first thing i think your honor may please the court devon burstein on behalf of mr torres your honour's the weight of the authority on the hearsay issue is overwhelming in virtually every other case in every other circuit the government has succeeded in arguing directly contrary to the argument it makes in this case and directly in line with mr torres argument and that is because nine times out of ten perhaps ninety nine times out of a hundred it is the government seeking to admit and succeeding in admitting inquiries of others to use against the defendant that the shoe is now on the other foot doesn't mean that the last should the law should wanted to introduce fernando's out of court conversations with your client in which some sort of question or statement was made to your client about where to take the truck either take somebody to the d m v office and saying you see drove or a tire shop near there what was the purpose for admitting that evidence the purpose for admitting that evidence  in terms of its relevance it would go to the second key prong of any viable third party culpability defense in the context of a quote unquote border bust scenario it would show that fernando had some designs on controlling the truck in the united states so there's still an assertion and i hate to use the terms because those are obviously loaded terms but in essence is the purpose to show that fernando was giving direction to torres about where he was supposed to take the truck it's for the inference but this is for the inference that fernando wanted to control the truck in the united direct movement by torres why is that not being admitted for the truth of the matter asserted which is that it was for an endo who was calling the shots here as to where the drug load was supposed to go there are that question has two parts to it as i see it your honor the first part is whether it's even a statement for purposes of the hearsay rule the second part is whether it's offered for the truth of the matter if it is a statement but aren't you offering to prove that fernando was talen torres were to go yes but if i could quote from jackson and i know judge murphy you are on the case from the tenth circuit the mere fact that the declarant conveyed a message whether question doesn't make the question hearsay it's not the fact that we're using it for the inference the question is will you go to the d m v the truth of the matter will you take my friend to the d m v the truth of the matter asserted in that question is that i have a friend who wants to go to the d m v plainly in this case that's not what it's being offered to show but it's a coded message which we're all familiar with in drug case no your honor it wouldn't yes we are familiar with does but this wasn't a coded message nor was it offered for that purpose well if your theory is that fernando is calling the shots why isn't it a coded message to tell torres where to take the truck great question because this is it's him call it's not him calling the shots to torres it's torres isn't knowing its use for the inference we would use it for the inference to say look and now i'm going in parlance for the jury you know look jury ladies and gentlemen this guy had designs on controlling the truck where its movements were so he could do  client into bringing it somewhere where the drugs were taken out you're out ladies and gentlemen i don't care if he had a friend i don't care if you want as a friend to go to the d m v the truth of the matter that he said ladies and gentlemen is irrelevant but  wasn't he suggesting that the truck needed to go to the tire shop because a tire shop would have the necessary tools and equipment to lift the bed of the truck off the chassis in order to get to the secret compartment isn't that how you're trying to link it up to why a tire shop would matter no your honor again that was one that was in the in the reply was a response to a different argument the government was making it doesn't matter if fernando says can you go to wal mart and pick up the couch can you go to a tire shop can you go to mcdonald's it does matter here by the the means with which the contraband was concealed what was unusual about this case is that it's not easy to retrieve the contraband because you actually have to physically take the bed of the pickup off the chassis in order to get to the access door that's true your honor but the purpose doesn't make doesn't read the purpose in this particular case doesn't define the hearsay content if i could if i could point to love the sound counsel counsel and judge school if i could interject because i don't want to take up all of your time as it would be helpful to hear  to but what's bothering me on this case so i want to make sure you address it is that if the inquiry you know will you take the car to the d m v will you take the current of the tire shop is carrying with it an implied search and i want you to take the car to the d m v i want i want you to take the car to the tire shop when we consider whether it's offered for truth are we asking ourselves whether it's offered for the truth of the implied assertion that makes it relevant not for the truth of what could be a cover story about taking a friend no your honor because as the six circuit held in rodriguez lopez just to give you the direct quote and i think it may be more persuasive than the way i could phrase it the fact that an  out of court out of court statements are being used to support a material inference does not by itself make them hearsay it makes them relevant and i think the best description and i think really your question your honor and judge thomas questions are not different and i if i could point to the seven circuit description in love because for me that really is they do the incredible job in explaining it and if i could just quote questions seek information but they convey information to a speaker who asked sun is it raining outside clearly intends to get information about the weather but the speaker also implicitly communicates information for instance that he or she is probably indoors is interested in the weather and h some commentators to argue that we should view both imperatives and questions as statements for purposes of the hearsay doctrine because both intentionally express and communicate ideas or information the federal courts do not take this approach we have held that questions are not statements and therefore are not hearsay our sister circuits agree that is it is if you say if you did drugs you say do you have the stuff  and you your honor you'd reference judge then judge clarence thomas his decision questions there are does he still have any stuff and can i pick up a fifty but he's not focusing on the form of communication he's focusing i think on the intent of the declarant and that is different it doesn't matter whether the intent is communicated in the form of an affirmative statement or a question if the intent of the declarant is to make an assertion that's right but if you're arguing for a rule that simply says if there's a question mark at the end it's not and therefore it comes and i don't think it's quite that simple i agree it's not that simple and judge but judge following that point judge now justice thomas  it is difficult to imagine any question or for that matter any act that does not in some way can pay an implicit message and i'm not saying simply sticking a question mark on the end because that's the summers case that the government relies on how did you get here so quick that's that's not the same kind of question that is a question that's not designed to seek information but what we have to look at as your honner just noted is the primary purpose if your primary purpose if you is to elicit information yes i will take your friend no i will not take your friend it's not an assertion and the way we know it's not an assertion and the case law says this throughout the circuits is that it can't be proven true it's not the intent from the content buried in tents there are matters what he intended the purpose for which he wanted and to have control of the ickle right and that's judge also judge justice thomas point when he said quoting the crucial distinction under rule a to one is between intentional and unintentional messages regardless of whether they are expressed or implied a detent the intent the express purpose of asking a question is to get an answer to that question it is by nature of what makes them question mr bernstein let me shift to the relevancy inquiry because we have an unusual situation here in that the district court had a complete preview of the testimony in the first trial and when you offered it or the government moved in limited to preclude it in the second trial the district court said i kept listening for a linkage to something that was relevant in the case and the problem is that this conversation occurred ten days before the load was intercepted at the border and apparently the pickup had crossed the border a couple of times in between and the court found the court basically found it's just too remote it's both hearsay and it's not relevant because it's too remote i didn't hear any any connection here your honor the circuit precedent is absolutely clear cited in our brain if the that the lay goes to weight well as it does to a point but it's some point if the district court says look i heard a proffer of this testimony and it doesn't prove any fact one way or another in the case is it an abuse of discretion for the district court to exclude it on their grounds it is your honor it's an absolute abuse of discretion under the supreme court's case including because in this application of the law the law is very clear that credibility and the weight of the evidence is solely for the jury but what the court is saying is that it doesn't it doesn't think of the word explain or refute or clarify any fact that the jury has to decide here because there's just no linkage it's like if we took it at its literal face value fernando asks to days before torres is arrested would you take my friend julio to the d m v in san diego and torres said no what does that have to do with the fact that ten days later torres is found w seventy three kilograms of dope if i can use mr hoffman's words to answer your question the whole point of offering the statements was that they were supposed to reveal what he truly wanted to happen with m fundamental standards of relevancy require the admission of testimony which tends to prove that a person other than defendant committed the crime that is charged it's just a it's but again you're drifting into this per se area you have to  though it may go to the weight there comes a point when you have to say there is no way can affect the weight that there has to be some line drawn that that's true your honor but in the end that's that is what the  is a good point to draw the line well it wouldn't because we're not nobody is the government has done an excellent job with that argument but let me tell you if i could and i know i'm over my time why just address your question why that argument is a bit of m clever mr action but mr action nonetheless there was no assertion because it would be absurd that this load of drugs was driven back and forth across the border for ten days the government says that and it's it's a it's yes it's a great straw man because it's an it's an absurd argument but if this sounds lobes are right and so the argument is was not that this was not being used to show that he ten days ago tried to control the trough it was being used for the for the inference that this guy fernando was making efforts to control the truck in the united states and that's the argument that was made to the jury  during the first trials closing argument look this guy had designs on controlling the truck if you have designs not you your honor if somebody has designs on controlling a truck it makes it more likely that that person is the responsible third party why because that parson not only has access in mexico but then has some idea about getting it out of the united states without but you did get into evidence testimony with regard i can't even pronounce the mexican mechanics name but you don't have a we know who or time and the fact that fernando had borrowed the truck on at least four prior occasions and i had a key and knew where the truck was parked so  i really didn't get in all the evidence that you wanted to get in but you clearly had evidence on which you could make that argument to the jury but not the crucial part and that's where the big difference was well but if it's if we decide it's hearsay then it was properly excluded if you desire if you decide it's hearsay it was arguably properly disclosed excluded there is the supreme court precedent i believe it's in chambers that talks about is it is an out of court statement offered by a missing declarant who is not there to be cross examined and it comes from the lips of the defendant who obviously you know has a bias and offering trying to lay it off on somebody in i'm wrong if if he there was still some evidence of third party culpability i was able to get in and isn't that essentially the bulk of what you wanted to get in and i was responding that no it isn't because it's only one side of the coin and it doesn't defense so the idea that you can't show who was going to have responsibility on the other side that's why they put in value evidence because they want to say look who can take who would send this over the border it's worth a million dollars there's nobody who wants to get it out that's why you need fernando's questions because they are the ones who should that's the only evidence that shows there was somebody to take that million dollars on the other side ok let's hear from mr hall thank you honors i'll give you some time  good morning karl hofmann for the united states but this record didn't abuse of discretion and excluding this testimony and there's a good reason why the parties really are agreement on the on the rules there are two requirements for something to be hearsay and excluded the first is that the intent of the declarant be that the statement be an assertion and the second that it be offered to prove the truth of the matter asserted i think the real nub of the dispute is on the first issue the intent of the declarant and what i would say here is what we've got in this case is a little different from the other cases that mr burton relies on we've got the testimony of mr torres himself and that's what i put a lot of weight on in this case he wanted me to take him to the d m v now what i would suggest to the court is that's mr torres at the very least his characterization his influence his belief as to what if questions inference and what we have here is mr torres inferring from the questions he wanted me to go to the d m v at the very least i should i should stick step back and say it's possible mr to fernando actually said i want you to go to the d m v nobody pressed for as you say he wanted you to hand you to take him to the d m v you know it was a tire shop near the end tire shop both folk well i mean i don't understand what the relevancy is take me to the tire to the d m v the idea is for the my friend i guess it was right the idea is i think everybody's in agreement on this too is that it's showing that fernando wants to go to to direct where the car the truck is going in the united states and he one point at the d m v another point it's a tire shop all i'm suggesting is where we have here unlike the other cases some evidence of what the declarant intent was it's indirect evidence to be sure but that happens all the time very rarely do you get a statement well that was my intent and so particularly where you have an abuse of discretion standard and the district court and you have evidence of what mr torres thought the intent of the questions was he wanted me to take him to the end he wanted to take him to the tire shop it could be no abuse of discretion for the dis district court to find these questions were meant to sort of plea therefore they meet the first prong they're offered for the truth of the matter third therefore they need the second prong they should be excluded that's that's the the outline of my argument i think what separates what i would put a heavy emphasis on what really separates this case from many of the others as you have that evidence you have that statement from mr tor he wanted me to take him to the d m v that's at the very least how he interpreted those questions so she so what's our standard of review here the district court properly identified that this was an issue implicating the hearsay rule it applied the two prong test to the facts that were before it and it can't be an abuse of discretion if the district court which had heard the complete testimony in the first trial then relied on that knowledge in making its ultimate ruling as to prongs woman two yes with one caveat and that's this it's true that the parties didn't really identify the issue of clarence intent for the district court and so the district court didn't say i find on this record that fernando greasy of well he the district court yes ok but the district court the battle was really more over is it being offered for the truth of the matter asserted and i know mr burton is trying to make an argument that that wasn't the case i think that that just doesn't fly i mean the whole point is offering it to prove that fernando one of the car to the truck to go here there or somewhere else and the district court was emphatic that it's definitely being offered for the  content well it's interesting your honor i heard mr person use this term primary purpose and i know that long in some other cases talk about implicit and and overt i think here because of the statement that i'm focusing on he wanted me to take him to the d c d m v i think i it's not just implicit it's not just secondary it's that's the main point of the questions i want you to go here there are else where so well that's the that's the umbrella purpose but the subsidiary purpose i want to go to the d m v one or the i want to go to the mechanic shop but i don't think that matters in the end it's a question of he has designs on where it goes and that's what it's being offered for and that was the intent of the questions meeting the two prongs the intent of the questions were actually assertive it was off of the proof of the matter truth of the not asserted there and then particularly on an abuse of discretion standard the court was right what about the relevancy issue i here's what i would suggest for i i think judge houston did a good job of this in the sense that what he understood was you have to be offering it for the proof for the truth of the matter asserted otherwise it has no relevancy at all you have to be offering it for the truth of fernando wanted it to go x y and z the argument below was a little bit it didn't make any sense was always just on the defense side was we just offered it to show that occurred well so what it has no relevance unless you're offering it up to prove that fernando wanted to go here there  now i'd be happy to ask answer any questions or courthouse about the hearsay problem but i would feel a little bit but i think i would address the harmlessness issue in case and i think the main argument of counsel is look we've got two trials and the outcome of one with one weighing outcome along with another way and i would really urge the court that just because there hunger in the first instance does not mean it was a close case we those of us who have been trial lawyers juries go sideways for all kinds of reasons not necessarily related to the merits of the case and the second circuit case i cited newton recognizes that explicitly point one when you look at the evidence here you've got mr tourist was nervous not only on the day of his hands were shaking when he had her over the keys but he was nervous on the date august eleventh a few days prior that's how the primary specter notices in the first place and his car was modeled his truck was modified both on that date and prior so it was modified three times in ways that were visible there's testimony from everybody took a lot so this notion that the somebody else scented willing nilly and was going to get it out easily that just doesn't fly it's very it was very difficult  then he never mentioned fernando greasy at all and his post arrest and the something i think that has been not emphasized enough this is cooked up for trial is very obvious he talked about the mechanic but fernando never once appeared and he was asked  tly and his post arrest you know who's had control of your car so all of that together and that's just in the first trial you get to the second trial you get an expert who i mean  torpedoed exploded i think he just backfired enormously on the defense case and i think there was an argument made from counsel that i would that was all testimony from a previous trial and a lot of it was problem is all of that was substantive evidence why because it was from a trial it was sworn testimony the we what you're talking about a very rare hardly ever happens they get they get paid they know it makes no sense for them to go back and forth and be loaded beforehand i mean when you put all that together in the second trial was even more overwhelming than the first and the first was overwhelming despite this trial that would be my my from candidly i think the real fight here should be about harmless error i think and i think mr hoffa to me is just looking back at rodriguez lopez where was i want some heroin can i get some heroin bring me some heroin not hearsay and to see this if i say your honor mr hoffman is wearing a red that is an assertion that is true fall can i borrow your red tie true false no you can't say true or false that's why it's not hearsay that's why it's a question it's fundamentally different we believe the weight of the authority on this is not only overwhelming but overwhelmingly correct in this instance you're not making an assertion i know this gets worse we want to be splitting words here but that's what we do i i do agree with mr hoffman and he he makes some good points you know that really the focus here should be maybe this he doesn't agree with this but i agree that the focus really should be on harmlessness we see the case very differently what's your response to his laundry list of incriminating evidence i mean that that is pretty incriminating consider cumulative absolutely and it was all presented to the first jury well not all of it you didn't have your defense expert who and i agree with mr hopper i'm blow up maybe a little too strong a word but let's say it didn't work out as well as it could have for you your honor i think that mr hoffman is quite skilled in the way he presented that testimony i think a full read of that testimony it was incredibly helpful while the testimony be helpful to say that blind mules are rarely used and the only other instance he could think of was maybe one media report where the drugs were hidden with something other than magnets he misses a pretty sophisticated hidden kampar it was and he said that several years later he had said they were very rare but he also for the first time provided the jury with all of the myriad reasons why a cartel would use a blind mule and that there are a lot of reasons and they're very good reasons for example you don't have to split the money you don't have somebody who can snatch you don't have somebody who can decide to sell the load to the highest bidder on the other side so there are a lot of reasons and i believe if you read the testimony in fall it doesn't torpedo it and all of the other the laundry list of evidence was presented at the first trial and i would point to do problem i'm having is it the to hang your hat on the proposition that there was a hung jury in the first trial  that still goes for harmlessness now it only takes one but i don't hang my hat on it so much as i'm using it as a tool to show that this wasn't an overwhelming case it was close and when you have a close case that's i'm not hang my hat on harmless i'm just trying to illustrate it was closer than the government's trying to make it seem and when you have a close case in the first time and the second time you're not allowed to put what we truly believe is necessary flip side of the third party culpability defense remember the government can't meet its burden to prove harmlessness regardless of the stature of the standard it's not our burden to prove to the court that this error assuming you agree is error was prejudicial it's the government's burden to obvious to the first customs inspector who made the entry into texas or whatever the computer system is and there was testimony by your client that he was upset with the paint job that had been done by the two you wanna mechanic it's pretty hard to believe if he'd walked around the pickup at the back and that he couldn't have seen what had been done under your theory by fernando and his henchmen  not infrequently that one person always yuri's once herbal tea rather than black coffee that's also true your honor but but rather than hypothesize what the difference is could have been i'm pointing to this court to a difference that actually was and it's just in sixth amendment rights of the defendant these are the constitutional rights of the defendant why shouldn't the defendant get his shot to put on his case he  key to the third party culpability defense and i think the trial counsel did it better than perhaps doing it now and her explanation if what's important here is not what fernando requested or what he was asking mr torres to do but simply the fact that fernando asked mr torres to take his truck into the united states to cross that border by himself and go to a location in the united states that had pre selected so whether or not mr torres followthrough makes no difference the issue is that fernando attempted to exercise his dominion and control over mr torres his car we had it the first time mr torres was permitted to put on his case the first time there was a hung jury he was not permitted to put on his case the second time it's his right he's doing one hundred twenty one months in