since barksdale please the court my name is adam schwarz and i represent the appellate misstate of barksdale along with me counsel table is chris king in the herring the supreme court held that closing argument is a critical part of a criminal trial and in doing so it found that there is a sixth amendment right that counsel has to be heard in summation of the evidence at the point of view most favorable to him and this court has followed that line of cases in hall do and gains by stating that a defendant in a criminal case their counsel has a right to make all legally tenable arguments that are supported by the facts of the case that's a right  when in the middle of closing argument the district court reversed its previous holding and restricted defense counsel from making what was going to be a corner piece of the argument of the defense essentially that contrary to what the special agent stated in the case special agent sauer the miranda waiver form was not executed prior to her arrest interrogation but after the fact at the same time she was signing a that's one piece that's probably the strongest piece of evidence i didn't see any evidence of the other inferences your honor that can be raised from the testimony at trial was special agents our stating that they were in a rush to try to meet with her to do a controlled delivery but he expressed list saying that they did it as and it was and before anything else happened eighty nine that was special agents hours testimony that is correct yes however the inferences were made that could suggest and as the district court stated it was very odd that there was not an advice of rights timestamp there's a time stamp on the advice of rights for moreover what was interesting and what a cornerstone of the argument was the fact that this consent to search form which was executed and did have a ten pm time stamp was not mentioned anywhere in the agent's report the agent admitted that that was discussed during the argument on february ninth outside the presence of the jury when the issue of whether i could make this argument was was discussed by the court in the court said you can make that inference and the court made a a one eighty turn during closing argument if prior to argument defense counsel was aware of this issue and the changing of heart that might have affected quite frankly the arguments that would have been made to the jury but this was a critical point and a critical part of the can't notice that immediately after the district court ruled and his ruling was very very if it was really i don't have it right here but sustained please disregard that statement it was extremely brief  of agent what is in the evidence you can consider in quote you know the word the defense counsel was not intimidated in the slightest he went ahead and told the jury in effect that if they could look right before the objection in fact the government objects it's on page forty one of the transcript the government objects i responded at the time know you are the statement did come in the judge said no no sustained sustained at that point i began to try to make an argument independent of the statement just to try to argue the timing of the miranda form along with the consent to search for him before i could i think made forwards out the judge stop me said sustained sustained right but i guess the heart of the the question is even assuming that you're right that there was an error that something came in and she should have cut off close the way she did while i was in the air almost in light of everything that was presented erst the judge advised the jury to disregard the statement and we presume first that the that jury's five of the thrust of my question assumes that's correct and assumes that the jury probably followed the court's instruction so so what is really the question why in the constellation of the facts and circumstances as they came out here would it have mattered first of all your honor it matters on a harmless and error analysis in two ways as the court held that the rule twenty nine hearing this case squeaked by because of one piece of evidence and that was the evidence the testimony of special agents our that miss barksdale stated that of the of the that she met three people in curacao and the one per and one of the people she mentioned was levy that was the judge said i think quoting or squeak by that was the one piece of evidence that permitted the jury to e hear half of the case the conspiracy counts so it was a critical piece of evidence and as the eleventh circuit is held in the pattern jury instructions provide that the the jury is supposed to hear the nature and circumstances surrounding the post arrest statement consider them very carefully so this is a critical piece of evidence toward to judge special agent sours credibility on the statements is exactly very similar to this court's holding in the hall in the hall the district court allowed in fact defense counsel to make all the factual arguments but then to try to apply those factual arguments with respect to the significance of i understand it is not that the statement from the agent of what barksdale polgar about levy was inadmissible but your ability to undermine and cross examine the agent was affected by this but i was able to is that the heart of the argument though the heart argument is not able to make the argument to the jury to challenge and it to challenge  credibility of the case agent who said barksdale told me a achieve met three guys in curing one of whom was levy yes ok and then to add to that the fact that m barksdale at least by the statement she made to special agent during the time of processing statement which did come into evidence the government through their objection that she asked were special agents hours partner was because he said quote she said quote if if i signed the form they he said they would let me go so it also suggested i was unable to argue at closing that anything that was signed was done also under false pretenses which is also a critical argument but that's the first truth of anything he said was irrelevant and harmless and the mower over it was clear that the government was not trying to get the get the jury to think that what he said being he was asked how much money do you have on you you answered two thousand dollars there wasn't a search of his wallet to confirm that but that was actually in the opening lines in the first page of closing argument he had two thousand dollars on him when he was leaving miami going to curacao on his way back when he was searched he had no money on him that was used for to further the drug conspiracy that's was that was the government's are now yes that one very convention because the drugs will worth two hundred thousand dollars only when they enter the united states right but he wasn't going to buy two hundred thousand dollars worth of cocaine with a down payment of two thousand dollars was a no but the funds could have so while it's true the statement was true rather than false it wasn't something of great moment was it i think it's relevant considering the government made it i'd agree that it's relevant my question is it wasn't something of great moment given the amount of the dope fam orkut value of the dope and the small down payment if it was a down payment at all that he had in his pocket i think many if you walked out of the country with fifty grand in cash that would have been a far more powerful piece of evidence and i'm just asking why this was a big deal in the light of the fair market value i think it goes to maybe i think there are get was that it was a payment to the courier that was there in the case but let's talk about the other things that he said i mean declaration runners bear with me i'll accept that that was a true statement but is it not true that the thrust of what he was saying when he was interviewed by the one theory of the case the government's theory of the case was designed and intended to conceal the true purpose he was asked why he was going there he said i'm just going for a visit he was asked again and then he said i'm going they cation both statements by at least the theory of the government were false they all those weren't offered for the truth and then he was  asked about his plans on reaching cure a crow and he said i have a friend and then he was asked about the fact that they found carbon paper and he said the carbon paper was there because he was a federal offense x warehouse employee and the carbon paper was intended to be used to make copies of a contract while in cura call all by the governments light false and all designed to conceal their theory which was the true purpose was to go their own consummate this or this cocaine transaction none of that would implicate the would i see my time is up if i could you know please i agree with the court my only statement would be that the binding declaration that the bag that the black carbon paper was in was his his alone when he packed himself the binding declaration that related right but the purpose of the bottom of the carbon paper that he offered was by their lights a false exculpatory statement right yes your ok so the only thing that you have that he offered that was true in bedded in this large account that they theorized was false was that he was carrying two thousand dollars and the second thing is he said when  about the length of his trip was only for two or three days and that was true but why would that be a big deal when the passport itself reflected that he was only there for two or three days those in other words where there are i categorically extrinsic proof of the length of time independent of anything he said yes your honor the only other issue that i would say is used for the truth the matter sort of was the binding declaration that the bag carry on bag that had this allegedly incriminating black carbon paper that was a big part of the government's case that it was his he packed it himself and no one gave him anything else well but he conceded that the carbon paper was his and he explained what it was for right district court proceedings i would first like to request that the court affirm the verdict on all three counts and i would first like to address the confrontation clause issue the defendant makes much about the fact that levy made a binding that the ration of the suitcase and the carry on bag that he had however that binding declaration was of no import because there was plenty of other evidence in the record to prove that those bags belonged to him first he had the carry on luggage in his hand so the c b p officer when he starts him knew that the luggage was his also when  the c b p officer requested the checked luggage should be brought to him the flight attendant brought him that back stating that it was the bag that levy had chat prior to trying to get on the flight so although the b declaration was true it was of no moment because there was plenty of evidence in the record to show that the that the luggage in the suitcase was his let me ask a luminary question on this confrontation primary purpose of the interrogation is to establish or prove past criminal events that could later be used in a criminal prosecution being counterpart to a lefty and officer novoa was not the primary purpose of it was not in order to establish a past criminal event in fact the purpose was to make sure that levy was not leaving the country with any illicit materials the c b off the c b p officer was acting under his border authority which is to stem the flow of contraband into or out of the thrust of my question is not does not challenge that they have a right to question me but it seemed to me and you can help me with this that when they confronted him and they interrogated him it seemed to me as the interrogation grew as their suspicion grew as the focal point of the became more suspicious this encounter seemed to me to turn into something maybe then it's something that was a little bit more than a more normally routine customs in korea at the border where they go in and out of your company and i mean they're focusing on him pretty hard and they go back and ask they don't just take his inquiry they don't say what do you go in there i'm going for pleasure i'm going for a visit i'm going to sit on the beach of curacao they don't stop there they probe and they probe and they probe and they probe look to me that by woman rights that was designed and intended to focus on whether he had and was in the process of committing a drug transaction if that's so why wouldn't that be testimonial and implicate confrontation your honor the reason why that would be testimonial is because all of the conversation between the c b p officer and levy did not focus on any past crime that had already been committed as the supreme court stated in davis the key inquiry is whether the statements are involving some sort of past crime or if it's for looking or it's addressed to a ongoing pro if the crime is ongoing if there is a conspiracy to smuggle dope into the united states and it's a crime that began before the inquiry was occurring during the course of the inquiry and was designed to be consummated after the inquiry you know wouldn't the inquiry still trigger testimon comments no your honor and the reason is because that is the exact issue that occurred in davis for you washington and davis the victim in that case called law enforcement because there was an ongoing crime occurring there was her attacker who was beating on her and she specifically stated to the nine one one operator he's jumping on me again he's jumping on me again and then i one one operator asked her well who is what is the name of your attacker and she gave the nine one operator nine one one operator her sealants name the court said that the reason why those statements were not testimonial was because the primary purpose of that conversation was not to  establish events for criminal prosecution but to stop or to stand and going i accept that in davis but why i wouldn't want to reasonably conclude that as this dialogue this interrogation went on it changed then it turned and it turned into something that really was focusing on whether he was committing a crime well your honor in this sense this is going to be an object that's what the testimonial inquiry is and then the inquiry is whether a reasonable person and levy shoes what think that when they're answering the customs officers questions about the items that are in his luggage or the reason why he's going to curacao that those questions was somehow be used later on at trial and no reasonable person when they go through customs would think that answering those questions even if they possibility that he was committing a drug crime because these questions which were simply what is the purpose of your trip you know why are you going there why are you going to visit are you going for business are you going by yourself what kind of activities are you going to do those are routine questions that are asked of many passengers that fly through the miami international airport on a daily basis and so that would mean that these sorts of questions whenever they are ask a person who is answering them always has a thought in their mind if i answer these statements one day they're going to be used against me at trial it is completely known to everyone who goes through customs that these sorts of questions will be asked of them and the primary purpose of those questions is not to establish a crime but to make sure that there are no illicit materials that will be axin in the country or entering the country assume for the purposes of  and what was the list that elicited was testimonial in nature and let's go to the second question whether any things that he said that were offered for the truth a suitcase and the carbon paper so that ms barksdale could return to the united states with that same suitcase with carbon paper wrapped around two point one kilograms worth of cocaine there are  statements that could have been true but there was other evidence that could support those statements for instance it is incorrect what the defendant stated that the government argued that the two thousand dollars was a payment  the courier the government may never made that argument anywhere in abundance did did the offices see the two thousand dollars what did he melee say he had that is unclear from the record however the agent testified that levy said that he had two thousand dollars in cash on him there was no indication that that was false and you weren't offering that statement to suggest that it was falls right with that we were offering levy statements as a whole or understand that taken as a whole your theory is it was designed to conceal the true purpose of the but in bedded within that were statements that he also made which were true yes it was not right and among them war that he was carrying two thousand dollars in cash on him that he was going for only a trip of two or three days and that the luggage belonged to him yes those statements are true however they are not testimony all right but i said i wanted you to assume for the purposes of my question that we didn't agree about that and we concluded that the interrogation turned into something that became testimonial as it unfolded in the course of the false exculpatory narration that he gave you offered statements from can't would not implicate the confrontation clause because they were offered for the truth but to the extent that embedded in that false account there were three things that he said that were true that would implicate the confrontation clause assuming we get beyond the question of whether it's testimonial how do we handle that your honor it is the government's position that the court could consider those statements to be harmless for several reasons the two thousand dollars paid the two thousand dollars that levy had on his person was of no import to the government's case it was never mentioned during closing and contrary to what the defendant has stated the government never argued that that two thousand dollars payment was used to pay the courier secondly the fact that he stated that he was going to curacao for two or three days is also levy leaving the country on july tenth and then the second officer who spoke to him when he came back was on july twelfth so this evidence in the record that the vacation was only two days what about the friend that seems to made t you like most of the things that might have been true well your honor in regards to that particular statement it is the government's position that once again  prevaricating when he made those statements because at first he stated he was going to curacao to be alone and he was going on vacation by himself and then he turned around and said that he was going to vacation to meet some french but when the officer asked him what his friend's name was he couldn't remember where he gave some name and the officer related to the jury that he did not believe that that statement was true and that that was some sort of a cover up to conceal the true offering it was not to prove the truth but rather to prove the that it was not true that he would prefer a kading is that the real crux of it yes your honor and if that's true it's pretty clear that that's what the government was doing because the agent asked for it based on my experience on training if somebody is taking a long time to give you an answer or if they don't know the details like the person's last name it usually means they are being deceptive yes your honor so it is pretty clear here with respect to the friend that the government's purpose in offering it was not the truth of it yes your honor and that is precisely why le statements does not implicate the convo your position is it doesn't matter that embedded within a false exculpatory account by your lights of it there was some shards of truth offered because the whole  maintaining that the statement was excluded by the judge's ruling was the statement about the miranda ruling haven't the miranda questions and foam having been signed  first off it's i thought in reading the record that potion of the record that the statement that was most likely excluded in only this was not the statement about miranda at all but rather the statement quote where's the jury where's the guy with the tattoos question mark he promised me that if i signed the  they would let me go is that not the question that was stricken when i see that my time is right now may i answer your question and then briefly conclude you may your honor the statement whereas the guy with the tattoos he promised me that if i signed the form i could leave tonight the first part of that statement stand that but is that not my question is is that not the statement that might have been she began to mischaracterize what the form was that she referred to in that statement if i signed the form i would be able to go home tonight and so it was that mischaracterization that the government objected to and the district court mr shortz you've reserved five minutes thank you starting first with where the government left off the issue of closing argument the reading of the transcript was not limited merely to the statement the guy with the tattoos where was he if he he said if i signed a form he would let me go it was related to the entire argued because it was all part of one argument quite frankly it was i think that's entirely speculative the most proximate phrase when the objection came was the one i just read about where is the guy with the tattoo the one that told me if i signed a consent that the jury would construe to be excluded i disagree with that assessment your honor because the argument that was being made related to the forms being signed and when they were being signed and w counsel began to try to at least argue the miranda statement he was then cut off by the court again where the judge at that point said disregard the statement and defense counsel made no further commentary with respect to that issue and why this is important not only because it was went to a critical part of the case but it also infected the credibility of defense counsel which then the government as we stated in our briefs exacerbated that prejudice in rebuttal close by arguing the credibility of defense counsel's opposed to the facts of the case and here your honor it was critical because while i think we cannot this wouldn't survive in their harmless error standard because in the previous trial as was stated in the february ninth hearing the part of this argument was presented to the jury in the jury hung the statement of miss barksdale did not come into it at the first trial but the argument about the timing of the miranda forms was argued in the first trial and the jury but this is a structural error in our view because as this court held in roy there's a line of six men cases that when there is a government intrusion or interference with a critical part of the case which is what happened here that doesn't fall into the harmless  standard that's a chronic error and and based upon the rule this court's ruling in and roy and hall we believe that that is structural error for it to be reversed turning to the testimonial nature of the statements at hand statements here were not like a nine one one call in davis or in bryant where an individual shot and police were trying to figure out if there was a public emergency if there was a public safety issue immediately going on in fact in bryant judge  sotomayor makes clear that the zero sum it has to be about a past act not a concurrent act dichotomy that the government suggests is not the right analysis or framework right but we're talking about a someone at the border leaving the country or someone at the border coming into the country the customs and immigration officials will normally it has sort of basic pedigree questions you're not suggesting that that inquiry standing alone amounts to testimonial commentary are you i think your honor it actually made based on well i can mature into that but you're not suggesting that for example if you're coming back from a trip to curacao and you there with your wife and you've got two bags and you've been well tanned sitting on the beach and the customs agent says to you where you been and you say i stayed at the x hotel we were there for days for a vacation are you bringing anything in he says yeah i bought a bottle of rum at the airport that inquiry would not be testimonial in nature would it may because they are formalized question ok so either it is or it isn't i'm giving you a hypothetical my answer would at the border that mean by that all right every question asked by every border official of anybody entering or leaving the united states would be testimonial in nature that can't be right can't be seems to me no your honor but i'm something more has to happen and i'm trying to get you to tell me what more has to happen to turn a normal routine rote inquiry into something that becomes testimony so i think your honor it's the initial questions then spur follow up questions because there is something there that the that that the agents feel they need to inquire further and that's where it turns into interrogation and that's where the questions are formalized and not informal like was the case in bryant and it was one of the critical issues that casey your position has to be that this inquiry which may have started out as a purely road inquiry mature it into something else yes your honor and it said that point that levy's commentary became testimony you draw it let me ask just one follow up question to you again where the statements were designed in the hole and  for the purpose of showing that the declarant was offering a false account for his visit to curacao why should it matter if a confrontation cla purposes that one or two comments in the embedded within this false account happened to be true because the government used different parts of the statements in different ways i don't think we can just cut and say they were only used for the falsity parts of his statements were used for the truth a matter of sort of buying declaration the two thousand dollars that two thousand dollars was not used and what you quoted did not indicate to me that the two thousand dollars was used to indicate that he paid the curia anybody else i don't think they argued that they argued that there was two thousand dollars when he left and not when it came back and that was a beginning of closing argument so it was a relevant argument for the government make i see my time is up and you take your time in answering and same thing with a friend now only on the one i worried about that was not mentioned in the closing case we very much appreciate you taking on the effort the grizzly representing your client we appreciate the efforts of the united states and we will move on to the next case