what they intended to do with it when they reached puerto rico confession was the only source of numerous inferences the prosecutor urged against martinez in her closing argument and a confession itself powerfully incriminated martinez without reference to any other evidence presented  only explanation of something a trial that truly begged for an explanation like few other things do how to defend its ended up twenty miles from land in a small outward both throwing millions of dollars worth of cocaine into the water and the law does not require the governments to explain in the overall context of how people end up as i think of pain and above although the indictment itself specifies that this is a conspiracy not only between among rosario martinez but also among persons on you know and these persons of no course are only reference as well it was arias fashion but what's the government decides that it wants to try to introduce this confession as a joint trial and it's reckoned with the fact that when you take two people who are accused of doing the exact same thing and being in a partnership throughout the criminal action then you get a full explanation and can textual eyes the role of wine and remain utterly silent on the role of the other what you're doing is it's really straining the capacity of a jury to put to its mind th reality which is that back confession explains the role of you know one of the things which i find from this case your is the when the boat was see as i understand  the the surveillance never left the boat there was testimony in the case that they saw both individuals in the boat throwing bundles o cocaine which obviously it has that there was a conspiracy a conspiracy and the functioning of a conspiracy while not necessarily an element of the crime was a very significant part of the government's proof of its overall case and the contextualizing it to explain what was growing or not they were half way that united yes so there are pointed towards it i'm not saying the evidence is insufficient but in terms of the importance that this confession weighed in the case it said it explained provided the only explanation of what was really going on here and what it did was basically take the case out of here's you guys you want some cocaine and we're taking it over to puerto rico so they can make a bunch of money from it and into these are two guys who are participating in a larger cartels have operation the only evidence of that larger cartels have of operation existed with regard to defend it rosario there is nothing in there in the record at all with regard to defend it martinez and that very important question i say very important because that's exactly what the prosecutor used in her closing argument to basically try to wrap the case up for the jury and she specifically said i told you at the beginning of this case look for the agreement and then she says well how do we know that martinez agreed to do this resign they were going to puerto rico to deliver the cocaine to the folks who are waiting there to take it from them well the only folks who were waiting to take it from them were described in rosario's confession so you know we really have there's there's really two issues presented one is the impact of the precedent yes so could you just help me understand how you understand what that means when it's inescapable because obviously they're the present suggests that when an inference is the thing that ties to the confession there is no proven problem right so we've also said that in a case in which the redaction takes the form of just withdrawing the name but seeing that there's a second person there who everybody way that's faithful to the notion that bruton is not violated when the thing that connects you to the confession is an inference even you know and it's ones that would be sufficient to support a conviction sure so i  certain other say but what will be the powerful inference that he shared that purpose apart from the surveillance that shows him throwing the cocaine out of the book well i think you know to to be on the boat with the person with  trial is that there is no way for the jury to separate the story of how rosario came to be doing what he's doing without also attaching that's right martinez i mean you can simply say well i can invent a way th stuck on certain points but you've got sufficient evidence and i can test that but the harmlessness question is what did this have an impact on the trial it's a constitutional right and when you're basically got a codefendant non testifying in fashion that is really providing the only interpret deviation provides very limited expert testimony it's really just about pricing he talks about the structure of the roles that the small boats play in the drug moving business so that really is the sole source of what she's arguing and her proceeding well it's only it's clear to them in this in that it does in the sense that there's never been a ruling that they don't and there wasn't a ruling here i do agree with you it's a sort of a punky question because it's proved to the court preliminarily by the preponderance standard but i don't there well i think it's pretty clear that a conspiracy is over at the time they're being interdicted this one answers that question that there's still the question so right that's the question about the conspirator but obviously if you have you know kind of a double room issue or a double  to so i think what happens in this case is that the district court confuses the issue of jurisdiction under the m p o the district court takes an absolute position going to have many trials every one of these is what they are right but that's the question of statutory interpretation and on the m de lay itself not a question international law and the cases that are cited those are cases where basically there's a claim that if there was a violation of international law that the living in office it was an identified and it was one asked of the timing of it but you can see the certification is conclusive of the question of whether the company the country that was asked as to whether it was their vessel their answer as represented in the certification the certification is conclusive of that question is not it's it's because it comes back either misspelled words slightly different than what appeared on the transom then you can have a you're entitled to a separate trial on what the it could also be there were there were two different vessels like the queen elizabeth and the queen mary and they have to clean elizabeth but they're asking for permission to seize the queen mary we don't know if they so that extent the don't know in this case because the judge precluded that inquiry as to what was asked by the coast guard why can't the judge based on the certification one inference if it's sufficient on the five preponderance of the evidence that what was asked of them was the boat in question well two things about that one is he didn't do that and the second thing is there's evidence in the record from the dominican republic that the it you have to be saying that we should say the right inference would be that because the response came back with a slightly different name they must have asked about the wrong vote rather that they asked about the right vote and this was the response well i quote jurisdictional this was satisfied there was no objection at that point that's correct but under the rule twelve an objection as to jurisdiction can be made at any time and that would be then depending on the finding that this is actually jurisdictional in the strong sense that like an jurisdiction over the vessel and of people in the vessel to talk with him so you saying that the certificate that there's a relevant question in the government has the burden by preponderance of establishing the relevance of th certificate to this case and they can do that either the judge potentially could draw the inference based on the four corners of the certificate or but didn't do that in this case iraq or there needs to be evidence that shows that the question asked was the boat in question in the case sense that therefore the certificate is relevant and then becomes conclusive evidence right i think in this case the judge should have allowed questioning not  basically saying it doesn't really the judge basically says it just doesn't matter there's no standing if there it just doesn't matter because everything it's clear it's plain sight there were there was cocaine on the boat off the boat and of bales they were on their way to puerto rico good morning your honour's and may it please the court dave lieberman for it united states the government is asking this court to affirm the defendant's conspiracy convictions under both the m d o way and separately title twenty one it would be easiest to begin something that the core problem the government tendered the secretary certification to the district court in a pre trial motion no objection was watched hearsay or any will and the anything else and the district court document sixty eight fines duras stiction under the statute and then also except the secretary's factual representations in that determination in his far as the government's view is at least on the facts all dispute should have ended there it is then that trial where the defendants repeatedly in their cross examination of government witnesses try to ask questions or introduce facts that relate to the secretary certification and the government's view that's not the right form all of that should have been raised trial so the district court did entertain legal arguments pertaining to the validity of a secretary sort of occasion the rule twenty nine motion but in the government's view the factual record was close do you make that argument though some of you we made it very clearly with respect to mr martinez we sort of plain error that his objection on the fourth day of trial was not sufficient to put this in play but i think it's i will then the merits and i'll start with mr martinez and then i'll go to mr rezai mr martinez is challenging the slice of the certification the of somebody on this boat asserted dominican registry and in the government's view that is a falls under the public records exception eight zero three eight we did not make the argument that the federal rules of evidence didn't not apply the procedure proceeding on the premise that they do the that state state and falls under this exception because it is the statement of a public agency setting forth a routine activity of that agency th coast guard polices the waters they interact in intercept with boats as part of that process they collect registry information that is a routine activity you know mr schumer is quite right that this container that the coast  between the jurisdictional question here and the ordinary booking question of where you're from because where you're from is not going to determine whether you can be found guilty but the question of where your boat is from might i agree it has to say i agree it has s that respect so so why isn't that significance that matters for purposes of whether we should apply the hearsay exception so the government's view it is when we're looking at routine activities versus law enforcement observations the law enforcement operations relate to facts or better ultimately will be addressed at trial whereas this is not what this will be addressed in a preliminary hearing that will determine whether you can go to trial we're not going to do to where the defendant is from in most cases criminal cases ever because we don't care has nothing to do with whether they can be held criminally liable even accepting that or that distinction there are other points that tipped the scales in favor of recognizing this as a statement of a public agency it's still mechanical question it doesn't involve a type of perception by seas that you normally think of in a law enforcement setting that the officer is acting as a scribe and finally and most importantly this was the question athan dawdle guard officer here on the ground i guess on the boat have any incentive to do anything other than accurately record the information and the answers  carry that government as to whether they that's true and whether they really wish whatever jurisdiction they might have to the united states as the interdicting story yes right directly to the to the dominican republic when the answer comes back with a different name this case somewhat different that the government he says as a further obligation which is the government's view is that congress took that question out of this sort of adversarial let's have witnesses from the coast guard and maybe a witness from the dominican republic to say what were in fact the consultations here where they sufficient where they deficient because there was a typo where was the government just negligent congress took that out of that setting and put it in the hands of the secretary and back and forth between the dominican republic and the coast guard and the governor and they government's view is that if there's any deficiency in that process that's the that's an injury to the dominican republic from the dominican republic to show some confusion or disconnect in the consultation process com into court and challenge the secretary's certification to the extent that take ownership or jurisdiction over the boat that is a discussion or decision to be had between the governments are correct but let me take the counterfactual let's assume that finds based on the evidence presented that the coast guard complied with your diligence at the time of the interdiction and in declaring via the vessel to be without nationality based on the information provided by the dominican republic and the defendants in so i think that the courts doing is saying all right even if it's not conclusive i'm not look at everything that's been assembled before me and so it's set for certification being the photos of the boat of the surveillance of the interdiction and the boarding the coast guard commanders testimony that say it is the district court could make that finding more likely than not that this vessel was stateless and there's no clear error no that's that's relevant that inquiry only if they've the way republic responds is relevant only if someone on the boat first claimed it to be a dominican that's correct your honor and you can see that the certification is not conclusive as to whether that statement was made yes that correct it only really you can only what happened if we were to disagree with you on the here's the exception you then can see there's no jurisdiction we have a harmless i think we have a fairly i think have a fairly convincing a harmless error argument in our brief because so we have a homemade boat found in the narrow strait of water between the dominican republic and puerto rico and we also know from history as ours confession that that boat launched from front we know from the secretary certification that the coast guard contacted the dominican republic after the interdiction and then we also have this this is the fact that the district mr rosario mr martinez had never claimed otherwise even though it would have been their incentive to say no that we claim guatemala or we claim costa rica to try to derail this proceeding so even if you take out that one slice of the admitted mr sanitise confession at trial it doesn't raise a head on broom issue because it did not directly implicate mr martinez it doesn't fall under gray because it didn't contain the obvious indicator of redaction so or into this third category and so well it implicated mr martinez that implicated me in the broader conspiracy the jury knew why i was on the boat thanks to mr problem just because the co defendants confession relates to the overarching conspiracy doesn't trigger brewton so long as the government is not using the confession directly to throw then the objecting defendant into that if i understood counsel correctly the conspirators the other people wouldn't allow people on the boat who weren't part of the conspiracy now that is that an accurate rendition of what yes ok that comes only from the confession correct i disagree i think the government the prosecutor could fairly urge that reading of the evidence and you keep in mind but before she did that she just told the jury traffickers in general and you can certainly infer that by virtue of the b sixty six you can see that if she were to say look the confession says you know from the confession that the other conspirators would not let someone concluding that the confession was never used to make that point yes yes if the government cannot at closing say look at what it was a confession entered into evidence how does the confession come in the confession comes in through the test of well there's the pretrial of the year and then the dealing in the confession is there a statement in the confession that the jury would have heard that the other conspirators would not have let someone on the boat if they weren't part of a conspiracy and there's not you know i think prosecutor closed by saying martinez was put on that boat for a reason testimony that there's always two operators on the boat and again that's consistent with the fact that the coast guard spotted him tossing the cocaine so  playing in light of the fact that the prosecutor stated at the beginning don't use against don't use this against mr martinez isn't flagrant the district court instructed the jury on that fact and we think we have overwhelming evidence of guilt and circling back in my remaining twenty seconds to the proven claim even if this was somehow error that mission to sanitize confession somehow or this is a question i think just all started out with these are two men on the boat heading towards puerto rico three miles from shore throwing millions of dollars of cain into the ocean clear evidence of possession quantity is clear evidence of intent and from these facts alone any any jury would have put these two in a conspir