all right good morning everyone welcome to the th circuit and we're pleased to have everyone here today for argument before we begin judge wallace and i would like to extend a very warm welcome to judge morrison england from the eastern district of california judge england welcome and thank you thank you for being here with us this morning for your service to the court thank you we have one case which was dismissed that is di tech financial versus valencia management l l c an order has been entered we have one case that was submitted on the briefs that is how we do a lot more verses missing mission essential personnel that case is submitted we will now  argument in the order of the advance sheets beginning with the st case united states of america versus fernando romero sal gado counsel you may p offense under section five hundred and fifty four and then with regard to count three is felon in possession of the jury instruction as to count one's offense amid section fifty five force essential element of knowledge that the exportation would be contrary to law plainness of this air the government doesn't dispute that that was error only the plainness of the year and whether it was harmless but the plainness of the error is evident for two equally good reasons that holding again in one thousand nine hundred and seventy and meyer with regard to that same importation statute that would normally be enough to show that an error was plain but in two thousand and eight this court looked at that importation statute section five  five and the current statute issue section five hundred and fifty four and held that they are so closely related as to provide a quote classic case for application of the normal rule that two statutes created for similar purpose a minute in the same act and using the same language should have their terms interpreted similarly it's also plain under rivero and rivera came out just after the trial in this case but of course while the city is in rivera reserve the issue well what rivero did is rivera did say in a footnote that the defendant hasn't asked us to determine whether the emission of the knowledge element was error in this case so we're not going to do that but what rivero said in essential reasoning in directly addressing the level of knowledge required was that as long as the defendant or the person knows that unlawful to export that's enough and the court made that statement in rejecting the defendant's argument that a higher level of knowledge was required that the defendant needs to know actually what he was possessing what the items were the court said no as long as you know that whatever you have is unlawful to export you satisfy the statute and so that's binding presidential language and the fact that the court does didn't address whether that omission was error in the context of the rivera case that footnote doesn't diminish from the fact that the court really already has addressed the issue in the very case itself how do you how do you address the argument that even if there was error here that that error is essentially harmless given the evidence showing the knowledge of of the illegal exportation  knew that something was wrong with what he was doing there's nothing that in particular indicates that he thought the exportation was unlawful and it's equally plausible in light of the evidence that what he thought was wrong was his aiding and abetting of the co defendants possession of these bullets in the united states or of salgado his possession of these bullets in the united states or of sending this into mexico without telling mexico but  assume that he knows he's going to do something wrong when he crosses the border because there's all this secrecy and so is it one of those cases this no harm no foul i can see your point you're making but the no harm no foul issue is one that was bothered me and i'd like to get your point on that had this knowledge issue been before the jury it would have been the big hole in the government's case it would have been the issue a trial towards the border meeting that he was going to watch as the codefendant drove these bullets out indicated only that he was concerned with their possession of this stuff in this country as a skill a lawyer might have done that but we've got a case before us where the lawyer was the lawyer and seems me that that's the issue we have to deal with with and it's a very close question how do how do we deal with that let me let me say it a different way there was no evidence that salgado admitted that he knew that the exportation would be unlawful he just never asked and he never said there was no testimony by somebody else that he knew that there was no evidence that it would have been apparent to him saying is there's no specific evidence that he knew this was illegal that the exportation was unlucky exportation is the only where it's equally plausible that he believed based on this evidence that the their possession was unlawful and not the exportation then it's reasonably probable which is the standard on plain air that the jury would have acquitted had it had this what about the what about the fact that he informed agents that he was going to be a spotter at the border and that he had done that in the past and that wouldn't be able to infer from that knowledge of illegality wh functioning as a spotter but for that to aid in the co defendants on lawful possession of these bullets in this country remember that agents asked salgado when they caught up with him it wasn't the wash and that it was at at the point of being the spotter he was a spotter at the border but salgado told agents that he was acting as a spotter because the codefendant gets pulled over at the board that's in his  border and so he's having saw gotta watch the border they're concerned with being caught in this country with the bullets the codefendant made it very apparent to salgado the codefendant didn't want to be anywhere near these bullets the codefendant paid salgado to drive them down from phoenix to the border s inspectors out on inspectors and it's equally plausible that the reason was that they were concerned about the codefendant getting stopped with these bullets in this country during an inspection because he gets searched at the bord emitted the elements of attempt attempt as a separate crime in section fifty five for this court held on bonking proceed as lee bari that when congress uses a common law term like attempt the bar the court held in ramirez martina's an alien smuggling statute that congress did the same thing when it used the word attempt in a statute that also included a mens rea of knowingly and ramirez martina's held that where the same statute includes an attempt crime and a a knowledge mens rea a crime that the statute creates into finds two distinct offenses so attempt was a separate crime here not a means of commission and the  the failure to define attempt for the jury that requires specific intent to hear export contrary to law and that it requires a substantial step in that requires jurors to reach a judgment as to whether the defendant had had had done both of those wasn't harmless beyond a reasonable doubt the government on this claim because it was preserved has to show that it's clear beyond a reasonable doubt that had jurors been instructed as to attempt elements but they still would've convicted salgado and they can't show that for the same reasons we've argued that so gado the evidence shows that it's just as likely salgado was concerned with their possession in this country or the illegality of under mexican law as it was he was concerned with how do you i mean when you take the body of the facts that were presented to the jury driving up to the phoenix area purchasing a large amount of ammunition taking it back being confronted by agents and expressing some amount of nervousness or anxiety and then acknowledging that he had he was going to be a spotter while these at the border and that he had done that before what why is that not grounds by wh h the jury had more than enough evidence to find that there was an attempt well if this were a sufficiency claim i would i would agree that potentially but on this issue the government has to show beyond a reasonable doubt that was harmed the beyond a reasonable doubt juror still would have acquitted and this issue would have been the big hole in the case what was his intent what was his knowledge was it just as to the exportation i'm sorry was it just as to the unlawfulness of their specific intent instruction on that the failure to give this court's model attempt instruction five dollars which requires specific intent and a substantial step and how did the court respond to that well oddly instructions were settled off the record and when they came back on the record the defense counsel said i asked the court to give in and model instruction five three attempt in the court refused and i object and there was no further discussion of his you and so it's  it's the high beyond a reasonable doubt standard here that we're relying on with regard to this claim that the government can't show beyond a reasonable doubt that jurors still would have found a specific intent to export unlawfully and a substantial step towards doing that the court might not think that there is any issue with regard to a substantial step you bought these bullets he drove them all down to between eight and twenty miles north of the border but that was a genuine jury question in this case and jurors have to reach a judgment in an attempt case and agree unanimously as to whether the defendants acts ripened into attempt with a unequivocally show that an attempt will take place if it hadn't been interrupted because of the high bur good morning honors me it please the court my name is angela believers appearing on behalf of the united states in this case i'll st address the two issues that were brought up by the defendant starting with the jury instructions for section five hundred and fifty four a smuggling goods from the united states i would disagree with the defendant the government has not conceded error with regard to this issue but have simply also argued that even if there was any or it certainly wasn't plain this court has not reached that case as as we pointed out in our brief that that in that case the defendant there was no knowledge that the defendant had said there's no evidence of the defendant had any knowledge of importation whatsoever but simply mere possession so that doesn't i don't i i don't believe that does then necessarily come for the knowledge requirement of the unlawful nature i'm sorry i took your brief to be arguing on this point that there was not  i guess i didn't understand it to be arguing that the instruction here were actually correct is that what is your position on that it is our position that the instructions were correct in light of in light of what the law is what the law was at that time but also it is currently but in regard and we did focus our majority of our argument on the plane or standard because in light of the overwhelming evidence of that the defendant did have such knowledge even if this court were to find there even if this court were to reach that issue any any or certainly cannot be plain in light of the fact that this court hasn't reached that issue in light of the in the but in law especially in light of all of the evidence and i would like to if i may address some of that evidence the defense claims that there was no particular evidence with regard to his knowledge of unlawfulness and i would point specifically to his statements as far as being a spotter he stated with regard to that that he had done it several times in the past with the codefendant and specifically stated that he would be a spotter when the defendant crossed over at the port of entry and i think that's a very important distinction to make because we have already had instances where both of these individuals were possessing ammunition they both bought it in broad daylight in a  store in fact they were captured on surveillance footage doing it a law enforcement agent who happen to be in the parking lot saw them do it they took no attempts to conceal their identity this isn't a case where any sort of basis of ness or attempts to  remain undetected by law enforcement had anything to do with mere possession it had solely to do with the instance that they crossed the border solely with regard to the actual moment when the export would be required would occur and  important because again there would be no reason to let the defendant let the codefendant know if there were inspectors in the alpine lanes if he was not concerned about the illegality of smuggling goods i think we have also the fact again that it was reasonable for the jury to infer having had done this before having had kind of these arrangements made with the codefendant about how this would take place that the defense certainly knew that they were doing something wrong we also have the fact intent which was not instructed but so that you can show that there's no doubt there was a specific intense how the instruction air was harmless now where is your evidence that there was specific important in the strongest evidence but we start even still in phoenix with the fact that although both of them bought the the ammo in broad daylight took no attempts to conceal their identity or their their possession of it they then went to a gas station another location where they loaded it all together in one car the car that was going to transport itself then we have the fact that he drove quite if quite a long distance south towards the border and where he was eventually encountered by law enforcement of his girlfriend's house we have the fact that in this case the agent specifically testified in this regard that the defendant became nervous in a vase of specifically when asked about what his plans were for the evidence i'm sorry for the ammunition not with regard to his possession he was very forthcoming about that he readily admitted to the possession and in fact popped his trunk and showed him that that he had it had all twelve thousand rounds but he never he  initially became very evasive about what he was going to do with it it wasn't initially forced coming and that's when the agent observed signs of nervousness and that was in the testimony at trial but then again we get to the fact that he again he said that he has done this before that he has act acted as a spotter for the codefendant on multiple occasions specifically in his statements in quotes he asked me to watch the border before we cross again where were you which part of the rectory o for whatever purpose but were if there was no statement that he was going to be a spotter or had been a spotter previously where would that take this case i would agree that the evidence would not be quite as strong ai but i would still point it when specifically asked about his intentions for the ammunition so the government's case doesn't rest on the theory or the statements about being a spotter alone or the government's position in this regard but certainly those those are  evidence for which the jury would not have reached a different conclusion and and again this is playing their review the defendant has has the burden of showing that the result would have been different and i and it's the government's position he simply has not trial it was not given but i would point out that here we do have harmless error because again there was overwhelming evidence that the defendant had committed completed offenses and specifically as five hundred and fifty four has alternate ways that smuggling goods an offense of smuggling goods can be completed or can be committed here we have the defendant that the defendant bought ammunition intended for exportation he concealed ammunition and attempted for intended for a legal expert to sion he facilitated the transportation of that ammunition and he admitted to all of those things he was witnessed by law enforcement doing all those things he was caught on video surveillance mining it there are receipts confirming it but he admitted to doing every single one of those things so the evidence was overwhelming of these completed offenses even aside putting the attempt aside but then if we look at the attempt as well the attempt to export our son from the united states if the jury was instructed even if that was the only theory that the government was proceeding under and the governor and the drew was instructed that there had to be a substantial step towards the completion of the offense here we have many substantial steps of the buying the concealing the transportation as already mentioned the driving up all the way from phoenix that morning the indictment charged him with attempt what how the how the indictment charges that that defendant attempted to export or send or bought concealed or facilitated the transportation of ammunition so that they are all charged and i'm sorry there is charge in the conjunctive so it's i should've said and rather or but that is how he was charged in the indictment and that is how the jury was instructed but the i would also point out that the government's theory in closing statement was that the defendant guilty because he had committed completed offenses the government didn't focus on the attempt to export but focused on the buying the loading the cars of the concealing the facilitating the transportation by driving south but i would also submit again even if we were to to perhaps look at it through an attempt lens even if the jury was instructed with regard and given the standard instruction with regard to attempt this went beyond mere preparation this the evidence here is is clear  uncontroverted that but for law enforcement showing up at his house and taking the ammunition that that exportation would have occurred because we heard from the defendant he had plans in place for that to occur he had plans in place to take that ammunition to the co defendant's house to turn it over to him and then to go to a specific location they had they had this all planned out a specific location where he would act as the spotter as the defendant crossed the border what was it what was the government's basis for objecting to the attempt instruction given that he had been charged and that was included in the charge it was the it was the government's theory at that that attempt to export is a completed offense of smuggling this is not a case where the defendant was charged with statute can be violated so that that it was the government it's the government's theory at trial and in our in our brief that attempting to export or send is actually completed offense of smuggling because the actual exportation doesn't have to occur to be smuggling the statute is brought in that encompasses all of very large realm of elements all taken to facilitate or affect the unlawful export of of good even if that export doesn't occur so it is the government's position that attempting to export or send is a completed fifty five dollars for offense and that was the reason for for that but your honour's with  regard to any even if any instructor instructional error occurred whether it be to section five hundred and fifty four of we one thing we do concede obviously following the real decision of the supreme court is that the government is required to prove the defendant's knowledge of their or their prohibited status in this case that the defend it was a convicted felon but here again any error was was not plain because the defendant  his statement that was played and as the defense concedes said that he had was a convicted felon that he had served one or two years for his felony when it when initially confronted with the fact that he was convicted felon he conceded it certainly wasn't surprised in that regard so we would submit that the defendant has not met its burden to show any plain error with regard to any of the other instructions and your honors i will just use the remainder of my time unless there's any particular area you would like me to focus on to address the closing arguments i would simply point out that the government's closing while well may not every statement certainly may not be perfect and could have been worded better that the entirety of the closing argument focused on the evidence on the facts and the instructions that the judge gave the jury there was no there was no focus here on on any improper factors in fact in looking at the arguments in its entirety asked the jury to focus on the facts and the instruction and and that was that was what the  arguments came down to and i would point out that the very last statement that the government asked the jury to do was to say i would simply ask you to take a look at the evidence that you received in that case consider the testimony that you heard consider the instructions that the court will give you not what myself or what mr willimon say the law is but the instructions in the law that the court gets gives you and so again specifically instructed the jury to to follow the law and the instructions are not statements of counsel and i charged in the same count it would have to do so beyond a reasonable doubt due to the attempted terror so in analyzing whether or not what the jury would have done the court has to focus on whether the government can show it's clear beyond a reasonable doubt that the jury still would have found a specific intent and not just specific intent to do something unlawful specific intent to export contrary to law that's the key in this statute and a substantial step the court oh and the government highlighted saw that his nervousness when approached by agents and indicated that that the government sees that as evidence that he thought the exportation was unlawful he never said that he exportation the court asked how how these how these were charged count one is duplicitous the charges two crimes the courts case in ramirez martinez makes that clear and makes it plain error and so if the court finds that both of the errors on the knowledge omission in the attempt to mission were harmless it does still need to reach the unanimity issue and there was a genuine possibility here of some jurors convicting on different theories because the government argued one theory one of these two crimes the by transport with knowledge that it was going to be export unlawfully and the defense closing argument focused only on the other only on the attempt theory so some jurors may have convicted on count one by following the government's lead and convicting on the crime of buying and transporting with knowledge that these objects were lawful and some may have reached guilt by rejecting the defendant's theory which was solely on an attempt that there had been no attempt and no not enough evidence that this was going to take place thank you mr maher thank you the case of united states of america versus