the court good morning sarah weinman and federal defenders of san diego on behalf of mr one castro this case presents two sets of issues requiring reversal i'd like to focus on the first issue which concerns the confrontation testimonial statements because under crawford their statements that the clearance quote would reasonably expect to be used prosecutorial ie the government on appeal has come up with some reasons why chain of custody statements might be used for non prosecutorial purposes under other circumstances but the record evidence here shows that the circumstances were intended to preserve and present evidence in a criminal case and for that reason the statements meet the evidentiary purpose test we know that for three reasons first of all the case agent below said that the case of that said that the chain of custody statements serve an evidentiary purpose excerpts of records one thirty seven and one thirty eight he repeatedly stated that it's the regular practice of homeland security investigations and drug enforcement agents to keep these records for the purpose of producing evidence one way or the other you actually want everybody in the chain of custody to come in and say if ever am i understanding correctly we're not saying that the government has to produce every declaration to was in the who was a link in the chain of what you're saying right now i'm more confused are we talking about are you talking about once they chose to reopen yes ok pick up there because that's a very helpful because the judge indicated that there was some trouble with the chain of custody and that government reopened and did what what they did upon reopening was they called the case and the case agent got up he was not there at the time of the seizure he was not there at the time of the seizure he was not there at the time the drugs were moved from the point of seizure to the vault to that was link's eleven and fourteen so what happened was the case engine got up he sat in the witness box he looked at these chain of custody forms and he literally read out the signed statements of the government agents at least two three four five six seven nine ten twelve thirteen and fifteen he read these other document statements into the record that surrogate testimony of statements that were designed for prosecutorial purpose and i think you've already acknowledged that the government doesn't have to bring in will just make a hypothetical ten linked chain they don't have to bring in everybody wrecked and so but your position is because they chose to introduce this that on reopening the one witness that they had to do because they chose to present evidence of all of these interesting links by reading the  statements they had to produce the signers of the statement so that's everybody that's everybody in this case they could have said ok we're just going to read you know a handful of those links but then they would have had to produce the documents who signed those statement produce know how many were they required to produce there is no rule as to how many they are required to produce how about one if they had produced one then they would have produced one and defense counsel below would have argued that that  insufficient and the government i don't care what he would have argued what would the rule of law have been the law would have been that at that point we would have made the rule twenty nine and  argued that there was in so i don't care what you would have all you did tell me what the law was how many would they have had to produce there's no law that says they have to produce a certain number and i think i think the passage in the lancet so what would you have government agents that essentially what this comes down to under the if i marry purpose test is that when a law enforcement agent makes a statement that's generated in the course of producing evidence in an ongoing criminal investigation that statement is a testimonial statement and has to be introduced through the life you know what happened was the district judge here said well yes i'm troubled by the absence of chain of custody evidence i don't think that the government i think he did a terrible job putting on chain of custody of the government disagreed and said no we think it was fine and the judge then went through all of the evidence including that as it existed prior to reopening including discrepancies in the weight amounts of the of the packages compared with the drugs tested  find that these that the government hasn't met considering a fair forgive me for interrupting but to be fair judge brinn is also said pretty clearly i worried about this last night i think i made an incorrect i think i made a mistake yesterday and the government relied on it and if i had sustain the objection the government surely would have cured so what was what's the harm in him trying to fix his mistake otherwise he's prejudiced the government's case well first of all he didn't make a mistake he did sustain the i disagree with you about that and then what's your answer that the  harm here is that the judge recognized that there was an argument that that the jury could find that the drugs were linked to to our client and he sought to having recognize that there was a possibility of a he told the government to reopen their case that's improper the government didn't want to move reopen their case they didn't move to reopen their case this is not the type of extreme reluctance with which a judge as such it's an argument of misconduct believe the judge acted improperly in this case he did mention the case law and cite the standard about extreme reluctance he was aware that he was supposed to be extremely reluctant right he did recite the extreme reluctance rule but he mis applied and mis identified the standard for when reopening is appropriate based on whether the government was on notice of the omitted evidence that the court said well you know they were on notice here and therefore reopening is ok but the standard is that when the government is on notice and a let's not to present that omitted omitted evidence that reopening is disfavored that under those circumstances the judge should be extremely reluctant to go in your analysis the fact that the judge woke up the next morning and made a mistake and that and that the government relied on his ruling to its detriment if that doesn't play a part in this analysis not on this record where it's very clear from the record that what the judge said was that the chemist can't testify to other people's links in the chain of custody alerting the government to the fact that they would have either have to fill those links were arrested or rest knowing that they were the district court here as your honor noted ported this court's precedent verbatim from hernandez made and engaged with the parties and the couple little certainly your honor the district court here quoted this court's precedent about the appropriate legal standard that applies in reopening cases forbade him and addressed a variety of factors relevant to that consideration with the parties here concluding that a variety of facts supported his decision to allow the government to reopen here the documents that were admitted after reopening were properly admitted and i would emphasize for your honour's that in its report in his reply brief the defendant has narrowed the issues for this court consideration so the defendant does not contend that any statements from that appeal or terran brousseau implicate the confrontation clause so at this point what the court is left with is the evidence prior to reopening which is that the packages were concealed inside the defendant sure that i agree with what you just said i think she's definitely let's just talk about the first link search which i think is pretty squarely raised the person who testified on forgive me that the name of the seizure agent yes officer thank you so so that person testified on day one i think yes about what he did and there's all kinds of photos of the stuff in the back of the truck and whatnot the contraband there so different the case agent then testified and i heard opposing counsel argue that that's a problem because he went through each of the change i guess there's fifteen links i have not counted them but even let's just talk about the first one is that not testimony on the little stickers or whatever it is to indicate that that that those that contraband went from officer nakheel to you know link number two no your honor those those notations are not testimonial for two reasons seizing officer had an obligation independent of whether this case was ever criminal that would have been really good evidence for the government to introduce i understand the argument that the da or the government has to keep track of controlled substances just like a bar code just like fed ex keeps track of a package where they're going to prosecute somebody or not and i looked hard for that evidence in this record and it's very skinny but i think i've reviewed it  thoroughly but on in this particular case when we talk about whether or not that sticker was testimonial counsel it's pretty tough to argue that the government wasn't intending to prosecute this individual right maybe in a different hyp person was seized at the border with his drugs in fact he was literally sitting on them right i understand a location and i think that this case then is analogous to the united states versus morale is where the forms in that situation are forms that border patrol agents fill out when they encounter illegal aliens in the field and sometimes those encounters result in criminal prosecution sometimes they do not right in this instance but it but but whether they do or not they fill up the form is your point exactly and that's the same when drug seizures occur at the border a form gets filled out regardless you know the problem is that's what i know to be true from other cases where is that in this record where did that where did the witness explain that agent medrano explained that they are under a legal obligation that's what he said so where's the test do you have any other either cite for me because he doesn't explain that we would do this whether there's going to be a prosecution or not which i think is the critical point is not i understand your honour's point i think that at various points talks about how they're under a legal obligation to keep these records i don't ever says regardless of whether the case goes to criminal prosecution or not but the fact is that these are forms kept regardless of whether the case actually is criminally prosecuted and on top of that if you look at the stickers which are attached to the boxes themselves and these are boxes that were admitted in the united states case in chief prior to reopening the stickers on the boxes themselves are not the sort of at stations affidavits that are the formal sorts of statements the confrontation clause was intended to foreclose these are initials by was meant to address ok if you could hang on if you could just give me one second i have these and i i want to make sure that i'm understanding you correctly because there's there's this stickers that are truly stickers we're not talking now about the d e a seven or the afa the custody affidavit that's correct and then there's another rectangular sticker that's on the box you can see boxes yes so exhibit ten zero zero wait a minute that's a photo of the methamphetamine addict excerpts of record two sixteen through two eighteen  about her initials about the dates she was indicating that these initials the dates were what she did to keep the chain of custody there was an extensive colloquy both between the united states and turned her so and between the court about these writings and then the united states offered the boxes themselves into evidence and it's the stickers on the boxes themselves which show the drugs were sealed by the time they got to turn over so they were seized by one  i'm sorry they were seized by officer not peel from one castro on april thirteenth they're identified and then shipped off somewhere to a chain of custody you don't know at the time whether they will be used in the prosecution but they might or might not be impressed yes or the other thing you might do with them is work sees them and forfeit them just keep them or destroy exactly or honor and to ensure that all of the drugs are destroyed and none of them make their way into the public domain it's necessary to track when to track to track the amount and measure but you don't know when you identify them and ship them off whether it for a criminal trial or to be destroyed it could be either one yes or no that's correct but at some point you do yes i mean someone in the chain of custody somebody decides hey this case is going to  it might not be you know ok so the seizing officer takes the drugs on the date of seizure there's notations on the box from the seizing officer the testing officer then talks about her part in the chain of custody she introduce right yes your honor so in the government's case in chief the evidence that was admitted was stickers from that p r from the date of seizure then terrorists talking about receiving boxes that had on them and then turned brousseau at the lab at the lab exactly so to the extent there are missing parts of the chain they're not they're not implicated by the confrontation clause because the united states is the defense noted has the option of presenting that those parts of the chain that it thinks are crucial and that's what the united states parts are crucial in this case counsel in this case the parts that are well let me back up i think there are a couple of ways to show the drugs identity here one is chain of custody another is the distinctive nature of the package in itself which one of you are relying on so we have both actually in this case which one are you relying on were those implicate the confrontation cause i'm trying to get you identify which links you think are important ok in this case i don't believe that chain of custody evidence was necessary to identify these drugs as the drugs that were seized from the defendant so you're not relying on that you're not relying on the photos i think that the photo evidence is sufficient by itself without chain of custody to identify these drugs as though it's really just a yes or no are you relying on the photos this is this is we're back to dental work i'm are you relying on the photos yes we are relying on the photos ok so i thought about that too and i looked through them because they have this very unique marking big bird which doesn't it those photos at the border are quite distinctive wrapping and whatnot of marking but i can't see all of those in the photos at the lab can i i believe that you can exhibits twenty three and twenty four where the exhibits that turned are so admitted and they show the full right of each packet so maybe i said it backwards so that it's twenty three and twenty four i see it very clearly and that's those were taken at the lab yes ok so can you show me the corresponding photos at the border yes the is that right s again in our two fourteen the duct tape seems to obscure the writing a little bit what's the best when you want me to look at to see that writing exhibits ten and thirteen are as you are forty six and forty seven those are the p that match up with the drugs that are so tested ok and to be clear your honor i think what we essentially did at trial was a hybrid of the distinctive nature of the packages combined with the chain of  contained distinct packages photos of which from the date of seizure that photo is from the date of testing and then an actual turn do so and i can interrupt you right there sure and then the judge and then the custody form which i don't have in front of me but then it becomes three boxes and i think she testified she couldn't put it all back in it's like three packing a suitcase so she put it in three boxes that's her and then it ok so that explains why we get them three boxes yes ok and you were saying at trial testifies that these drugs are the same drugs that i tested so the link between and the judge asked her how do you know that yes and in part her answer was based on the notations on the outside of the whole and she talked about how the stickers and labels on the boxes let her know that these were the same drugs that she tested in the lab and on top of the photos and the partial chain of custody evidence that  was put in in the united states case in chief the fact is that the way that these packages were concealed in the defendant's vehicle the way that they were put in the seed suggests that there is contraband these were not packets of sugar that the defendant was b how does that help us and once they're removed from the truck i'm not following how that helps us i'm trying to say that even outside the particular drug evidence that was introduced here there was evidence at trial to show that the defendant had methamphetamine and that consisted of the way that these packages were concealed the fact that a drug a drug dog a trained canine alerted to the package but the problem is we've got to make sure it's the same stuff could have been some other illegal drug your honor this is these are white you know there was a white substance inside the packages and this was my yes and i'm sorry could it have been heroin not based on the evidence that was admitted in the united states case in chief so in the united states case in chief the defense on cross examination of officers who were on the scene that day confirmed not only that there were drugs found by those officers but confirmed also that methamphetamine some other illegal white substance you do the testing so you do need the blogs in the lab and of the five s the testing certainly helps here what i want to emphasize is that your thirty nine in cross examining the seizing officer defense counsel actually confirmed with the seizing officer that he wrote his report after finding methamphetamine in the vehicle how does he know well it was not brought out at trial but this particular officer did conduct a field test and the defense in their own cross examination confirmed with the officer that he found methamphetamine in the vehicle that he wrote his report after finding the methamphetamine and i says he testified he doesn't say he seizure and the date of trial and the date of testing the photos from the date of testing show the package is intact that the wrappings have not been removed as judge kristen noted the removal of the wrappings was what required the introduction of a third box effectively what occurred was there was more evidence in the united states for you to support the foundation for these drugs than was legally required and there was enough prior to reopening and after reopening there was no error in the admission of the yes just a quick point your honor is with regard to the to the photographs there are significant discrepancies between the photographs that the season agent took and the photographs that the chemist took for example if you look at your two fourteen the photo that the seizing agent took of the tape together a long string of bricks in the bed of the truck some of those some of those bricks appear to have some markings on them some do not but if you look at our two twenty the photograph taken by the chemist up at the top there she indicates that all twenty packages had markings seven photographs taken by the seizing agent not all of those have markings on top because if you give me is that because the duct tape covers we can't tell what's under the duct tape is up to know not know if you look at year to fourteen even where the duct tape appears you can see some markings above the duct tape but then on the other bricks you can't see anything at all and one other discrepancy that i would point to which is that we could be wrong on the cyber i don't know they're not here they're not here those these are the photographs of the seizing agent took at the time but the other remarkable thing here is that the duct tape at here is all of these bricks together over this some type of plastic covering but in the chemist photographs where the duct tape is removed you don't see any kind of disruption of the of the packaging kind of damage that you would expect to be caused by tape or movable so there are significant discrepancies here and for that reason we don't believe that any that that the air can be said to be harmless beyond any reasonable doubt there were there are discrepancies in the record there were weight discrepancies there were differences between the photograph and because the statements were clearly made when there was an ongoing criminal investigation before that investigation had been resolved and were made by law enforcement agents their primary purpose was an evidentiary one which is testimonial but there are no furthe will be submitted