with me on the panel today we have judges joe pryor and elizabeth branch welcome to the th circuit court of appeals i have to say this is the st time that this specific adult will be holding oral argument by telephone so we will have to make adjustments as we go along if we find that there if that occurs but i'm sure we can all work together and make it through the successfully i just wanted to identify a few rules before we start some will be usual and some may be less so because of the circumstances  st of course we will abide by the usual timing requirements except where we have otherwise allowed or authorized additional time and the courtroom deputy will make announcements two minutes before time runs and at the end of time we would ask that all lawyers please abide by the timeframe unless somebody on the panel asked to a question in which case of course please answer the question and to your ability because we would be asking it if we didn't want to know the answers second please identify yourself and the parties that you represent before you begin your argument or your bottom and i think that probably should start us on our way we will try to identify ourselves to the extent possible when we that's fine thank you and good morning again howard sort of nick here on behalf of julio estrada i will be addressing the challenges to the government's theory of prosecution because this case the estrada hernandez case presents a fact pattern not before addressed by the th circuit where defendants have been convicted under the current version of title eighteen united where those defendants did not themselves nor did any one acting at their direction physically accompany or physically transport the aliens to the united states but instead the aliens themselves under their own power approached designated ports of entry two of them at the land border in mexico two of them at miami international airport a designated port of entry flawed theory of prosecution at a minimum a new trial is required because the district court declined to give the defense requested jury instructions which have which would have required a specific finding a specific factual finding by the jury that the aliens lacked prior official authorisation instead the district court in a pretrial order term it it precluded any evidence or any argument about the cuban adjustment act about the wet foot dry foot policy about any executive proclamations that would have led a jury to conclude that indeed asylum seeking cubans do have prior official authorisation the jury instruction that the court gave eliminated any consideration by the jury of that until prior i have a question for you are the two grounds on which you distinguish the meanings as one that here they came directly to a point of entry and nd that no one physically of those two things is well intermingle is the aliens were not transported to a port of entry the aliens landed in the united states remained in the united states for several months before applying for asylum and that is a significant distinction because our executive branch as recently as two thousand and eighteen has invited aliens to seek asylum at approach a designated port of entry and seek asylum there what makes it illegal is for the alien to circumvent the port of entry or for a defendant to smuggle an alien into the came to a port of entry and they basically walked across and came across the border by themselves yes your honor all of the activity that precedes the approach to the designated  the efforts to extract the cuban a aliyev out of cuba to house them in haiti or housed them in mexico all of that does not rise to the level of bringing the alien to the united states the essential element to convict the defendant of bringing the alien to the united states requires as the th circuit has held in garcia pollin as the d c district  accompaniment some sporting to the united states and i thought of this example last night and perhaps that can illustrate if i were to tell the court i'm going to bring it my grandmother to the doctor this afternoon and the court later found out that what i did was i gave my grandmother cab fare to take herself to the doctor i think everyone would question my representation that i was bringing my grandmother to the doctor everything that preceded my giving her financing her trip to the doctor all of that what precedes it does not suffice if i am not the one bringing her to the doctor no different than the cuban aliens united states why isn't that sufficient under aiding and abetting theory aiding and abetting requires the there be a principle and an aider and abettor of the actual bringing so that the undisputed fact the alien at the mexican border omar luis walked by himself across the border presented himself to c b p for to seek asylum in the united states two of the aliens to the port of entry at miami international airport and so the absence of the physical accompanying meant according to the th circuit according to the d c district court dooms a conviction for  must admit that if these defendants had been charged under the statute penalizing encouraging or inducing an alien to go to the united states the government would have a much stronger case but the government elected to proceed under the bringing to statute which carries higher penalties and because the government chose that statute they had an extra level of proof they needed to meet which on this record they did not meet of theory of the government's under the bring to element likewise the district court's exclusion of the executive branch policies which invite asylum even in a situation involving the cuban adjustment act for aliens who do not have prior authorization of these and they present themselves in a port of entry whether they are invited by an administration or not they they they how does that change the fact that they actually don't have official authorization and they have to go through the process they have to present themselves at the border and there are still ways that they can be declined if  alien has a criminal conviction they still have to be processed and paroled into the country so how do you how do you get around what the media can spout off and sort of the framework for that and how the actual injury process works so cases distinguishable on that basis but more direct answer to your question the cuban adjustment act makes it a foregone conclusion that a cuban who presents himself at a designated port  granted asylum as a matter of executive policy and that is an invitation to cubans to present themselves at the port of entry which is exactly what these cuban aliens did now that the president of the united states has virtually bridled authority to control the decision of who is welcome to come into our country as recently as last two years ago the supreme court in the trump versus hawaii  case wrote this that had twenty five and twenty six quote for more than a century this court has recognized that the admission and exclusion of foreign nationals is a fundamental sovereign attribute exercised by the government political departments largely immune from judicial control to the extent that the executive branch authorizes a particular subset of aliens to seek asylum through some priority basis as has been the practice with cubans up through the wet foot dry foot policy we believe a jury not a judge should have been allowed to make the decision whether these cuban aliens had prior official deals largely with extraterritorial conduct conduct outside the united states involved in bringing someone to the united states and the issue here again with the with the entry in our town we're talking about a player leona's martin who preceded who was training in mexico for months and then proceeded on the land bridge in mexico to come to the united states without waiting for a visa is enough to support the subject of bringing cows whether principle or even under achieving and abetting and if not there are lots of cases hundreds of cases in we clearly don't have that we don't have it since being we don't have transporting nothing like that no physical activity no participation in mr martin's decision to come to the port of entry so all we have martin to the border and coached him on how to get through and they met him on the other side and so if we have her man providing some assistance in that ende you mentioned either mr velazquez or mr martinez so he never had direct communication there was no evidence of that that was a period trial so he never provided them with assistance or logistics or even approach that the the theory was that he talked to another handler somebody who was in the united states who then spoke with those two gentleman that's the st point they don't even have direct communication which is unusual right because how do you even encourage or cause something to but it also is part of the i guess is the part of the evidence for the individual bringing counts as well so i want to give you an opportunity to squarely address that aspect of what the district well look yes there you have the conspiracy but a good this is a subset of offense and even under aiding and abetting theory right there has to be more you have to have actual conduct that  statute was that he actually finance the smuggling that he paid in advance a one hundred thousand dollars to the smuggler and that was what caused the smuggler to go forward you know that was the key that was the key a key factor here the phone call with the with the rangers that assured mr martin that the contract would weeks would still exist if he went through without a visa that may be part of the calculus right was that his contract would be honored but think about the implications of that argument st of all how do you distinguish encouraging or do say the substantively and by the way you know any family member or friend who sorry why isn't it the case though that the i mean getting back to my question before the whole operation to bring him in that mr hernandez agreed to under the way the jury decided the case and you know he agreed to it and they were able to obtain the cooperation of the law to work in a zation to help mr martin get into the united states by requiring mr martin to give a portion of his really high percentage of his contract to the law the we're going to station to get him across the border i mean when we consider that hernandez was involved in that arrangement and created that situation as part of an agreement with them why isn't that i mean that's a very very loose association associations not enough right to ministries thank you so associations insufficient in our case mr hernandez is not a member of the smuggling or that he never got paid by them that was never the theory he was an agent he represented their players and he got an independent fee from the players one dollar you know for their contracts so the fact that most people in and out of the country know who they are and they are players that want to get out and to use they have family and friends that help them get smuggled from cuba and this is one of the issues with the case right of course that  ven smuggling from cuba to let's say mexico is not a crime that could be charged under our statutes a lot of the evidence in that case concerned that but the reality is these were players that were smuggled other countries and the trained into you know showcases free agents to come in and play in the u s largely with you have to look at the specific have i mean there was no evidence than our client identified martin i mean  law nd it held the evidence that a defendant has organized and financed a smuggling venture sufficient to sustain an aiding and abetting conviction under the statute and rd this co language of the statute leaves no doubt that the cuban adjustment act and the wet foot dry foot policy are irrelevant to an alien smuggling prosecution these three domingo's holdings for close most of the defendants argument mr marcos's argument that the events that occurred prior to mr martin's crossing of the border were just association events and one not  association with this phone call to stablish substantive count of bringing your honor i'd start with the elements of aiding and abetting as this court to find them and dimming as which are basically thirty one that the substantive offenses committed by someone to that the defendant committed that act which contributed to and further the offense and three the defendant intended to aid in its commission so even putting aside the the evidence that goes even further back about mr martin that he was smuggled by the lazarus organization to mexico that there were troubles getting his visa to the united states which ended in mr hernandez taking a trip to guatemala to try and get decent for him which again shows the interest that the organization took and in having this individual be able to come to the united states to play baseball you have a situation where they are in monterey where mr martin is in monterey with this handlers the last and martinez he has a contract at that point with the texas rangers for something in excess of fifteen million dollars and the testimony that mr martin himself gave was that they needed to confirm with mark hernandez that he would be able to maintain that contract if he crossed the border illegally without without a visa at that juncture and then there's the additional testimony that mr  overhearing this conversation that occurred at laszlo's house that the testimony differs with regard to whether martin was on the phone call or not but again under the jackson the virginia standard we look at the facts most favorable to the government and what those needs to be made by our hernandez and martinez father and the testimony further establishes that through whatever actions mr hernandez took to check on the validity of the contract he got back to the group and said yeah the contract will be valid if he crosses and that was the triggering event because the group at that point knew that they would get paid again thirty percent and five percent of that fifty million dollars contract is a lot of money so just again turning back to the aiding and abetting elements that certainly is an act which contributed to and further the offense assuming that the whole group would get assuring that the whole group would get paid for it you say in response to the defendant's argument that no one actually committed an act that the substance of offense was not committed by anyone because a substantive offense requires the actual point that i wanted to make the calls for all four of the substantive counts there is an individual who engaged in that physical conveyance with respect to mr martin it was mr martinez who i believe shows  the evidence shows that mr martinez and mr martin took a bus from monterrey to the to the border i believe it was the wave of laredo if i recall and that they crossed in close proximity to each other through can coon to reno some mexico and again the testimony differs in reno's at the boat where whether they took the cab together to the border or not but what the evidence is quite clear about and and then they take a cab together from callan to joost and and they fly to they fly on from from there and it's just to make sure i'm understanding your argument your argument is not that no one has to actually accompany him right your argument is that someone did accompany him it just was not exactly with him that was in my understanding your argument correctly your hon think that that's a correct statement of the the argument i mean again i think that the evidence is that they they were more or less with each other they may not have been with each other at the nd he entered the inspection state station but they were r i think that those those instances share a lot of the same similarity those individuals were physically brought from by that smuggling organization from cuba to haiti at that point where they were they were housed and fed at the expense of the smuggling organization and when it came in time for them to cross to come into the united states they haven't interviewed in the life most favorable to the government shows that mr estra believe that the evidence put in a trial discusses this man named roget who the players say when they were going through the security checkpoints and the immigration checkpoints roget was in control and guided them all the way through onto the basically up to the point of the plane and then at the other in the vat in miami mr estrada and mr hernandez were there to travel with mr  brave for example to chicago to go sign the contract so basically it's no different in my view taking these individuals through the immigration checkpoints through the security checkpoints in the airport and putting them on a direct flight to the united states and meeting them on the other in that functionally is the same as taking them up to the land border watching them cross and then meeting them on the other side because as honor is know in in multiple contacts th amendment primarily the case law makes very clear that the international airports the functional equivalent of the border and i think that that analogy is one that is particular factual scenario i don't think so i think that that's the equivalent of walking an individual up to the border in do able laredo right to the bridge and basically having having them  cross at that point it's the same thing as walking somebody up to the gate in an international airport i mean just to go back to the analogy that was used a little earlier by opposing countdown the going back to the point that i was making i do believe that it doesn't matter here the distinction is not on these particular facts because taking somebody at an international airport directly to departure gate would be the same as walking them up to the bridge in the new wave of laredo rock walking them up to the precipice of the border and watching them cross i think that the analogy  used by my friends on the other side during their argument about basically taking one's mother to the doctor in which you say that you brought her there if you simply paid cab fare for it maybe not but if you traveled with for to the doctor's office and walked into the lower level of the doctor's office and put her on the elevator to the doctor's floor i think at that point you'd say you took her to the doctor and that's basically what consistent with all of the case law your honor and that is true for every one of these counts mr martinez takes mr martine to reynosa from monterey but that in and of itself is not enough right i mean you have to bring the person to the united states but there must be another part to the rules and what are you that other part i don't know that i agree your honor that that is not  used that as an example of things that are surviving sufficiency challenges under lopez and there basically there was communication between the smugglers and the individual on the u s side the individual on the u s side when the person then flew from seattle to new york and then back to return the passport book to the smuggling organization so i think if there the case law indicates if there needs to be something more i do think it's to fill some of these actions in the totality of the circumstance on the back and basically that they you brought the person to the border that person crosses you're there on the other side and basically facilitate d what they came to the united states for at that point and here and every one of these instances there is that physical conveyance to the border  martine and gets him on the other side i mean to to accept the defendants what i think the defendants propose is their rule it's that the statute is not fulfilled in the last the individuals walk across the border you know directly in tandem together and present themselves either at expection together or across the international boundary boundary exactly at the same time and i think that's just plainly not correct because among other things which which goes to the port of entry point that opposing counsel raised in their argument this court in d entry key west and this court held under the the existent version of the statute then that evidence did not support the conviction in that circumstance and that's what congress enacted the current version of the statute amended it to make clear that the scope of liability is expanded to encompass all sorts of situations where you brought somebody who you know or believe is does not have prior official authorization to the united states so if i'm understanding you correctly the test that you are arguing in favor of is this there is the facilitation of bringing the you're saying the test is i'm just well you're trying to figure out what your test your honor i think in the government's view i think physically conveying somebody to the border and then you've taken them to right where they need to be on the border and then with the purpose of that person entering or are coming to the united states and they cross i think in the government's view the elements are  satisfied at that point the additional evidence on the background i think our story on the back end i think is drawing the analogy and seeing if the th circuit's case in seeing for example where again the th circuit basically discusses how this is there are various unique situations that happen in these cases and that can be additional out evidence that's relevant to sustain conviction so i think in the government's view i wouldn't go so far as to say that that's for choir but it's something that you that we certainly have here in this in this particular case mr smith  if that's your test then it seems to me that simply giving someone a ride to the border would be sufficient well your honor if if one is doing it so that person crosses if you're taking the border somebody to the border so that person crosses and that you're doing so knowing that they don't have prior authorization to enter the united states i mean that's not that there could be permutations of that that could fulfill the statute but obviously there's much more here and i think really the right approach  is what is the rule that you or i mean because on the one hand you said you said earlier when you were speaking that you know wouldn't be enough just to bring the person to the border somebody have to actually bring them across if i understood you at the beginning of your argument but now i hear you to be saying it's enough to just bring them right where they need to be and then they cross but then who would be committing the substantive offense i'm a little confused as to what the rule you're advocating for honor so i i mean i go to the elements of the statute any person who knowingly or and reckless disregard of the facts and daily and not receive official authorization brings to or attempt to bring them to the united states so i look to what brings to me and brings to the united states and i think when you physically convey somebody to the border and especially in situations where you physically cross with that individual to the border and that individual crosses you brought and it may be highly fact dependent your honor as the th circuit explained in saying as many of these cases indicate that there a an individual who accompanies takes them to the border they cross and they're met directly on the other side so the government's position is that that is at the core of what that shoot your honor because the only alternative that that would not cover that is if it were actually required that they can to perrine asli walk together up to the inspection station or contemporaneously walk together across the  line i think any version of bring to is is encompassed with that and your honor in the government's views those counts are quite strong but i would also just as a point to bring up here add that this again was a multi object conspiracy so if for whatever reason the court were to find that the evidence were not sufficient was not sufficient to sustain the bringing to count if the evidence was sufficient to sustain any three of the other objects of the conspiracy then that conspiracy conviction but would still stand as well so i would just point that out in the alternative your honour's mr smith this is joe prior i'd like to ask you about think i look to three basic points st as i was explaining before noting before the statute refers to bring to the united states not bring into the united states so by the time you get to the inspection station there where they adjudicate your parole or whatever happens after the fact after after the fact you've already been brought to the united states at that point nd just in the overall statutory expanded the scope of the statute to include to leave no doubt that these instances are included just coming up right now in this business i'm asking about the prior authorization point rather honor i don't think it is a foregone conclusion i think that the the language used in mr stroud as brief as defacto automatic parole and i think just as an initial matter defacto expressly clear that any action which may be later taken with respect to such alien is not prior official authorization and that's what the this court in domingo's equated parole to and when individuals arrive at the cuban migrants arrive at the inspection station when they arrive there they have no right to enter the united states they have to be inspected at that point and if that's i think very different than the type of prior official authorization that congress was concerned with which is things that are actually lawful authorization like visas minute your honors i am happy to answer any further questions you have but i think that the issues also in the government's view are well laid out in our brief so i am also happy to so why isn't there a difference between those two different ways that a person can get in makes a substantive difference for the purposes that you are arguing because the issuance of a visa does not necessarily guarantee an alien entry into the united states they still have to be inspected and c b p can turn away someone who has a visa so the government is conflating the visa with a grant of authority to actually enter the united states that is not indeed the government's own expert mr farris conceded as much that the issuance of a visa does not guarantee admission into the united states sure but i'm talking about th country who is an alien from a country that has the visa waiver program in place was accused of having been brought into the united states surely the defense could offer evidence of the visa waiver program so that the jury could decide whether the defendant committed the crime of bringing that alien into the u s u s no different we submit where a cuban is the alien who is quote brought into are brought to the united states if we accept the government's definition so too should the defendant who allegedly smuggles the cuban directly to a port of entry that defendant should likewise be permitted to explain to the jury that the executive branch has granted to cubans a special different status and the exclusion of that evidence and the directing of the verdict on that we believe constitutes error and infects all of the counts of conviction if i could just have one minute or not even thirty seconds to address the brin to issue having been clear on the jury instruction issue that let me stay with the jury instruction issue even though the demand is case approved the instructions there that is not an answer since the defendants there  not necessarily challenge the conflation of the elements in the chakka last case the government made the same argument that the pattern jury instruction had been approved for decades and still the th circuit reversed for failure of the district court to have made given the jury instructions requested and given the taurus copus case i understand it's an unpublished opinion i have ten seconds that's the case where three judges in this in this court said that neil armstrong to the moon for having launched in there and yet the th circuit and the d c district court reject this theory that by sending someone somewhere that is tantamount to bringing someone somewhere and the prosecutor was trying to use the example that i did offer the court about bringing my mother or grandmother to the doctor if i simply left her at the door of the building and did not take her to the doctor's office i think the court would say it's not enough to take credit for bringing my mother to the doctor if all i do is service the uber driver leaving her at the street level traffic what is the rule that you would propose exactly what the there has to be direct accompany him in there has to be a direct escort into the united states it's not enough for someone to drive an alien to the mexico side of the border and the alien under his own power walks across the border presents himself to the port of entry it's not enough to drive someone to the airport in haiti and even pay for their plane ticket that's  these aliens are already lawfully it made it into the united states by virtually every question is what if you're doing both you're bringing two or you're taking them up there and then you're meeting them on the other side why isn't that if the border particularly not through a designated port of entry it would be flying the plane with an alien and having them land at opa locka airport without without any basically flying them into the united states entry as a practical matter as a practical matter that would be the paradigm case yes your honor although we could certainly envision a case where a pilot loads of aliens flies them into miami international airport but it's certainly the other crimes that i've described that are codified ok thank you very much  the government position in its case there is no distinction at all between encouraging introducing someone to come into the u s and bringing them if a phone call incursion that which is really the differentiating factor on  count two with respect to mr hernandez could be enough to satisfy a bringing of the alien in question wasn't even physically accompanied across the border by anyone that is a problem obviously you're about the government talk about how things happening on the back end that's something that is in miami he wasn't at the border he was in a car waiting for mr martin outside the port of entry after he had been paroled into the country there's none of that conduct that can support the government's theory and i think the questions raised point to the differences between typical smuggling cases where people are brought into the country regularly  not at the port of entry and this case and you know beyond that the questions that this court has raised about prior authorization are important as well because these are cubans who had special status at the time and this is important because this is why domingo is different didn't move as simply said under the cuban adjustment act that because you get paroled after the fact that doesn't provide you with the prior official authorization to enter this case that was very different right here you have mr martin coming on the way enbridge right at the time there was an executive branch policy you know three c d p that if you were cuban and presented yourself and you on the land bridge from mexico and presented himself at the border he could have been turned away and there was a policy in place that allowed cubans who were in the criminal records who were cuban citizens to enter the show that there was an authorization at the checkpoint to enter and so it was lawful so that's