right away just a minute until the courtroom is all settled down their search for mistakes in earnest five days before trial on april twelfth which was the day of the calendar call they reached out to her former attorney dave raven who was able to then get in contact with mis fix he expressed through contacting a family member of hers and then through a series of communications he then communicated to the prosecutors in this case that he was able to determine that she was in delaware that she was living with her boyfriend florists off weygand and he also provided prosecutors with her boyfriend's phone number he also in another e mail to prosecutors noted that he believed after speaking with her he believed that she would cooperate with the prosecution in their prosecution of this case and he sent another email indicating that he was willing to help in any way that he could further if they need if the prosecutor so require his  but nothing in this record indicates that the prosecutors followed up in any way on the information that mistake so most former attorney provided them with as to her whereabouts nor that they took him up on his offer of further assistan t in this case instead prosecutors moved to introduce her video deposition at trial in lieu of providing her live testimony claiming to the court that she was unavailable when in fact she was not unavailable to clearly able to reach her and he then provided prosecutors with enough information by which they probably could have attempted to find her and in fact in testimony h enforcement removal operations actually went to her uncle's house which was the the address that they believed her to be in february so on february twenty first so she was released on february sixth the government or the government agent found out on february seventh and then on february twenty first in foresman removal operations visited the home and questioned whomever was there and determined that she was not there but between that time  april twelfth which was five days before trial nothing was done to search for her but even if you consider the efforts of the government five days before trial reaching out to her former attorney to get in touch with her they were provided with enough information in terms of the state that she was in with whom she was residing and this they were told she didn't have a telephone correct but and all they had was the boyfriend she was in delaware right and this is in miami the yes and she didn't have disputed she didn't have a phone in this tracker correct and they got the boyfriend telephone number are right and i thought the agent called the boyfriend but it was inability to leave a voicemail message and so he sent a text message saying please contact me direct and nobody contacted him that is correct for the record but what the agent also said in his testimony when asked if he would have been able to run this man's information through whatever databases the government had he responded i guess i could have done that but i did it in part because we had her video deposition already what do we do with the fact that the government also sent us a painter to the true lawyer and the lawyer said he would send it on to the not he indicated that he had forwarded the subpoena to her boyfriend but the service it was supposed to be with her and delaware and was the contact point correct alka it's the government's burden to ensure that a subpoena is properly served and so mr raydon ended up giving the government enough information at least to run it through a database to try and figure out a physical address for mistakes in delaware through which they would have been able to potentially served a subpoena directly on her and i think that effort would be more in line with what the confrontation clause requires in terms of determining whether a witness is truly unavailable to testify at trial what is the significance if any of the agents statement that he guessed he could have done i things but he didn't do them because he knew that her testimony had been preserved  i believe that that just demonstrates a misunderstanding of what the law requires the government to do in order to uphold its burden under the confrontation clause the right to confront a witness as you well know is one of the most important rights for a defendant in a criminal trial and while procedures exist to preserve a witness's testimony in case it may become necessary to use that testimony if the witness is unavailable the government's number one requirement is to attempt to attain that witnesses and that material witnesses live testimony at trial regardless of whether they have video recorded deposition of that testimony the analysis really should go forward assuming that that video deposition doesn't even exist and then the court should ask itself to the government do enough to obtain her presence at trial in order to testify before a jury and a judge and so  the agent in this case said you know i chose not to do this because i had heard testimony no less than three times in this case and there were multiple things that he could have done it they you know unlike a lot of the case law that the government cited to in their briefs you know this was a witness that was within the united states and subject to the subpoena power of this country and had enough snippets of information to run it in order to obtain her life presents and they see that by  february twelfth the government the prosecutors in the keys were trying this case knew as early as february twenty first that this witness had not been deported and was still present in the united states there was a number of steps that the government could have taken that they chose not to if she came back here she would have been deported the issue came back to miami if she if she was a deportation order right there was she had tried to get a visa through three times couldn't get it  she she came without a visa and there was a deportation order in effect right right and she was mistakenly released from custody before she was deported correct and where was she in custody then there she was when she was a under the material witness warrant she was being held at the federal detention center here in miami right the polish she would have been available because she was right here but they released her or somebody released her right there was a misunderstanding it seems like from the record between i and force that removal in the agent on this case but there was a deportation order in miami outstanding right but to your point whether or not she would have actually been trial is irrelevant to this analysis the analysis i think i agree with you that they had the deposition they still got to make an effort no matter if they have the deposition and they don't have the death so the question in the case is did they do  has no incentive to come back here doesn't have a you know all these factors it's it's rather in that situation how much more they have to do well than what they did and i think the record clearly demonstrates through the testimony of the agent in the e mail exchange between the government and her former attorney that there was a number of things that they could have done that the agent himself was question about that he very cavalierly said well i just  didn't think i needed to do that because we had the video deposition of her and so regardless of whether she would have come here willingly or she had been deported those are all questions that we will never know the answer to because her presence w the record tell us if they know where they are in delaware other than the just in delaware know so they know that she's in delaware they know her boyfriend's name and they know his phone number ok and that's all they know and do we know from the cell number that they are able to call the boyfriend but the area code of that cell number is yes so they have his phone number and they also know that her form but what is the area code on that cell number i don't know it off the top of my head ok so i don't know if it's a delaware number but her attorney was able clearly able to talk to someone and also leave a message for someone and not only that he indicated that he had been able to get in touch with a family member of hers and so the other issue is you know how the government started this search a little earlier reached out to this attorney a little earlier there were a number of options available to them in order to secure her presence i have one other question related to what you've been talking about to the government did any of the agents or anyone in the government ever express that he didn't do more because it believed that she wasn't going to return because she had no incentive to return because she was go to be deported well i believe that at the motion hearing on this in the trial court one of the arguments the government made was that she didn't want to be found and so that was part of the reason why they argued  question is did any of the people who was there any testimony that the reason that there were no further measures undertaken that they thought that she wasn't going to return regardless because she had no incentive because she knew if she returned she would be deported i don't believe so so can we consider that i don't believe so it's not it's not in the record that would be an inference perhaps that you would draw from testimony but there is no record of an evidence as please the court good morning my name is albert levin i represent reinado smith who is the appellant and i also represent mr smith at the trial level with regard to that last issue i would just point out that the government search the house just and she won they are yes judge well my point being that they could have probably done a little bit of a bit of a follow up after that search perhaps have met with the uncle between february twenty first and april fifth again i don't want to take too much of my time on that issue i have i've adopted the brief of co appellant and also her argument i'm here primarily to discuss the issue raised in our brief with regard to the prosecutor's closing argument in rebuttal where after i had closed that indicated that the boat that was located in this case was found between key largo and bimini my client when he was arrested told the agents that they had been adrift for six days and they had ended up there that they were actually going from freeport to bimini the prosecutor in his rebuttal closing argument stated quote so ladies and gentlemen to go down south away from where your last caught it's not accident or mistake you're trying to get in undetected and he was responding to a comment i had made my closing argument with regard to the shortest distance between two points being a straight line  and i objected to that comment because it was nothing in the record as to where mr smith and this came in in the form of a four hundred four b where the judgment of his previous conviction for the same offense was introduced indicating that he had pled guilty in the west palm beach division of the southern district of florida it made no reference as to the fact or the matter regarding where he was quote unquote caught with regard to this issue so there was nothing in the record evidence to show that he in the previous conviction had been caught in west palm beach where he caught he was caught in manila pan which is in palm beach county it's a small town just to the south of palm beach but there was nothing in the record to discuss that he was in fact caught in and all that the jury had to rely on was the fact that he was convicted in the west palm beach division of at and southern district of florida he would have been helpful to your argument about routes the jury had not been caught and beach  no it would not have been helpful to my art doesn't really matter it does matter here are because the rebuttal argument was that the reason he didn't go directly from prepared to palm beach county was because that was where he had been caught previously so he wanted to avoid going the same route because he'd been caught in that area before so he went further south which is ultimately where the boat ended up the coast guard officers testify that there were a variety of factors that could have le and there was nothing in the in the record here other than this conviction to show that he was convicted in a court in palm beach county which doesn't necessarily mean that the offense occurred in palm beach county there are plenty of cases that are indicted in fort lauderdale that get assigned to judges in west palm beach there are cases that get indicted in miami that occurred in miami that get indicted in west palm beach so for that matter the fact he was convicted in the west palm beach court didn't necessarily mean that he had previously been caught n morning it's i'm lisa herschel behalf of the united states seated with me at counsel table is curt lincoln heimer who is one of the trial a usas in this matter as to the first issue of the united states made a good faith effort to locate a witness who was brought to this country expressly for the purpose of being a witness in this case this witness was found on a boat offshore and the only reason she came to the united states was to be a witness in this in this case she had no prior history or prior address in the united states the government filed a material witness complaint and she was taken to f c where she was deposed and at her deposition where the defense attorneys and the defendants after her deposition she was ask you question i'm sorry to interrupt but  i i will although i don't want to conceive the first problem but i i and related that in this case it was definitely harmless error given both the strength of the government case as well as the fact that there were two witnesses who were deposed and that their testimony was very similar so unlike the situation in a case like toronto cerrato where the deposition was key evidence in the only evidence of something here there there there was all the circumstances around surrounding the boat the boat on which these migrants were found the testimony of  various officers about the location of the boat and how be story that they were headed towards them and he didn't make any sense because the drift would have been northward and not southward so that they were definitely too far south for their story to make sense the presence of all these migrants they were all haitian migrants who had an extra set of clothes and no identification which one of the office testified was somewhat typical of these situations the deposition of the other deposition that was admitted into evidence where the testimony was that they were headed to the united states and so given all the circumstances of the evidence well that i mean the other deposition and wasn't quite as clear when you agree that they were headed to the united states i would say that the witness was led to say some things that he where there were he made somewhat conflicting statements on cross that he didn't know exactly where they're headed he wasn't driving but his testimony was that his parents had or or as a father wanted him to come to the union knighted states and that's why he was on the boat to come to united states so was miss victim a clear better witness i would say yes she was but that is  witness was also gave the same testimony about the fact that they got on this boat at night and that they were heading to the u s for a better life and given all the other evidence i do believe it's harmless  r but i don't i don't want to concede the first point because i think under the circumstances of what happened here and with somebody who was in the country subject to deportation with no prior address here's here's my problem with you know if agent no what he had said you know what i stopped looking for her because she had no incentive to show up she knew she would be deported if she came back here and she you know there was no way she was going to show up it would have been futile we did what we did but he didn't say that he said we i said i just didn't do anything further because we had the other we had the depo testimony that to me is a problem and let me tell you why so you can address it i mean you could always say that in any case where you have a material witness and you take the depo beforehand but that's not the  test so i'm concerned that if we send a message that it's ok you know that even though you know you could have reasonably done more and you don't do anything more that that's that's ok i think that's a problem do you want to address up well he also testified in this is that page seventy three of his testimony we didn't want her to be at liberty we were trying to find her but being unable to locate her we had no choice but to rely on the depositions i think and i'll say that he does say i mean does he not say three different times you know we had the deposition so we didn't worry about it and does he not also say yeah i  could have i could have gone out myself but i gave it to erode it to handle i could have done it myself i just i didn't do it i didn't you know i didn't it's to the e r oh i think that e r rose had the detain er on her an e r was supposed to detain and deport her and that was their role his role was the case agent and yes and that's my point right what why didn't he do something as the case agent i mean i understand he thought that erode was independently going to try to find her but it had a different purpose and you know we're talking about the sixth amendment right to confrontation that's really not something you're always going to be concerned about but it is something the government has to be about correct and i do think ohio versus robert they talk about the efforts made by the prosecution versus the government as a whole so i would agree with you but  on the seventh called the marshals to find out where she was and once he found out that she had been released before everybody thought she would be released because i think they thought they had forty eight hours minus  weekend which is in the c f r regulation he immediately contacted the young girl gave the uncle his phone number so the uncle could reach out and contact him he immediately gave this it the information to yarrow and then they followed up they went out to the house yarrow went into the house and found in we're told that she wasn't living there so that this the agent knew that he had followed up with what he could do because the owner was the only contact at the that the agent knew that she had in the united states it wasn't until soon before trial when the boyfriend information was provided by defense counsel on when was defense counsel or prison when was defense counsel appointed wasn't it before but wasn't at her initial appearance and wasn't he present for her deposition was for her deposition which all occurred well before i mean february right january so why is it then that he had nothing else he could have done i mean he clearly v a usa on the case was able to do something he could have contacted the usa if you didn't have you know i mean that probably would have been the way to do it contact the a usa say look she's in the wind you know can you contact defense counsel and see if we can find her but that didn't happen i mean two months went by and it wasn't until five days before the trial it is in the record that the agent let the usa know on february twenty first that yarrow had been unable to locate her at the  aro gand to have them go out to the uncle's house again but they refused to go i mean it seems like at that point the agent had pretty much decided i'm not going to worry about this i don't know it's only because i say decided i don't i don't make the record that he was trying to do what he could but that prior to trial he didn't have the means to detain her because that's not what he her head straight i mean he doesn't say any of that i think this would be a different record if you said you know i wanted to go out and get her we did not have the manpower i couldn't receive authorization from my agency because i was assigned to these other cases we don't we don't have any of here that's the problem all we have is him saying i called the euro they said they couldn't do it you know i probably could have done something but i didn't worry about it because i knew we had the deposition transcript i mean that that to me seems like it might be a problem i had the district court that heard the testimony didn't feel that he felt that way but that he'd done what he could but he said he didn't i mean all i mean that he said that there were when he was after if he could have done this or that was kind of like well ye well and i do think the record shows she did not want to be found i've been the boyfriend's telephone number which was provided had no voicemail text messages the agent called it twice text messages and there were no responses so i think the record suggests that she did not want to be found any agent no wiki did say that she was subject to deportation of found so i think she comes back she's going to be deported correct and i think the district court felt that way and felt that the voicemail had been set up on the phone so  t and if it seems like it comes down to you got a lawyer representing her right and so you try to go through the lawyer she's got no address and no phone so i guess the the subpoena to it to the boy fran you know he's in contact whether and is that a good faith enough that's really the question is that enough to show good faith attempt to locate this witness the government tried to go to the will the person's last known address and contacted the closest family member and the court found that that was a good faith effort the court also stated something to the effect that might there be other things that could be done yes but that that wasn't the test for whether a good faith effort had been made in this case very unusual circumstances to have this witness i agree that is and whether other things could have been done test is whether reasonably other things could have been done would you agree that that's what the test is i i i think good faith and reasonable under the supposedly in delaware i mean it was all of a look again from asian if we look at it you know the case law from other circuits for example and obviously that's not binding or anything but i think it it gives a some some insight into what is meant by what is expected to be done the case law from other circuits talks about when the when the effort is made you know just a few days before even though you know the witnesses in the when two or three months before that's a problem i mean that's what the case law says and that's really what happened here i don't know if you want to well to that except that i think you're speaking about toronto toronto and i think that it's different in that there had been efforts made to contact the uncle who was in the southern district in that yarrow had gone out to the house and not found that she was there so i i think that differentiates that from here and that you know we have this illegal alien who's going to be deported if she's found well except that again no one from the prosecution does that i mean that's the deportation people doing that  criminally she had there's no if there's a detainer that means that there's probable cause that she's here in violation of the law well why why i mean it seems like you know we frequently have cases where people are arrested on detainers by agents well this agent just couldn't do it in this guess that he could not he did not have the authority that yarrow had the painter on her and he did not have the authority to do anything else other than to try to get her to appear for trial and she gives her deposition she say where she's living at that time what she was at the broward transitional center so she was in jail then ok i  jail she's at the transition center awaiting deportation is a little different than jail when she's an f t c that's jail the transition center is not supposed to be quite a job but she's not free to leave from there transitional center awaiting deportation as to the closing comment i believe that there was evidence in the record that both smugglers didn't always take the most direct route in order to avoid law enforcement detection and the conviction the prior conviction specifically said west palm beach on it and there was no error in that comment there's nothing further i ask that you are from the convictions thank you counsel so what i think differentiates this case from almost all of the case law that was cited to in the briefs is that here we have a witness who is physically present in the united states and subject to all of the investigative tools that the government has delaware to whom he could have reached out for assistance in at least determine the office of homeland security investigations an office akin to his you know he's stationed here there's an office there is similar to that i do they get in the car and they start driving well no so the argument is they have enough strings of information that they could have pulled out to at least try to determine a physical address for this boyfriend of hers and then they could have potentially visited the home and because the trial date in this case was set so early it was set in february the trial subpoena could have been served at any point after that and additionally because she was unlawfully present in the united states that's technically a misdemeanor which is technically a crime so there's many things that you know any tools that the government had at its disposal in order to secure her presence and bring her back they were also aware of who her attorney was at the material witness sure you know it's hard to speculate as to what she was thinking because we have no idea her deposition to her in her mind had been taken so i don't know that she believes she needed to reach out to anyone you know she wasn't here legally correct she knew that but like i let me ask you question in the southern district of florida people who are arrested for being here illegally and are detained did they on occasion receive bonds from immigration that allow them to to go outside of the the detention center and be on their own on the on the understanding that they'll show up again for their hearing absolutely  that happen with some frequency down here all the time and you know often immigrants are paroled out for a variety of reasons there's many ways for an immigrant who's here on lawfully or otherwise to be to be released from custody and believe the the preference is to not hold and on and on a lawful immigrant whose only crime was entering unlawfully in custody for the entire time of their stay here in the united states so she could have been there she could have believed a number of things but again the analysis is not like what she could have done better or what you know the defendants could have done better the burden in this case really does fall on the government and the same holds true for the harmlessness analysis because because this is a concept constitutional violation the the standard is harmless beyond a reasonable doubt and we don't believe that the government has met its burden in this case her testimony was key as to the knowledge and intent to enter the united states element  was steadfast in her testimony about where she was headed she testified that she paid three thousand dollars to get to the bahamas and that her family paid an additional five thousand dollars to come to the united states and in their second closing the government really hit hit the nail on the head on that point by stressing to the jury who pays five thousand dollars to go from freeport to bimini of course she was coming to the united states and her testimony was the only testimony that hit eve got a lawyer who does represent her is that correct mr reagan did represent her it's clear he represented her on the material witness complete but unclear he continued to represent her what but that's what they're trying to get her to appear at trial as a material witness correct ok so he he certainly acting like you represent her right i think to the left side as from facts the district court because i think he was her boy i think the discord says that the district ok and as i understand the record he sends a subpoena to the boyfriend and based on the record the boyfriend says he can contact her that's how you have to get to her and so why is it just a wrong and saying she knew there was a subpoena for her ok and she didn't come so why don't we take this record the governor was successful in getting the it he's communicating with a lawyer saying she didn't have a phone we're going to get it to may and i'll get it to her so she's got the subpoena for trial i'm trying to understand why that's on the for good site effort to gether here when they show ever with a subpoena you can debate whether or not i'm right about whether she was served in the record shows the government done enough to get a subpoena on her to come to trial i would disagree with that because we know that i'll take for the sake of argument you just agreed that the government goddess of pain to her boyfriend well but the boyfriend has said send it to me and i'll get it to our ok so and  record overwhelmingly indicates in the light of the evidence i have to look at what the district court found when he ruled on this but so is serving as a pain on somebody not good enough i don't think in this case when there was so much other information that the government had it in their possession that could have led to proper service of the subpoena on her and her rendition of her from delaware to south florida testify at th and i would add to that the things that the government could have done and what a reasonably what they recently could have done would be to have contacted mr raven in february when they realized that she'd been let out of custody and not wait until april to contact him that recently could have been done and i don't think we would have even been approaching this delaware issue her testimony was critical to prove that the intent of my client was to enter the united states when you bolster or couple that with the closing argument rebuttal closing argument which merely was that have been convicted in west palm beach without any type of evidence that talks about the court procedure the jury was only left to conclude that he was in fact convicted in west palm beach but the inference is that it occurred there not necessarily so by this court's own policies and procedures with regard to the assignment of cases so the cumulative error is sufficient in