you would lose is that judge i don't speak spanish i don't know what it says but i certainly couldn't have raged the objection that i did at trial but you had to get it translated before trial right to determine you didn't have a good faith basis judge i've seen them before and it would have been a much more difficult if not impossible challenge to make if in fact the consent to search form had been admitted on the other hand the defendant's actions in deleting the critical information on his phone during the time or beef after giving consent but consent to look at the phone but before surrendering the phone shows that he did not knowingly agree to have his phone for y analyzed or he would have known that what he did was in essence or way why would you delete stuff if you don't think law enforcement's going to look at it they thought he thought he would look at the phone i e go through it with him the information that he gave them see there were no contacts because he had a race them she there were no photos cause she had a race them she there was not that phone call from texas to florida because he had to ration all that right s he was doing it because he anticipated they would look into verses at his farm but judge respectfully i disagree i submit that he did that thinking that all they were going to do was pick up his phone and scroll down whatever he showed detective he was not a member of the task force he assisted the task force members by translating and on direct he said that he was allowed that he got permission to look into the phone when i cross examined him he said that he was given permission to look at the phone admittedly my our position is that that's conflicting and therefore the government failed to carry its burden of demonstrating a valid extent to the extent to the scope of the examination of the phone the arguments the trial dealt with whether or not the challenge to the admissibility was waived not to the extent of the scope not to the extent of the consent that was given opposition is that at trial that issue was not raised by the government nor respectfully was it raised in any detail in his reach the only issue the government has raise loses its opportunity to appeal or adverse ruling i understand that judge a government also had the opportunity to make sure that its consent was admissible by having the form translated and that's true and i'm sorry there's a have versus ruling the government with loses right to appeal to that's why are that's why these motions have to be filed before trial that's true and i submit that there's also a conflict where groups twelve requires that's wh over requires that motions to suppress be made proved wrong by and rule twelve also refers to trial objections giving rise to i think a fair inference that sometimes you can raise an objection despite rulz why well because of the evidence the trial which is what happened in this case were discouraged from filing what could be for a list motions from going on fishing expeditions at the time for a trial there was no indication that the scope and validity of the consent good morning may please the court frank give your on behalf of the palin cloudy emma to day it please the court opposing counsel your honor we asked the court today to give teeth and meaning to the fifth amendment requirement that no conviction can stand up unless there is proof beyond exclusion to all reasonable doubt in this particular case the government with respect to the knowledge requirement under eighteen u s c six fifty nine the receipt and possession of the stolen goods was devoid of showing any knowledge of the government build a house of cards on the proposition that cloud image to day received the stolen goods on her house on april twenty second there was no evidence in the record to show that she was present on april twenty second april twenty third april twenty fourth we're all guilty knowledge can be of inferred by the circumstances right we've said that we've got a precedent that says th but again the circumstances merely showed that on april twenty seventh she was present she got a knock at the door and you know what was more than that the cargo arrived at her home late the same night under the cover of darkness and then it was there for five days standing in the piles six feet high covered with a black tarp in her driveway she claimed in the rinse and responded take it we don't care it's yours and those actions are not consistent with a claim of innocence and the why can't the jury infer guilty knowledge from those circumstances i would submit that those  probative if there is any evidence that she was present on the day that the pallets were delivered and that she was present at all during the time period where those palatal remained on her property it's also less probative when there is other evidence presented that there were several other individuals that either lived or when they ran the license plates came back to that particular conducted a particular home wilson just laid out a factual scenario that you in the evidence in the light most favorable to the government as me monster reasonable jury could again i believe that that proposition only stands if the if if they can link that inference that is that she was aware that the property was on her property that the pallets were on her property in the picture it's he was there when they came it's beyond i mean you're not going to miss that she was i can't the jury look at the picture look at the fact she was there look at the fact that she said it was olive oil and conclude that she was lying about the olive oil and that is she knew it was there i believe all those factors or are pro again if there is some scintilla of evidence that she was present throughout this time period and i believe that there is none you have to be i mean if i had something to live or to a storage locker i'm not present there and yet i might know in a jury could conclude i knew from the fact that i gave someone access that there was a ton of stuff there that i had seen it and done nothing about it and why this presents explain to me what i'm missing why presence has something to do i believe presence has something to do with that because that's the only way that you can that the fact that it was on her property becomes becomes probative and it's open and obvious on a property that is correct but there's no evidence when she first saw it it could have been she arrived on the morning of the of the twenty seventh when the law enforcement knocked on her door i believe that coupled with the deliberate and i'm sorry i don't know this but did she put that in front of the jury somehow that that's when she first arrived that was not on property that was not presented to that was not presented to the jury your honor but i believe that that issue of the lack of knowledge in addition with the deliberate ignorance and instruction again and i believe the rivera court cautions against using the deliberate ignorance instruction and that it should be used only in those comparatively rare cases where there are facts that point in the direction of deliberate ignorance if not a jury can convict on a basis akin to a standard of negligence would apply are harmless error i believe that the lack of direct knowledge that she was that she did she knew that the pilots that were stolen that she should have known that there were stolen this was a spanish speaking individuals the apparent nature of the boxes were not was ascertainable they really said that they were that it was fragile i believe the name of the perfume there was the name of the perfume a yellow sticker on i believe based on a review of the record on the photographs on on merely some of the boxes she had a spanish interpreter there was no evidence that she could read in english this was not deliberate ignorance which is typically used in narcotics cases where someone receives packages under a suspicious nature and essentially they don't take any steps to confirm or deny whether or not there is contraband or narcotics and this particular case there was no evidence of twelve c three does recognize that untimely motions may be considered by district court judge if there is good cause the problem however is there is no good cause in this case he says he has good cause because he doesn't want to file frivolous motion he didn't know there was a basis for his motion until the government in essence according to him screwed up by not being able to get in this consent form and at that point it's the first time where the scope became relevant because his oral can sample is much less than is written consent so why isn't that good cause well first of all you want to be at the time of trial the government's focus is to prove each of the elements beyond a reasonable doubt for each of the charged defenses are focused on getting that written consent form in will go to the sufficiency of the evidence it would not go to whether or not this motion be raised but regardless of the fact it would if you didn't have the consent his argument is if you don't have the consent for now i've got a good faith base with a good faith basis focuses on the oral consent he's argu that the scope of the oral consent is more limited than what he knew prior to trial the problem however is that the record does not support that what counsel doesn't mention in his conversation of the district court judge if i can refer the court to documentary one eighty one pages six through twenty you see defense counsel stating that the agent testified that the agents asked to look at the phone he mentions this phrase look at the phone eleven times what he doesn't mention is that special agent glass of the federal bureau of investigation testified doc one eighty page eighty nine that he had asked mr corey also to allow the agents to quote examine the phone that's glasses exact words examine the phone you don't hear counsel mentioning that you then look at detective perot's of the medley police department he was a translator he testified on direct examination documentary one eighty page one seventeen that the officers at the agents asked to look into the phone so now you have examined into radically different from this characterization look at the only time the wor look at even appear is when defense counsel is cross examining detective perot's and it was defense counsel who recites the phrase look at repeatedly four times the first time he and a friend sick a forensic examination is of a completely different nature along as a forensic analysis to it's not in the record your honor so i don't have that information as to how long i mean it seems to me to prior's point why if you're looking into the phone if you say you want to look into my phone and i give you my phone i think you're going to scroll through it and give it back i don't think you're going to perform a full forensic analysis up i think in that situation your honor when we look at the facts it appears that mr corey also did understand exactly what officers were trying to imply because he didn't impose any sort officers to examine the phone so beyond that the record shows be examine the phone and into the phone the words look at come from defense counsel did a president ever utters the words look at and that's different from the argument he's trying to present here but the fact that corey also made all these steps if you want to the ages look at the phone in his presence he could have done it right there at the pro intermodal facility not drive thirty minutes to the f b i headquarters but it's a government positions this year and what we do know is that he deleted the contact information the photographs the text messages the call logs between him and all the other coconspirators and it's a government position that he did this because he wanted to divert law enforcement attention because he believed that once deleted it's gone so  enforcement looked at his phone found no evidence of his communication with these coconspirators that helps him out it's the same reason he told law enforcement that he had actually driven the texas in a theft occurred in texas because if that's the case it shows that he's essentially the victim in all of this that he was oblivious to any of the theft so this just kind of stacks up in his favor in terms of what his defense is ultimately going to be that i have no idea what's going on so the governor's position is that he knew what what was being raised by defense counsel for me today in that argument your honor in regards to the sufficiency of the evidence and whether or not the deliberative ignorance instruction was appropriate government's position that it was appropriate when we look at the evidence in the light most favorable to the government making all reasonable inferences incredibility choices in the government's favor the conviction is the evidence is more than sufficient here what we do have based on the record is that on april twenty second twenty six two hundred twenty two pallets worth of merchandise stolen perfume was taken from a truck driven by cory also and unloaded and then loaded into two rental trucks that ultimately went at nightfall to mattoo to his residence on evidence she was involved in that no evidence that she was involved in that it's correct your honor where you get her knowledge i mean the first piece of evidence you have is when the officers arrive and she says i don't know they're part of the focus on the knowledge your honor is the fact that she owns the property she's lived at the property for a number of years that she has control of this property because the governor's position is when we take a reasonable and if we can reasonably infer individuals engage in the theft of this type of cargo are not going to unload this cargo on property without the owner's consent because there's always the risk the owner can notify law enforcement of any serious her husband gave her ex husband that was not in the trial record john and that's information that was presented outside the scope of the trial transcript so why shouldn't she get a new trial based on newly discovered evidence of her ex husband says she didn't know anything about this it's all my fault is that on that argument your honor is the government's position is one that this information was known to her prior to trial this was information that she could  due care and regardless it's not going to affect the ultimate sentence if we can refer to the court if i can refer the court to documentary one seventy eight page thirty defense counsel rep tells the jury in opening statement that mattoo to a trusted someone who put all these pac these pallets on her property that she just trusted someone to do that and no point is defense counsel like identify who this mysterious individual is but as it appears to be consistent with the ex husband is a party to all this why wasn't she charged with you know i think based upon the government's decision in looking at the evidence we were going to focus on the receipt in possession as well as the false statement as the basis of the charges in terms of whether or not we charge conspiracy your honor it's it's a prosecutorial decision it's just a decision making in terms of that knows that he stores items on a property but he lists items such as trucks and flat beds that's different from twenty two pallets they're stacked six feet high for an individual who is only five feet tall i mean you can look at the evidence in this case and come to the conclusion that she knew there was property that was coming on her property and that it was covered with a tarp six feet high and it shouldn't have been there but where's the evidence that she knew that it was stolen property that it was stolen property which were were when i go to look at the transcript where is the evidence that establishes that she knew that their property  nervous hostile to officers and then when they asked what was underneath she exeter residents pulls a lot of people are nervous when confronted with law enforcement of course runner but i'm not asking the court to affirm the conviction solely on that basis i'm asking to take that fac conjunction with everything else or nervousness in the political answer critical determination though is whether or not she knew the property was still warm she knew that i mean you can infer that they brought the property there and that you know it didn't belong to her husband and that it was there for five days when as far as she knew that the property was stolen the government's focus on that your honor is the false statement the fact that she exeter her residence pulled up  it was she said it was olive oil and it turned out to be perfume correct and that's it not only that your honor it's a fact that there's nothing in the box that indicate that it was all of oil the fact that she would have no reason to lie to law enforcement unless it was not i don't care he doesn't care she doesn't care they don't care we she's speaking on behalf of someone else saying this property that's that you want to look at not that you've established any claim to it that you just want to look at we don't care so the government's perspective you're on a base on that statement based on her statement after the fact to the government shows that she was she had actual knowledge or that you purposely contrived not to learn all the facts in order to have a defense if i could circle back around to the question you had asked about the motion for new trial the reason that's not appropriate is that the governor's position the defense did not exercise due care in order to ascertain all the facts if they legitimately did not know some of these details in the affidavit from the ex husband again documentary one of the four dash one page two you see that the ex husband states that he had spoken to the public defender's investigator who state who asked him on a speakerphone if you know roberta oh mabel elysia oh by their first name nothing in that af for him to state just openly that they had no knowledge is not sufficient because first of all it's hearsay and speculative we don't know what she knew based upon except with what's in the record for him to come out and say she had no idea is insufficient because all he can say is i did not tell her but even that type of statement would not come in in a trial and beyond that your honor because the sentence imposed on the would be on his part in another case if he was charged you wanted to i can only said i'm not  correct and the government's position is that based upon her instrumental role in this what were not for her allowing the property to be this twenty two pounds to be on her property the conspiracy to essentially fall parkas they would have to put it somewhere in office recommend honor but as the district court had noted in the sentencing record documentary one eighty seven page thirty that regardless of whether notwithstanding the decision a as to the role of just two level reduction for level reduction the court would have still imposed a twenty four month sentence on today so ultimately the twenty four months sentence is reasonable but to date does not challenge that as being unreasonable so the court so the government would ask the court to affirm it on that basis it is unless the i consider the defense responses to the questions asked of the government the reason that the consent was not that the oral consent was not limited by mr choreo show was because his understanding was as the court has indicated they scroll through its phone and he thought he was prepared for that second judge even though i never got to it the government mentioned the statements given by mr koryo show which i raised as my second objection and all i would say to that is that question should shape the narrative that's why we don't allow leading questions on direct mr choreo show was never asked when did you leave for texas he was asked when you left the yard thank you very much  thank you for them honor what's been ignored has been in and was highlighted by by the renewed motion for new trial and documentary one ninety five and not only was mr napoli's af davit corroborated by the government's own disclosure and in essentially finding out that mr annapolis in fact had been present based on the on the cell site analysis win two days home on april twenty second when the pallets were delivered in addition it showed based on the cell data that mr napoli's was in fact in touch with other of the  were in fact charged with stealing the the perfume the same name and and his affidavit that she took the fall for him and it was he was the it was all his doing is charger on it but i'm not certain judge and the court pointed out a critical question what did she know and when did she know it and it appears that a lot of the so called evidence to show her circumstantial evidence from which it seems a jury could make this conclusion right i still believe it's lacking with respect to the knowledge i asked the court in a trial she didn't say her ex husband she had put any happily thanks mr fenn i see you were appointed by the court to represent mr corey also the court appreciate your service thank you