me yeah there's a just so you're aware of it there is do we electronically record the the discussion in lay court room so that we have a record but if you're not speaking right into that microphone sometimes it case throughout the trial the government argued that money was the motive in this marriage fraud case and that it was an essential component of the crimes charged but the appellant's were precluded from presenting any evidence about the financial state of their business to show that a money motive was not reasonable in light of the legal and legitimate flow of money and business into their company which if permitted would have raised a reasonable doubt as to their intent the government and the district court misconstrued the defense evidence as a good conduct or propensity evidence prohibited by the rules of evidence when in fact it was relevant evidence permitted by rule for a one for the purpose everybody in the government's argument of a money motive it was also offered to show a lack of knowledge an opportunity because evidence of the appellant's legitimate thriving business would make it less likely that they would have the time or the opportunity to know the details of criminal activity involving a handful of clients in the middle of providing a wide variety of legal immigration services for so many others the government highlighted the time and care of the appellant's took to prepare their clients for interviews with immigration suggesting that this showed  intent to defraud but the appellant's were denied the opportunity to present a witness ms cabrera who could explain the innocent non criminal reason and purpose for the interview preparation and what was the the timing of with the defendants in relationship to the charge conduct in the indictment you knew the diplo sometime was that you knew the defendants before the time period of the of the alleged conspiracy your honor but she also knew them during that time period she was being presented as an example of other other clients who also given the same information to ms marilyn this mr malone if i understand it right she was offered by the defense both as a substantive witness and as a character witness right it's correct your honor and the character testimony went to honesty veracity and law abiding this that's correct your honor but she was barred from testifying both substantively and as a character witness correct your honor and the proffer at the time that the defense made was the relevance of her testimony was that it tended to show that ms moran had received feedback from clients who were legitimately married and legitimately together and that they had had difficulties telling miss merrow and mr mallette how difficult these interviews were with immigration which would explain why they were going into such went to such trouble to help prepare let me ask you a question just help me with the record here but what was the rationale offered if any for barring her from testifying as a character witness was any offered did the court say anything about why she would not have been permitted to testify about veracity and law abiding this no your honor the at that point the district court felt that the information was cumulative there would already been some evidence proof presented with respect to character and the district court found that it was cumulative but she was prevented from testifying in but the government was permitted to give the jury the impression that t t and t this company was a sham company dealing only in sham marriages and that there was no source of legitimate income for the company but the defendants were not permitted to rebut or defend against this impression and because that evidence was offered for a relevant non propensity purpose it should have been permitted thanks very much and you've reserved only two minutes plus the balance of the time you've got for abo silence under the case of united states versus kean correctly cited by the government the question this court has to ask is if we assume that the district court made an error in calculating the guidelines is the set and still substantively reasonable if we assume that the district court made an error in calculating the guidelines the guidelines would have been twenty one let me ask you let me just ask you sort of a threshold question in that regard and i assume for mrs a by question that your right and the district court made a mistake in the calculations the district court said that it would have imposed precisely the same sentence were godless of that issue and how those calculations were  were completed that the result would have been the same how do you handle that how do you get over that even assuming you're right doesn't matter if you're on or under you know the sentence would have been the same and if the court was otherwise lawfully needed to do exactly what it did do where was the fatal or reversible error your honor that is the issue that was addressed by the court in united states versus king and what that decision tells us is that what we have to do is evaluate the sentence and determine whether or not it was substantively reasonable so if we assume that the calculations were fact wrong the political guidelines would have been twenty one to twenty seven months the sentence that was imposed was forty eight months the reasons why the what was the statutory exposure your honor was great we had there were four convictions of a subset of counts i believe each of those carried a five year max there was a conspiracy a conviction on a conspiracy count which carried and i may be wrong about the subset of counts but the exposure was a lot greater than the forty eight months i think is where we're going with the question so let me answer it that way the reasons given by the district court for the upward variance was that mr millet was making a mockery of the people who follow the rules the fraudulent applications that he was part of filling out burden an already overburdened system and she wanted the sense to speak loudly and clearly to the community the such abuses would not be tolerated i respectfully suggest that the actions of the district court  e those reasons the stated reasons none of the aliens in this case received any jail time and they were the ones that actually cause the applications to be filed into the overburdened system the cubans received some jail time all however were within the guidelines yet without the cubans none of those applications would have been possible let alone filed all of the aliens with the help of the cubans could be said to be the ones who were making a mockery of the people that follow the rules plus your honor the government did make a recommendation that  sentence should be within the guidelines now considering i'm running out of time very quickly i like to address the issue regarding comment on silence obviously we have to deal with the precedent that this court  has set in united states were versus rivera however rivera has been disapproved of by this by or at least there is some disapproval in that it's been described as misguided by judge gordon and in all let me ask you how i handle it even assuming argue window that i would agree with you i'm still bound by that pronouncement by the circuit unless it was either overturned in or the supreme court of the united states had overruled it or its reasoning had been so completely gutted as to abrogate the whole framework and i'm not sure you can say any of those things about rivera your honor that is correct however i can say that rivera is a bit different than the case here rivera dealt with actual silence as did will come this case we have an actual assertion of by mr mallette of his right to remain silent and i do not believe that this court has ever address the significance of that  analysis and of and their argument or their opinion is based upon the premise that there was an actual assertion of the right to remain silent and i am over the time your hon an assistant united states attorney and i represent the united states in this matter also present counsel table is assistant united states attorney and mcnamara who is one of the trial attorneys in this case if i could i would like to start with the fencing issue to clear up just a couple of unintentional misstatements the statutory maximum for each of the substantive counts was actually one hundred twenty months and the conspiracy was as noted sixteen months so when looking at the substantive reasonable notice it is one of the factors that the court could certainly consider that the forty eight month sentence was far below the statutory maximum even for the conspiracy count in addition the sentencing transcript shows that the district court judge exercised extreme care and thoroughness in going through the thirty five fifty three eight factors and because as counsel noted in this court noted under keying this court need not consider the appropriateness of the guideline calculation the substantive reasonableness is more than supported by the careful consideration of the thirty five fifty three eight factors articulated by the district court as to the argument as the comment on the right to silence as the government agrees with  that that is controlled by this court one nine hundred ninety one decision and united states versus ribera as judge marcus you noted the united states position is that texas first salinas vs texas in no way  overruled the decision nor did it abrogate it to the point where it would be reconsidered by this court therefore in light of the court's binding precedent the government would ask that that would be affirmed on that point course in this case the comment is statements in the other cases your honor i see any distinction in the actual words he used well in going and looking at it under salinas assuming for purposes of your question that ribeiro does not control and i agree with you rivera was a str silence case it wasn't a situation where the defendant revere invoked in this case and that is a point that is valid but because rivera lived and made the blanket statement of linking it to the miranda rights the government would still even though that's a different believes that in this situation it was still control going to the question though of whether or not that statement  different we do agree that in this situation it is a distinction but let's suppose the witness had said in a non custodial setting no obligation to give miranda warnings law enforcement officer walks up and says what do you have to say marcus marcus says i have nothing to say to you are you invoke my privilege against self incrimination found in the fifth amendment could the agent then testify in a court of law later that the witness now defendant said i have nothing to say to you  no your honor as i understand your hypothetical that is a clear statement by a defendant invoking his right to counsel in the united states position is if you have the first prong met and there is a statement that a clear indication of saying for example different then mr miller said of i don't want to answer any questions i mean clearly if he said i invoke my right to my fifth amendment privilege then in the united states few if there is a clear unambiguous invocation of the right to counsel it would not be that wouldn't matter that it was a non custodial it wouldn't matter that miranda was not given and there was no obligation to give position your honor that it would looking at the cases and acknowledging that that's an extension of griffin versus california that this court has never said and that the court the supreme court in salinas versus t specifically did not reach i understand but your position the position of the united states of america is that if a witness then defendant has wetness in noncustodial setting just uses the words i incrimination on the fifth amendment that cannot be used in a court of law against them yes your honor ok so tell me if that be the case what's the difference from john q citizen who says i have nothing to say to you officer about you want to question me about the allegations of marriage fraud i have nothing to say about that honor if i could taking up back to the facts in this case one of the problems with the record in this case it is extremely brief dated if you look at the testimony of agent well boy when she was on the stand the  question was phrased you know in terms of what if anything first did ms morose say and then afterwards went to molest but if you look at agent with boys testimony there isn't actually even a question there instead what you have is her testimony that she handed the search warrant to my left and that she  unsolicited blurted out the words i have nothing to say i mean what how does it happen that the words come out was there an interrogation what what triggers it in this case we don't know specifically what triggered it what we have as i said when you look at the testimony of the agent it's no question is reflected at all it's that when she was there she was serving the search warrant and she ad d of the allegations against him and monroe and the business regarding marriage fraud and he said i have nothing to say to that that's all we have on the record then when you have the objection and later when they're arguing the motion for mistrial the prosecutor informed the judge as part of the argument that that statement by mallette was made in response to a very basic question we don't know what the question was and it's one of the reasons why this case i believe is a particularly poor vehicle for this court to tread into issues of first impression especially in light of rivero but also because this court if you analogize to the case law in the miranda setting where which the court talked about in salinas where you have you look at whether or not it's an ambiguous invocation of the right to silence we don't have the actual question asked if any we don't have everything really leading up in the contest and those that this court has noted in the supreme court just has suggested that that can be important nuances in the very question itself or what preceded to have the core make that very far so what you're saying to us is even assuming argue window that the fifth amendment privilege was violated you say the era's home was correct your honor tell me why your honor in this case i believe that it's clear that it's harmless even applying of course the constitutional beyond a reasonable doubt standard you had multiple witnesses who testified for the inside view here you had gomez you had pereira you had your mesa not only did they testify and directly link case it was basically the same story they would go they had to pay only in cash it had to be you know no talking over the telephone and except in discreet code words that they should never contact anyone except and if she wasn't there milat they testified that all of them were railroaded most of the talking mallette was always there he was there at every key time he was there when money was handed over in cash he was there giving instructions he was the one who notarized the marriage certificates he was the one who actually filled out signed and filed the applications for adjustment which are the crux of this case he's the one who officiated at  marriages he in morocco insisted that they have nice little photos taken of him purporting to sign the marriage certificate even though in each case it had been executed days or weeks before in particular if you look at government exhibit three in this case there were three undercover recorded conversations with gomez with the other defendants or with both defendants and in most of the time you have a rare zero talking all the lead is present in the third one government exhibit three you have statement specifically by mallette talking about the fact that you know very very angry that gomez has gone to a lawyer and revealed the scheme he stops in a real change from the ordinary course where he let her talk and play the supportive role he takes over and she acknowledges you are the one you know the law and lets him speak and his statements in government exhibit three completely all three government exhibits one two and three completely corroborate the testimony of gomez that cooperation along with the detailed consistent related testimony of all of the defendant is more than sufficient to show this is harmless beyond a reasonable doubt i want to turn to the other issue raised ramos farnsworth yes your honor i think it's very important again to look at the context this initially rose in a situation of a pretrial motion in limine by the government and then you had a pretrial hearing where it was discussed in the court made initial findings but very careful wanted to read the law before entering her order and even then the court made it very clear and i think importantly for one thing she noted that there was a stitch she made a distinction between for example if during the trial they wanted to put the evidence in that there wasn't an opportunity for her to commit the crime but that was very different than looking at the motive intent aspect but i'd like to also talk about your honor ask a question regarding cabrera and i believe th part of that is a stockier transcript six seventeen but when they were talking about it the judge absolutely said kima dave but that wasn't really the only reason i think when you read the full comments of the district court judge part of it was she had taken such care and you've had such careful litigation all the way through from the motion in limine e at various times when evidence would come in and then begin as a good as the defense presented the case and what happened here was was called and began to testify and the initial stage questions and the testimony that were listed was all about her business relationship with the defendant and so when the objection was made and they were tardy to talk the district court judge noted you know they could have very carefully if this had been presented to her she would have had the opportunity to help fashion the evidence in such a way that the character evidence could be brought in without what would be cumulative about comparison i know the defendant's reputation in the community for honesty and veracity the reputation was the defendant was in the honest and law abiding citizen and i also know the defendant personally and i have a personal opinion about the defendant's reputation for honesty and veracity and it's very high there's nothing cumulative about that is there well it would have been cumulative in the sense the two other witnesses testified that they knew her socially they knew her reputation for in the community and that she was on to other character witnesses testified correct and the judge confirmed that there were other character witness the third one of the came to many yes your honor a though i do think also when you read the judge's comments it was she felt that that there had been enough and it was came a div and she was also very careful with the record before the jury to make sure that there wasn't that confusion in terms of the fact that you know the legitimate businesses she was concerned about the inferences that the jury the jury would necessarily draw in light of the way the testimony was elicited before there was the objection and that discussion on the character aspect i think it's also important to note that his counsel was arguing and they argued in the district court that you know the whole keep point and i think really fairly the the true focus initially when when cabrera was called was the fact that she could testify that the reason they were spending all this time in going over the questions and prepping them for the interview was because that that they knew from talking to cobra and witnesses that if i could finish certainly my red light if if that they how important that interview was and that even legitimate marriages could have a rough time of it at the interview if they hadn't really prepped but that's really a miss and that her testimony on that her involvement  and when she would have relayed that to morrow was a full two years before the beginning of the conspiracy period as as your honor asked to do that testimony with cabrera was like two thousand and six and two thousand and seven the very beginning of the conspiracy in this case was two thousand and nine it went to two thousand and nine two thousand and fourteen so the district court's exclusion of that one of three character witnesses was reasonable or not an abuse of discretion and i see my time is up unless a court has further questions i would ask that the court affirm for the reasons stated in the government's brief and oral argument thanks very much the court asked about the district court's ruling in preventing mr barrett from testifying and what the court said which is the documentary six seventeen page one hundred eighteen she ruled that any additional reputation testimony would be cumulative and would be quote in violation of my order meaning her in limited order so she was precluding it based on the government's motion in limine and her ruling on that which has nothing to do with reputation or character evidence but that was the reason wanted to introduce to to make up proffer in that regard yes you're out detail was it and where can i find it docket entry for twenty three pages forty four and five the defense provided the district court with detailed a detailed summary of exactly what they wanted to introduce at trial regarding the business and was it gross income or hammer nail the marriages that were legitimate what was the gist of what they wanted to be able to there was a variety of documents that were seized during the search there were twenty three boxes that were seized yes ma'am and they wanted to be able to use evidence that was seized in that search to be able to show that there were a number of applications that were not marriage applications that they provided a variety of immigration services and that they had provided those services for years and that they had a legitimate flow of money out of a type of services because they were apparently a court had sentencing they said there were ninety four marriages they had on between cubans and nine cubans used in the cuban status to get the cuban and l p r status yes ma'am they said in those boxes there were ninety four such marriages and now we only went to trial on three or four yes in on page five of the proffered that the defense gave two to the district court they list by boxes the number of immigration petitions they had applications that were for immigration bill what were they all about marriages because there were ninety four in those boxes there were ninety four in those boxes but the other boxes list three hundred in one in box twenty three forty in one in box one thousand one hundred thirty seven hundred three hundred if you've gotten into of the businesses and other things they did the government could have put in all of these ninety four other marriages that they put in all the other ninety four marriages of education focused on the three that were at trial they only focused on the four that were but if you get into the general business couldn't the government then to come in and said look there are ninety for cuban cuban remarriage is to help them certainly the government raise that it anyway because when the government agent testified he testified that there were one hundred marriage petitions and raise the inference that all of them were fraudulent and the government and this different government said they had sentencing i don't know about the trial but they had so call of a business as opposed to walk i would try would have been to you apply they were just trying to show that they had a legitimate source of income your honor and that it was a very busy thriving legitimate business and they needed that evidence to be able to rebut the government's evidence w not come in that she had that there was a busy thriving business there no not one word about that came with well the only thing that came in is the government's argument that this was a let me get the exact that it was a  it was a one mil one stop marriage fraud shop is what the government argued in closing they argued that it was a factory a fraud a marriage mill and that they were doing this for the money money was the main ingredient for the crime and yet the defense was not able to show that they had a legitimate source of money and that there was a legit me ask the question in a slightly different way and we're looking at this for abuse of discretion i suppose  why couldn't the judge reasonably say that i'm not going to let you put in the evidence of good marriages let's say there were one hundred of them to counteract these transactions which is what this case is about because if i do let you put in ninety six other marriages that are not charge here i move the entire center of gravity of the case into something else and it would take weeks and weeks and weeks because then we're going to wind up trying the wisdom of each of these other transactions and they're really not at issue in this case whether they were good whether they were bad whether they were indifferent and presumably the government would have controverted at least some of them it would have taken what was how long did this trial like fifty fifty trial it could have turned it into four months five months six months why wasn't the judge within her discretion  it's collateral it moves the center of gravity away from what's really at issue in this in this lawsuit and is reasonably likely to create great finder maybe that's right maybe that's wrong but why couldn't a judge say that and be within her discretion your honor a judge could certainly consider that but the point in this matter it wasn't a collateral matter this was intrinsic to the to what the gart government was collateral in the sense that nobody was claiming that marriage a b or c was no good it was a fraud the government just said these transactions were plainly fraudulent yet not saying anything about those yes but the government also characterized the whole the whole company as this is just like a marriage fraud factory and did not let the defense explain that they had a legitimate  business and that it was unlikely that they could have known what was going on or been involved in what was going on because of all of the legitimate business that they did and that was the argument that they were trying to make and they should have at least been able to present a small portion of that to the jury so the jury could have considered it as it was the jury was able to hear no evidence that there was anything legitimate going on t n t and because of that the defendants were prevented from presenting an effective defense or any defense at all thank you very much this court asked how did the statement by mallette come up the question that was asked redirect examination by the government of agent the boy was what if anything did mr miss marrero say to you the answer by age and the pried i provided her copy of the search warrant and told her the allegations against her enter husband and the business and she denied the allegations next question and i asked for mr mallette what did he say to you mr blood said again i gave him a copy of the search warrant and told him the allegations and he said he had nothing to say about that that is how that statement came up with regard to mean argue when doe that there was an era why not homeless beyond a reasonable doubt given the overwhelming evidence in the case your honor as a trial lawyer we sometimes think of cases where the government has a good case and sometimes where the government has an overwhelming case i would characterize this as the government having perhaps a good case but i can also characterize the evidence i was presented as it legitimate business dealings in the context of illegal modus i stated that in my brief the context the for the legal notice was provided by the witnesses the aliens that testified for the government those aliens were  liars that lloyd many times before to the government they admit it lying in court and some of those aliens were serial either brides in a room some had been married before at least once sometimes maybe even twice in an effort to get legal status in this country so i submit that their credibility was not about the payments are they lying about the fact that they paid eighteen thousand dollars did every count of except the truth but saying well you know it was a legitimate marriage what i argued to the jury your honor was basically what i'm saying to the court today which was that the illegally by blood to the government many times about their status all this they follow fraudulent marriage but the problem was they said they paid your clients to help them and you were caught so take it all services but it was my position mr mallette specifically that the services he was providing were legitimate business services now with regard to if i may debate with regard to the harmless harmless error yes i've already stated that the context was given by admitted liars the most troubling thing for me for mr mallette are obviously the recordings but i'd like to clarify that if i could there are three recordings the first one occurred in january that's government exhibit one was introduced into evidence it and that recording you do hear mr will lead but what you hear is mr i'm a lead in the background conducting business he is talking on the phone to other people not to mr gomes mr gomes was speaking to ms morrow in the second conversation which occurred in march and that would have and that was introduced as government exhibit not there are awfully  office so i got what about the others the second call mr mallette is not even recorded on that conversation because of what happened and this is also can be gleaned from listening to the recording what happened was miss morel mr gomes stepped outside of the business establishment and while outside they had their conversation mr miller it's not even in the second part about the third one third one is a little bit more troubling and i have to admit it  he does make some statements in that case specifically for example you should tell a lawyer that you did this but in the same conversation mr willett is offering or at least told mr i was going we were going to get you a lawyer so old though they are some incriminating statements in that third recording there's also some statement early some mention but there's more good one incriminating comment or something yes there are a