on the witness stand the government indicated for the first time that it was going to use the two thousand and thirteen statement of his attorney the same attorney representing him at trial as his own statement and as substantive evidence against him the government's use of this unnoticed undisclosed statement compromise mr amend his bail sixth amendment right to counsel the district court in turn allow the statement to come in concluding it didn't impair vigorous and litigious legitimate advocacy on mr mendoza pays the half and didn't impact the ability of the defense to prepare the case and represent the defendant because the district court was wrong this court should vacate mr mendoza fails conviction in united states versus  john the seventh circuit made clear that the unique nature of the attorney client relationship demands that a trial court exercise caution in admitting statements or the letter the product of that relationship the court cautioned the government that it should only offer this sort of evidence in rare cases and when absolutely necessary to avoid impairing the attorney client relationship showing full disclosure by a defendant to his lawyer in the turn defense counsel from the counsel even assuming that it w there was ever to admit the attorney's statement the projects your honor the prejudice your think should be analysing and i'll analyze under a harmless beyond a reasonable doubt standard because it implicated his sixth amendment rights under that principal defense was i was coming to the i didn't have the intent to to enter the united states free from restraint because i really wanted was to go to jail and get a meal  first of all and it's just a little bit of a facetious question why are you here he got his wish well your honor he i'm here because he went to trial and he had a fundamental and he's now he's now he's now changed his mind and he doesn't want to sit in jail and united states but he told everybody that was his defense the defense was i want to go to jail and therefore we can't go to jail but now the years in jail he doesn't want to be in jail i have to say i'm a little confused about the motives here well i think the defense the reason i'm here is because under this under the fourth fifth and sixth amendment and the fifth and sixth he's entitled to a fair trial he didn't get that here and so under this court's case law if if this court finds that that didn't entitle him to a fair trial then he g the the prince his principal claim was i didn't i didn't intend to come to the united states in order to remain in the united states correct and the two thousand and thirteen statement was one that suggested that on a previous entry into the united states that he was going to be headed to san francisco where he had family correct ok so but most of the but i don't see that that statement was really repeated very much in this and in this trial it did not it was not sort  point of the government's case i would dispute that characterization because the only disputed element as your honor pointed out was his intent and the government's theory of the case was that his reason for going to the m c c was just a backup plan and the only other reason the jury heard for why he was coming into the united states that would make going to the m c c a backup plan was that he had family in san francisco that he was going to see you know he could have he could have decided that he was coming into the united states to go and go and get work that there are a lot of other reasons that people come to the if he was going to if you was trying to enter the united states in order to in order to submit to the authorities so that he get a free meal in jail why did he choose to cross at a place which is very very isolated in which he attempted to elude the border patrol officials well he chose to the evidence showed one interpretation was that he chose to enter at a place that was heavily surveilled by border patrol agents so they were border patrol agents on foot and vehicle and operating telescopes and so he chose that point one into one inference is that he chose that location because he knew that he would get readily caught and consistent with that interpretation he chose to enter on the night of a full moon where he would be more readily visible he was apprehended just a short time after crossing the border testimony that was that he wasn't hiding he was sitting in an open field there was no vegetation around him so that was a credibility determination that the jury was required to make and the statement went directly toward undercutting his credibility help me help you with this he testify  and he testified as to his intent for act and the fact that he had family in san francisco was also before the jury the jury the jury heard that he had family in san francisco what the significance of a two thousand and thirteen statement was it was an admission by his attorney that he came in to see his family absent that statement the jury did i understand your argument i just want to make sure that all the facts were also before the jury in the argument was made to the jury has to his intent right and the the prosecution made its argument as well you mentioned you said this is a sixth amendment issue that's what you're focusing on now six memmott so it seems to me if i understand this correctly if you have two six amendment arguments one is a confrontation cause for argument the other is a conflict free council argument but it doesn't seem doesn't appear to me that the  the confrontation issue is was objected to a trial was it preserved i believe it was preserved because defense counsel below informed the court of her sixth amendment concerns she didn't specifically cite the confrontation so to the extent that this court finds that that objection was insufficient to preserve the error i still think this court can review the error to novo under that exception for pure questions of law because the only question left for this court to decide is whether an attorney's prior government used it as essentially a functional equivalent of testimony it was in court statement it was given by an attorney who was under an obligation an ethical duty to make statements that were true the purpose of the statement was to establish to approve a prior fact which was the circumstances that were related to mr mendez bale's crime and both the second circuit and the fifth circuit have held that statements that were made at a change of pleas hearing or testimonial and this was a change of pleas hearing combined with a sentencing also involved a situation where the defendant said he was coming in to go into protective custody and the question is whether there was instructional error and whether that error was harmless beyond a reasonable doubt and a virtually identical set of circumstances where there was evidence for the prosecution but there was also countervailing evidence for the defense including the fact that the defender entered not a court of entry that the defendant perhaps was concealing himself there were several pro guilt inferences but this court still held that the error there please the court column and gone for the united states mr mendez received a fair trial the united states is now asking this court to affirm his conviction and his sentence and judge by be you are correct t beyond regardless of any of that in cheery standard or the standard of review in terms of the harmlessness question it is it is clear beyond any doubt that the evidence was so overwhelming that any error here would not be prejudicial to mr mendez his claim his sole defense at trial was that he entered the united states to enter custody that was his sole purpose his actions contradicted that in a very forceful to make up the story on the stand and his actions the day that he crossed the border show that he made great efforts to not enter custody he started in tijuana directly on the border line at the t canal and there was testimony that if he wanted to go into custody if he wanted to go into to the mc c there in downtown san diego he could have simply walked right across the want to canal into the waiting arms of the border patrol what they have just turned around and him back there's there was no no evidence of that the there was a patrol agent who said that he had arrested twenty to thirty aliens in now but in our own way to rosol if you had somebody who was who was picked up just a couple of miles from the from the port of entry it was between a double fence and basically the border patrol came up and said you know get back cross the fence yeah i think there is there is evidence that this is a practice by the border patrol that does happen absolutely that happens  case because he's been in the criminal justice system for many years he easy frequent illegal re entrant and so given those facts and that would have that would have shown up for the border patrol this is sort of  record discussion but from my perspective he had great exposure to the criminal justice system yet a number of thirteen twenty six convictions a number of thirteen twenty five convictions this is not someone that that necessarily would have been would have it drops from seven hundred feet down to seven to ten feet he then was asked if you want to if you want to get into custody he wasn't going to get over a seventeen foot fence that's true i think that fact probably cuts cuts both ways but it it is a it is a location that is frequently crossed by by illegal aliens because judge schroeder asked a stupid question about about what was known about his family so independent of the two thousand and thirteen statement was it known that mr mendez had family in the united states yes it was that and that and now we have it as was the family was where that the family i believe that the family resided in san francisco and that he had not seen them for for some amount of time he  clarified during his redirect that he did have family in the united states that he had not seen them for a long time so that's part of the harmless family was an ex wife or just an ex girlfriend his common common law wife is  that's part of the harm it's analogous to is that the evidence that was elicited by virtue of the united states is cross examination on the attorney's prior statement the bulk of that ivins if not all of it was before the jury already independent of that cross circumstances the other reason that the that there's really no harm here and that there was no surprise to to the defense here this is the statement that was that mr mendez was cross examined  on was given just fifteen months fifteen months to the day before trial started he stood before a different court and used his family there really as as a sword to to bolster his sentencing argument to the court and he honor his attorney said to have said to the court mr mendez did his motivation for returning was to reunite with his family and three children who live in san francisco that was just fifteen months before then fast forward fifteen months later to trial and there he was standing before a federal jury telling them that he had no suggesting that visiting his family was not in motivation for entering the country at the district court ch judge moscowitz said it would be unfair for the defendant to tell one thing to a sensing judge fifteen months before and then tell something entirely different to to the jury fifteen months later without them knowing about that previous previous statement now with regards to conflict whether there was a conflict mendez has to show that there was an actual conflict of interest and that that conflict adversely affected his lawyers performance and he doesn't point to any evidence to show that his trial attorney mr kimball was forced at any point between helping herself and helping mendez number one there's no there's no showing that that the statement twenty thirteen statement ms kimball's representation of the court was somehow false or somehow could be impeached by putting her on the stand and asking her you know or did did you or you know were you not quite accurate in your representations there was there is no showing that there was any way to impeach that  testimony and this is important mendez was already on the stand he was in better position than the attorney to tell the jury to tell the court whether the two thousand and thirteen statement was somehow inaccurate misleading or false and it simply would have been this mr mendez your attorney statement in twenty thirteen was that inaccurate in any way and he could have said yes it was you know it what i did i didn't really come to see my family he could have done that and this  kimball the attorney that her name was never revealed so by asking that question it wouldn't somehow put her between the the jury box and the defendant and sort of put her in the in the crosshairs she could have asked those questions of mr mendez he could have clarified if there was reason to clarify that statement but i think on this record there simply was and was and was no reason to clarify then so there was no good faith basis for miss compelled to to try to impeach her own testimony criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district or in the crime shall have been committed which district shall have been previously ascertained by law and to be informed of the nature and cause of the accusation to be confronted with witnesses against him to have compulsory process for eighteen witnesses in his favor and to have the assistance of counsel for his defense there's a lot that's packed into the sixth amendment there and for them to say that just by virtue of saying the magic word sixth amendment that somehow put the court on notice that there was a confrontation clause issue i think it is not quite a fair representation of the record and and there is no precedent for the claim that this was a testimonial statement testimonial  within the context of the recent cases post crawford shows very clearly the primary purpose of that statement has to be to further a government investigation and here the statement was designed to offer mendez sentencing position to the court there's no precedent to find that it's testimonial with respect to the sentencing is it your understanding that in order to accept the appellant's argument we would have to regarding the harm mr macdonald mentioned that mr mendez bail was already on the stand and therefore he was in the best position to refute the prior two thousand and thirteen statement i think that misses the harm that was caused in this case by the lack of notice miss temple didn't have the opportunity to consult with mr mendez bail about that statement and so given her duty to present the best front for him at that point it would have been extremely risky situation for her to simply ask him without prior statement true or false without having the clear that he's telling that he's telling one district judge one thing i'm testifying in another court is to something different perhaps your honor and i'm not disputing that this statement should maybe should not have could have come in in different circumstances i think what creates the prejudice in this case was that there was no prior notice of the circumstances in this case how ms campbell knowing that she was a potential witness she could have had that conversation with mr menders bail before trial they could have potentially waived any conflict of interest or he could have said you know what i want you to appear for me on the stand and i'm going to get new counsel he could have said maybe i'm going to take a plea because this evidence is so damning i'm not going to go to trial or i'm going to go to trial and not take the stand or present a different defense but all of those possibilities were precluded because of the way this evidence came about surprise me a trial