of the first circuit the defendant in that case at tempted to transport illegal immigrants into the united states he was in puerto rico which was was an attempt instruction given in that so the brief confused me a lot you can't argue that you can't rely on a theory that wasn't presented to the jury that may have been a valid legal theory but we don't know that the jury well the jury wasn't instructed on it you're ok but so therefore why are there sort of ten pages fifteen pages of your brief at all relevant to how we would decide this case we can't say oh well properly instructed the verdict would stand i don't think that is perhaps the best approach for the opinion in this case i think factual possibility and sting approach ok but no i just want to be clear so that because the vast majority of the government's brief says we should affirm the jury verdict because there was proof of intent and a substantial step but the jury was never instructed they could convict on that so all of that argument is not legally correct not just not the better one we can't rule that way would you agree well there is the case the crow case out of this circuit it was an attempt case and the actual challenge w to the jury charge and that was not an attempt instruction but this court affirmed and how that it was not plain error i do see this is where i got very confused by your brief you're saying that we should review the government's error plain air because they didn't ask for a more difficult standard to prove you know that why would they ever want to have the one point three two pattern instruction if you're not asking for the you took a higher proof burden right you do have a problem with an in coate crime because the first element is that an alien entered but yes ok and she says the only proof you offered was a hearsay rereading the record carmona it's council actually conceded that yes and was in the country illegally because on cross examination by the undercover border patrol agent they they said they asked the question say that again they was an undocumented alien on the property issue vali ok their counsel ask a question say but she never met the and documented alien a yes you're right but it was that after the government was able to ask in a licit the hearsay answer was first lurch gets it in of course they're going to cross examine at that to a person who had illegally entered the country we also have well we didn't have direct eyewitness testimony of him crossing the border we have the exchange where the agent lurch was told that there'd been an alert someone had crossed and he sees a gun they causing a major highway where pedestrians do not cross and attempting to jump a fence the key case in crawford that cited in both briefs is the daily on case which understand that you wrote in tw thirteen and it daily on the issue was at thirteen twenty six re entry and whether or not the defendant had citizenship through his mother and the issue was whether his mother had lived in the country long enough that she would have been qualified as a us citizen and it was that the issue of trial both sides were saying one was saying yes she had been here long enough the other was saying no and affidavit of the grandmother and into evidence and the affidavit was key to this issue because the grandmother said no my daughter didn't live in the country long enough and the court said this is crawford they critical issue the defense theory at trial was on a whole different element on the element of the intent to further the presence of the united states they had the theory that you make no harmless trial to the district judge which the district judge embraced was a mistake and i this is not legitimate background not being often think that is an argument to make that we weren't offering this for the truth of the matter it was showing why this whole thing was not hearsay to their theory of the case was that that she was sort of acting as a good samaritan that see what he she was what's your case that says that their theory governs whether or not it's harmless well if they choose in closing argument to focus on something because they feel like well the hearsay statement came in we're dead to rights on that i don't think there's a case that would say that there are subsequent approach i think to me for harmless that no reasonable juror would cool wouldn't have found her guilty if we redact that statement correct but there are factors that are listed here the importance of the testimony is the factor that this court has set out and that's where it gets to it the importance of the testimony everyone agrees this guy entered illegally whether it was cumulative yes the presence or absence of evidence corroborate everything when you see everyone agree what's what's your authority for that where did they agree they are young they all entered illegally that carmona ramos was asked do you smuggle undocumented aliens in the united states and she said yes sworn signed statement how much money were you to be paid for this instance i know she pays sixty dollars but i don't know how much i was going to get paid she being conscious the ringleader here how do you know that the person at the st ignatius of church was illegally in the united states because concha told me and he told me she also said i was going to get a person that i was told to go pick up and take him to the bus this is alien smuggling this is a confession this is her saying she expected to get paid and and i think i think that gets us over the harmless burden because you separately make a similar incriminating self incoming statement but in a noncustodial context when she's driving in the thing but i'm a mother who lie about it say you don't know me delete the messages from your phone the consciousness of guilt is definitely there and i had it totally embrace the fact that some mistakes were made in this prosecution i try not to monday morning morning quarterback trial attorneys but certainly we could have put together some better jury instructions and maybe even a better indictment but cardamom to ramos committed this crime she had every intent  to get paid to take care of and further his illegal re entry into this case back to fuck factual and possibility stealing cases happened and all the time when the drug contacts  ration in an attempt that way and this court has repeatedly held them when it comes to an attempt factual in possibility is not a defense and in medina the case that directly dealt with alien transporting the first circuit quickly shut down that sufficiency challenge and said no factual possibility does not defeat this conviction and ask a question yes ma'am thirteen twenty four cases where you have the requirement that you have here of an illegal alien in the country the last time i knew something about this which is now been a while there was an elaborate mechanism set up to preserve that either preserve the alien i e keep him in the country until the trial was over or to give defense counsel an opportunity to talk to him etc and get some kind of an agreement and that but that was always premised on the notion as i understood it that the fact that he was an illegal alien was a critical past the typical in smuggling cases in the alien was still there and i i think both parties looked for cases sort of more of this sting tight and really medina was all that i was able to find  i want to alert the court that i think we're going to have more sting cases going on in the future because law enforcement does not want to use aliens sort of as bait for smugglers i read some of the cases from the eighty's in the ninety's and we basically would let the aliens sort of continue along the journey till they met up with the next person down the line and that ha s safety implications for those individuals and the department of justice as does not want those type of operations to continue so we might start seeing more stealing cases where when you read through what happened it sounds like good law enforcement for them to get the person in our country illegally use the phone to find the person who was going to meet them at and take them to the bus stop  that's good law enforcing the trouble is when you when you when you staying you better you better ask for a jury charge that says just a substantial step towards completion of the underlying offense or torture here which well yeah who knows why that wasn't don slipping back into a theory that doesn't exist who cares whether she had the intent right the r b c enter in the thirteen twenty four that you charge his knowledge of the aliens then transport that's where we get to the factual possibility that the person who was trying to make me ill did the defendant and crow who's trying to male child pornography to a pedophile or better yet the defendant in farmer cited in our case who thinks he's communicating with a minor there was no minor he's communicating with an undercover agent he and he says how can i be convicted of trying to entice a minor into a sex act there was no minor and i think that's directly analogous to what carmona is now saying how can i be convicted of a tenth of attempting to transport illegal alien when they're when there was no alien and i think that's i do think that's where the rubber hits the road i do wish we had gotten attempts instruction but we didn't so that's what we're faced with here and with regard to the way that the facts of this case came out and i do think it's important that there's a confession part because  i'm standing up here trying to defend a conviction and even though errors were made i do believe that justice was done in this case and i think it's important that the united states always look at the big picture to see whether or not justice was done with that being said i think you burke humors greenberg and a few points i want to respond to the evidence did not show that carmona was committed the crime with which she was charged and under which the jury was instructed even at argument the government did not argue that there was evidence sufficient to show that she knew about a young day that she attempted to transport a young day and i want to make a particular point about the factual impossibility issue because i don't think it was clear in my opening we are not arguing factual in possibility or legal in possibility we are arguing a general principle of legality all of the found one possibility cases that the government sides deal with statutes where congress defines the crime and then also says an attempt to commit that crime is itself an offense the drug statute twenty one u s c eight forty six is a good example of that the child enticements statute and eighteen u s c twenty four twenty two we are saying that there is no theory of the attempt that appears in the criminal code or the immigration curd that comports with th theory that the government is advancing it while that a person or twenty one or twenty two the mann act looks it's exactly the same as not with the word attempt is in the element of transportation is exactly written just like the statute i'm not i'm not sure of that i looked at the statutes in the cases that the government cites for the actual impossibility the child enticements statute the element time's running out what she she says she shifts she is now conceded that there that it was a hearsay statement but then her stress is on it's harmless so what's your best case that that the defend its own confession to the element if i don't accept the conclude your suggestion that it she had to have specific knowledge of this individual so i'm just what i view element one to be knowledge that an alien was present or enter what's your case that  defendant's own confession to that wouldn't make harmless an agent's illicit hearsay statement to the same fact i think it down i think the case is not coming to mind that what is coming to mind is the government's burden to prove the harmlessness testimony hearsay the government must prove beyond a reasonable doubt that that testimonial hearsay did not contribute to the verdict and i