ok good morning may it please the court kara hartzler on behalf of mr gomez gomez on the night of mr gomez's arrest a sensor went off the agents responded and they found a partial cut in the upper section of fence then they looked around and a little ways away they saw a person lying on the ground that person had no ladder no tools for cutting a fence nothing that is the traditional equipment you'd have to cut a fence so at trial our defense gomez who was a mentally ill home a homeless man who believed that people were chasing him he had been sleeping in this place for two weeks and that because he felt safer in this place and the evidence of the sensors showed that the sensors had not gone off for the past two weeks that someone else is actually the person who came in cut the fence that was the government's theory too though the government's theory was that somebody else conference correct so you agreed on that how were you and your client testified you did not did not testify so how were you present prevented from putting on that defense we were we still put on that defense the problem is we had no independent corroborat evidence that that supported our version our theory of defense and what this court's case law has said and steve hers and evans and many other cases is that when you are deprived of the ability to present important probative standard and the standard here is that the government has the burden to show beyond a reasonable doubt that this error was harmless so st of all worth it if it's if it if it denture e the government doesn't have to show it beyond reasonable doubt and i think that's one of the questions that th government sort of tries to frame this is an evidentiary issue and the problem is it's not st of all it's not because in similar cases like steve years in evans where a critical point critical bit of independent corroboration evidence was kept out they said it's a constitutional right to present a defense but not in evidence during my filing with those cases and agent help me with them those are cases in which we were able on review to say this was a critical piece of evidence because we knew what it was and the judge looked at it and said i'm keeping it out right here you've got a theory my your theory is if we had this evidence it might show it might be consistent with our story it wouldn't corroborate it wouldn't necessarily prove your story it would just be consistent with it is there a case out there that says that amounts to constitutional or well i don't i think i don't have a case is going my problem is we're not because we're able to look at it and say oh my gosh that would have been really good for the defended well here we don't know let's let's take evans for instance and evans the defendant still testified he still put on his same exact defense he still said i am a united states citizen what was denied was the late registered birth  and just make clear that we are not asking we're not arguing about the range of the sensors all we are asking was at this point on our appeal is that the judge should have admitted evidence about when the sensors went off and we knew all of that evidence this was not speculative the government had turned it over the government ok thank you that's right the government said look the only time the sensor went off in the two weeks before was this one time for repairs they never said that there was a national security concern with that we knew exactly what the evidence was and on appeal all we're arguing is that that's the evidence that should have come in with the evidence that would have come in was that it went off two weeks before and on that at the time that these border agents responded and found your client there i thought you were also arguing that it went off near where the the fence got cut there was a lot of discussions about the range where it was we asked for discovery on that there were arguments during trial on appeal our argument you're not arguing that all we're arguing on appeal is that we should have been able to get the evidence in showing when the sensor went off that it went off the night of the arrest and other than that we likely would have put mr gomez on the stand he would have testified that he believed that he was being chased that he was looking for a safe place to sleep and that he had slept there for the last two nights so if that evidence had come in to that the sensor hadn't so the government's theory is when when it became clear that mr gomes didn't have the tools he didn't have the latter he didn't have anything then the government kind of shifted its theory and said ok our theory is that it was a two man job and that mr gomes was working with the person who had the ladder in the tools and everything that person escaped back so at that point it was even more important for us to get was evident outer garment workers were where does the lateral right i mean the all that all we know is that somebody had a tool to cut we don't know whether somebody well the cut was actually at the upper part of the hans was about i believe six hundred feet so you could've cut it without a ladder ok in other words the the hole the governments the it was someone else had come in with a ladder with tools and that that person mr gomez were working together and that when the sensor went off or they saw someone coming the person with the ladder and all the tools and everything else jumped back over the fence and mr gomez wasn't able to get back i want to get back to because you're making a more limited argument than i thought you were the district at blow you do argue to the judge trying to judge i want to be able to get in stuff about the range of the sensors and where they're placed or whatever and the judge said gee you that's what you want to do i'm just not going to let them put in any sense or evidence at all just going to keep it all out because i don't want to get caught up in the range in a national security issue and whatever and the judge made that ruling in light of the fact that you were to get in the sens all right i'm not going to make them produce this we still asked to have the evidence about when the sensor was activated go off so in other words when we didn't get what we wanted at st then we changed our argument and what we're what we argued nd is exactly what we're arguing of when the sensor is activated was an important independent corroborating fact of this defense the government never argued that it was a national security issue and so at this point all we want we wanted this to go to the jury this was a fact for the jury to consider and by the judge keeping it out essentially the jury was deprived of that important independent corroborating evidence that would have changed potentially the course of this case at a minimum we believe that the government can't show beyond a reasonable doubt that it wouldn't have changed the course which when you shouldn't take a look at your one hundred and sixteen ok that's why i'm having some difficulty because the judge says it's the government's choice do you want to censor evidence or not the government says no and then it says ok now the defendant what do you what's your choice and so i'm trying to figure how well with the new didn't the defense at that point say well we still want to go forward with the evidence exact could you show me where that's where i'm having them i would be i would be happy to find that before i say a little time of for but i just want to talk briefly about one sentencing issue i want to talk about the rule thirty two issue because in that situation what happened was that the district court came into the sentencing hearing and the district court had this transcript from a prior sentencing hearing no one had ever seen and the defense didn't know it existed or that it actually was in transcript form and the judge proceeded to rely on this on about a quarter of the  pages in the sentencing transcript that was a real problem and not only does this court case law say in gray in war in bald rick that you have to give advance notice of anything like that that you're going to rely on during sentencing this actually c problem because we didn't know in that case what the guidelines range was in the texas case in that case the guidelines range was actually one hundred to one hundred and twenty five months so the the judge there gave a low end sentence by contrast the judge here the guides guidelines range was forty one to fifty one months so rather than giving a low end sentence as the judge did in texas the district court here actually gave a sentence that was almost double of the high end of the guidelines range was an extreme upward variance had we known what that guidelines range was had we had advance notice of this case we could have made an excellent argument that look you shouldn't take that one hundred month sentence so so seriously because the guidelines range there was vastly different than it was here and that's why we think that that made a difference if the guideline range in the texas was much greater it was one hundred  hundred and twenty five months the judge gave a low end sentence of one hundred months in our case the guidelines range was forty one to fifty one months and the judge gave ninety nine months and not having that guidelines range from the prior sentencing hearing not knowing what it was that made a huge difference and how we would have argued that case so if the court has to reserve your i will reserve my time thank you and i'll find that quote you're on please the court nicole restocks the united states district court did not err in concluding that excluding all evidence of the seismic sensor that alerted the night of the defendants arrested not deprive him of his constitutional right to raise the defen the district court determined that that was the appropriate sanction for the government's nondisclosure of the range of the sensor and the district court properly concluded that the defendant case was in fact stronger without all of that sensor evidence because all of the sensor evidence reconsideration and when he it with the district judge was approached with two reviewing camera what the range was the district judge in a curious statements and why why should i what good does it do me to see that i'm not quite sure why the district court did that it seems like he should've seen it and then made a determination based on that and i'm troubled by that part of the record here because i think that affects sort of what happened here because the district court judge doesn't really know what that evidence said and just kind of said ok i'm not put that in and then when the defendant and you correct me if i'm wrong then said no judge we want it in and i think you use the term we want to weaponize it because we think it supports our theory of defense the government's trying to say some other person he was working with some of the person and that's not the case he's been sleeping there all along if the you know all the thing about the sensor and the look and the location now it seems like that is more limited but i'm just concerned as to why that isn't harmful and why it's just harmless when we have a lot of case law that says you know fundamental standards of relevancy require admission of evidence which tends to prove that the person other than defendant committed the crime that is charge with air cannot be harmless where it prevents the defendant from providing an evidentiary basis for his defense and then espinosa says if the evidence that someone else committed the crime is in truth calculated to cause the jury to doubt the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic but could afford the accused every opportunity to create that doubt and then we have lopez alvarez which says due process concerns are magnified because the district court failed to exam the censor i'm sorry i'm saying that the due process concerns are magnified because the district court build to examine the sensory evidence in camera and evidence is excluded on the basis of an improper application of the rules due process concerns are still greater because the exclusion is ordered by any legitimate justification so there's a lot baked in there your honor start with the governor the district courts the area of materiality was not that the evidence was helpful to the defense but he said is this evidence the range of the sensor is going to tell the defense whether or not they can raise the sleeping between the fences defense that is it's material to their determination of whether it's helpful or not but then once the government disclosed that the sensor alerted the night that the defendant was arrested but had not alerted during those two weeks when he claimed he was sleeping in the very same spot the district court determined that actually the sensor evidence was not helpful to the defense add to that may i kept going to add to that the fact that the usa actually specifically informed the court that the defendant was arrested in the immediate vicinity of the sensor that devastates the claim that the day that the defendant was sleeping there in the very same spot for two weeks prior if the defendant was arrested in the range of the sensor he couldn't have been sleeping there for two weeks because the sensor never activated so he was actually able to raise a defense in this case that he could not as a factual matter have raised had the district court admitted all of the center of it we don't know i mean the range i mean the judge didn't let any of that in right yes all and so i'm just trying to figure out the defendant says it would have been helpful to him to bring in the sensor because it would have shown that he he says he was been sleeping there the last two weeks in that area and the censor never never alerted and it would not have been helpful to that defense was he was apprehended in the range of the fence or what we saw had but that range never that never came out i mean the judge was never it speculative either way right he could have moved into the range of the sensor moved out of it so but why would you know he's arguing that if i have this i might be able to put on a different defense or put on  better defense why what doesn't the judge at least have to make a record in camera of what it might have show and i would submit that the prosecutor's comment that that defendant was apprehended in the immediate vicinity of the sensor is sufficient for this court to defense as a constitutional matter rests on what the range of the sensor is i would i would suggest the court could remain on to the district court to view the evidence in camera and to determine whether the evidence would have been helpful or ask a different question because i'm i'm a little confused about the record as i read through the hearing the defendant saying we want to get in the sensor evidence in terms of rage and the government said we don't want to give you that information because it's a matter of national security and everybody goes back and forth and the judge says i'll be solomon but this baby down the middle and here's what i'm going to do government you can't put in any sense or evidence period but i'm looking for someplace after that where the defense says oh no your hon and thirteen your honor but that's before the judge announces his solution that's my problem i understand up and the time the judge announces his solution they're fighting very hard to get everything in and you're fighting very hard to keep the range out once the judge announces a solution in terms of the government's take it or leave it either i'm going to let it all in or none of it is there's the defendant you know your honor that creates a problem for us no but but you know when ten this is when the government court before but i think that the district court has pretty much think not at that point if there's no talk of sensors then what's the difference he can maintain his theory and the defendant's fighting that the fighting that a defense attorneys are fighting that and then he thanked well this isn't going to harm your defense and that's why they come up with a theory which i think for the st time they say they want to actually weaponize the of it and and then this is just your core issues its ruling and i don't think that the defense of a reraise is that argument but i'm also not sure that they would have been required to  so once again so you say i'm sorry i'm you don't think it rises to constitutional proportion that they're it's harmless that both are true both if we think it might be this we can send it back to the district court to view do that in camera review that he should have done in the st place to the extent that this court thinks that the question turns on the range of the sensor that is knowing whether the defendant and some of the defendant is saying now that the range may not be necessarily as important as just that it went off so that understand the difference between your positions because it's a little confusing in light of everything and without information without setting aside the range all of the sensor evidence was highly probative of the government's theory of the case and completely undermined the defendant's case here is the evidence was the defendant was apprehended within minutes of the sensor being alerted this he claimed he had been sleeping in his usual sleeping spot for two weeks yet the sensor never alerted and so the only reason the government thought the range was relevant w because it was the defendant's only chance to rebut that theory there the evidence as good without the range with only supportive of the government's case and did not at all help the defendant's case the the reason the district court  material during the discovery phase of the case was because the range would help the defendant to determine if he had a defense at all if his sleeping defense was viable and i'm trying to get back to the know you've identified but the difficulty is i don't find any place where the defense says we would just like to introduce the sensor the fact that the sensor went off without saying we'd also like to accompany it with the rage i agree your honor i was now on appeal they say don't really care about that so really there's we're worried about is whether the sensor went off i also did not understand that nuance of the argument because i thought too that it was all about the range i'm not aware of any other play of any place below where the defend the fence said we want this evidence to come in without the range i don't believe there's any point in the record where the defense says that's what they thought it was clear at the time i guess that the sensor when off near reentry why did you charge him with attempted illegal reentry so the difficulty in these cases is that when a defendant has not made it all the way far enough into the into the united states it's hard to prove the entry and we have to prove a yes but then we get i mean this there this area of the law as you're on as well know is is very complicated and it's difficult when a defendant has not crossed you know miles into the united states it's more difficult to prove his intent and so we  sensor alerted one of the officers was already there at the fence the other one a riot they examine the fence and found the defendant within fifteen minutes and he did not have any tools no your honor and the government's theory of the case never was that he was the person who did the cutting because that would have been an improbable theory there were two sets of footprints and so i think from the beginning i don't think this to man defense theory was new isn't it i mean the guest his defense was somebody else was trying to do it but it wasn't me and that was the defense he raised and i would submit that that defense was far stronger the idea that he was just sleeping and somebody else cut the fence was far stronger without the jury knowing that on this night the read out loud in open court the portions of the transcript that he was relying on and that gave the defense and the defense attorney the opportunity to address it and that's overall thirty to require the if this court believes that he should have provided that evidence ahead of time the fact that he read it in open court and the fact that he relied on a variety of three thousand five hundred and fifty three a factors not just on this prior transcript  judge is going to rely on it extensively and you say well they should have on the spot be able to figure out how to deal with it whole idea to make sure they see it before will rule thirty two in this court and the supreme court has specifically said that rule thirty two does not require disclosure in advance that that just goes or at the time of the sentencing hearing and depending on the thumb stances is the fission and here where the district court read the pertinent portions and where in fact they were really the same considerations underlie the sentence it was about incapacitation and deterrents and the defense defense counsel was well aware that those were the issues that were going to be pertinent to the fact that i don't have any substantive problem with the suit so i mean it's this is a repeat offender a new judge when it relied on a pure prison study when sentencing were without notifying war a bit before the sentencing hearing i think i have two responses on war number one the bureau of prison study that was cited in that case was a completely independent study having nothing to do with the defendant so there was no way that the defense was on notice that some study about juveniles and whether they are going to reoffend would come up in the sentencing hearing here we're talking about the transcript of a certain thing that covered the very same issue  that didn't know that it existed i presumably they knew it existed if they knew he was sentenced previously i was able to pull it from pacer so presumably they could have but even if that guy before him you know i have it now i would be able to pu in preparation for the argument from rome i think he went on pacer and pulled himself to see what considerations led to the one hundred month sentence i know that in an eighteen page transcript sixteen pages of it are about whether a different enhancement would apply based on a prior conviction there's only one or two pages that the district read from those are actually the only two pages that talk about any of these so he did read the entirety of the relevant portion but setting all that aside this is reviewed for plane air that just defense never said your honor we'd like an opportunity to go look at that transcript and prepare a response and so i'm playing fair the question is whether and that's the nd point i wanted to make about war is that war found that the court violated rule thirty two dollars in relying on this bill be study but that there was no prejudice because one the just the document was discussed and quoted at the hearing itself to the court relied on well known and commonsense propositions from the report and three the court would have imposed the same sentences but i'm just wondering if he would have he was looking at the sentence that he got in the texas case right i see now i am francisco is that right yes that's correct and there's some confusion i think the defense is arguing now or would say and they would have argued had they known the judge was going to be focused on this that you know the defendant here who apparently suffers from mental health issues might have been confused as to why they released him in san francisco and didn't deport him and thought that maybe he could stay and so and hear that you could tell the judge really relied on that sentence you know on what happened after after this case this is what happened was after the texas sentence it after he served the sentence that's when he was sent to san francisco so that hadn't even occurred yet at the time of the transcript so the issue about san francisco was fully aired at the hearing the defect defense counsel is fully on notice about that so there's nothing new from the texas transcript that would have for at all on that point and i would just urge again that this is on plain error and the district court to the extent it relied on that transcript the sentence that he imposed would not have been different i think  you just to follow briefly on the sentencing issue before we get away from that weak knowledge on plane air but i think your honor is exactly right that war is directly on point here and i just want to clarify a bit more record i'm sorry the court found the so tell us why your case is well there's no better i st of all i just want to point out that in war they basically said and i'm i apologize i should go back but the principle in war was very clear that you can't bring in new wars actually directly on point and there's no supreme court case law that overcomes that now as to your issue of plane air basically i mean i think st of all as i pointed out there was this whole issue that council didn't know what the guidelines range was we didn't know what else was in that transcript maybe things in that transcript could have been helpful to us ok now you've had it for two years so don't tell well we found out about the guy what you would have done did we could have we we could have realized you know this well i guess we could have realized until the sentencing hearing how much that san francisco issue was very important to the judge but i was in the p s and that was in the p s r i think the other thing your honor is that because our client was mentally ill it's really unrealistic to think that he was able to somehow convey to us ahead of time hey here's what happened and the the real thing that i think was was concerning is that the district court judge relied on this to completely credibility he said oh well your client allocute did this last time and because of that i don't believe and i don't think he's sincere he used the word sincere over and over if we had known that we could have maybe prepared our client and said you know what judge we want to be able to get in the fact that the sensor went off and it's rage right and the judge goes back and forth with various hears arguments from both sides of and then says all right here's my solution they can't put baby thing and i don't think that you know any objection would necessarily change his mind but even if i don't think it was necessary so why doesn't this change in that you're limiting the the basis of your contention here on  appeal well i think st of all your honor i i'm not sure that we necessarily you know there had been a lot of arguments about this before the trial court and the district court was trying to move things along i'm not sure there was an opportunity for us to object assuming that we had been able to say hey just let all this sensory information or what what you now say would have made a difference really would have made a difference so i want to understand why you think it would have because she said it pointed to him being right there well st of all i don't think it's the government's job to say whether this would have made a difference or not it's the jury's it's a jury decision nd of all i think that the government actually before it said well he was arrested in the media vicinity it said several times the opposite it said that he wasn't arrested in the immediate vicinity or that it would stipulate that he wasn't so the government was equivocating about this and most important your honor i think that the government as this court pointed out wasn't even willing to give over the evidence same whether that was true or not so essentially what you've got is a situation where the government is basically making a factual statement and the jet district judge without requiring any supporting evidence of that used it to shut down