good morning your honour's may it please the court my name is just a carmichael i represent a chinese immigrant who came to this country in two thousand and one and who was swept up in the immigration sting operation that is the subject of this case the only issue in this case your honour's was the issue of men's rare that is that my clients attempted to obtain a green card illegally with the knowledge that it was illegal withdrawal that's correct that's correct we in fact argued against the withdrawal instruction but the court gave it anyway we did not argue withdraw the government in its prosecution of this sting operation arrested d briefed prosecuted held and then deported a witness who had have a million right in this situation i suggested them to the district court and the district court provided absolutely no remedy but what i would say your honor is three things to that first of all we're not asking that someone be held indefinitely  the government makes these types of decisions all of the time when it comes to prosecuting cases and i mean for example in the case of confidential informants when the government doesn't want to reveal the name of a con informant the government has the choice whether to prosecute that case or not so these are not decisions that the government doesn't regularly make so number one they could have chosen not to prosecute the case but secondly they could have permission of the court to release the witness they could have asked for early appointment of counsels of the counsel could interview the witness and certainly your honor and i think this is an important point in this case they could have indirect way through other witnesses it was your honor and that was that was admitted because it was an appropriate evidentiary ruling but it wasn't admitted as a remedy for the constitutional senator because it was not an adequate remedy your honor when the basis of the government's case is knowledge that my client knew all along that this was an illegal endeavor have stated only that the he told the aforementioned individuals that this was legal however your honor it was clear from the statement that he didn't recall who my client was that time and the agent testified that he didn't have any information to suggest that my client was traditional differently than these aforementioned individuals and i'd further point out that the case law is very clear that a defendant doesn't have to make a  showing of material it's exculpatory evidence because that would be such a hair high burden when we don't have that witness but just a plausible showing so i don't think that it's a a far  in terms of you know if there was an opportunity and in fact the evidence was presented in directly through some other means that we look at the way we're required to consider that right of course your honor and that should be considered  throughout this case the government continued to assert that my client knew all along that this endeavor was illegal and surprise and i did not your honor what i did find surprising was that when there was a witness who could directly  so for the government to argue that that he must have known all along it was illegal and we have a witness who could testify that he told him it was actually legal would be saying that he told them that we don't have any that we don't have direct evidence or honor but we have very clear circumstantial evidence in this case that that would be that that would have been what he told my client specifically was anything that would occur if you from getting customer in a scheme essentially someone else who was told it was legal that statement that he was told it was legal would have been a self serving statement of that witness and he would not have been able to present reason that the agent's testimony about that statement was admissible however it's just simply not an appropriate substitute for the testimony of the actual person who guided the client through this process and who told him it get i agree it would have potentially helped to have that evidence and we did get it out through the agent but again the government continued to assert that he didn't even mean what he said when he said it so even though we were able to elicit that statement from the agent the government continue to assert that he didn't actually mean that it was possibly mistranslated it was taken out of context and the defense was unable to offer that that witness who said it to to rebut that assertion and that goes directly into my second issue your honour's and that is that the deportation of this witness was detrimental to allowing my client to fully present his defense but the government's offered absolutely no adversity with respect to this witness that it deported when one of their main pieces of evidence in this case was e mail that was purportedly sent from this witness the government was able to construe all statements of this witness that it didn't like negatively and deny admission of those statements but then construe statements that were favorable to its case in a way that helped theory they were allowed to introduce this email even though it was not properly authentic aided even at a prime official level and because it could and even though it contained an additional level of hearsay this e mail from the witness was not properly authenticated for two reasons your honour's first the evidence showed that e mails that were sent right before her or at some time before the e mail in question very specifically said i didn't send the last e mail it was sent by mr lu who was using my computer i don't speak english but i have relatives translate for me so the mere fact that the e mail that was introduced was written in english and this person didn't speak english necessarily means that someone else drafted and sent that e mail so that's the first reason that it can't be what it was purported to be but secondly we now know then that this e mail was translated and fo translated evidence to be and miss what has to be done by a competent translator whose qualifications are known and in this case we didn't know who the translator was in fact there were probably multiple translators of the course of these e mail exchanges and so therefore it was not probably authentic ated because we couldn't assess the reliability of the translation so the government says that given the circumstances of this crime solution there and i believe that was overcome and more we have in black and white an e mail saying i didn't send that last e mail someone else uses my computer someone else uses my e mail and in fact i don't even write read or write english or speak english muslim or remembering i did the government agent testify that after there was this thing about who's using the e mail they were and they changed the e mail and they did your honor and they they further suggested that the accuracy was clear e mail that he said was previously sent once by someone else also contain facts that only he and dr we would know and furthermore he can it actually assert that it is an e mail address that only he and dr we use o the court actually is we raise the here's the issue because we didn't know who the translator was and when a translator is that the case was very clear on this point that when a translator is not acting simply as a conduit for the language then that statement becomes not the declarant statement but the translator statement so for example of the translators summarizing what the declarant would say and not just being a conduit for it would be the translator statement and the district this was not just an abuse of discretion in this case but a fundamental issue of fairness again the government was able to heavily rely on this e mail from this witness that it deported construe that statement in the light most favorable to it but the defense when trying to present testimony that this witness provided favorable information to the defendant continued to deny that he even said that or that it meant that and that it was out of context and we were unable to rebut that assertion adequately and finally your honour's i would say that this is not harmless error because the government itself admitted that it went directly to the heart of the defense they admitted that the briefs i didn't actually put this in my briefs but i would like the court to take note that the jury deliberations spanned several hours and the jury did ask a question about intent so it was clear that the jury was thinking about this issue it was not harmless and finally your honour's with respect to the third issue i raised it's the improper judicial interference issue i don't have a lot to add other than what is in the papers i would just like to know that at trial i did object to the court's interfering with my witness and there were two instances that i found particularly egregious which was one the court not allowing the translator to translate the answer of my witness he said that it was discursive and non responsive but he didn't know chinese it just sounded that way and secondly that the court interrupted the closing argument three  morning please the court christopher carries on for the united states i apologize for the time and confusion have been point double duty this morning and i didn't check in when i came in at a minimum this court should affirm the district court's denial of mr z material favorable and non cumulative is correct the government would urge that the court go a step further and in addition to affirming also clarify that in the fourth circuit when evaluating the government's responsibilities in enforcing the law and carrying out of the duties of the executive branch and recognizing the right of this allegedly wrongfully deported material witness whose would otherwise be languishing and when he or she could be sent back to their home country on materiality in favor ability judge diaz i think your point here is that even granting everything that miss carmichael has said about the one line about what mr we said to the four individuals that was in the report there's no evidence that that was the more information was conveyed by the cards were legal and there's no suggestion that dr who he was telling all of his client in the in the fore that he was telling off his clients trying to mislead them to bring them to town and that they're going to government office and the only these four that this is legal but tell everybody else something different it's do we have any reason to think he would treat part of his customer base or pitch it one way to some customers and one way to others no i think i think  in a hypothetical world where he did say it i think he could be trying if you read it very narrowly he advised that andrew's way of obtaining the green cards was legal which are very narrowly written is accurate and that they were legal green cards they were obtained through back channels but it wasn't like they were created on a figure but that's a different guess i really don't want to waste too much but that's where the different argument as to i'm simply saying if we're going to assume for a moment he said this and that what it is is someone cast doubt on what these people were told is there any reason to i mean i just thought you were more familiar with the record than i am is there anything to suggest these four customers were special he would have treated them differently assuming that whom mr zoo in this case made no apparent attempt to who was actually just down the street one mistress used trial was ongoing and who could have testify presumably whether dr wheat didn't did say that  could have testified what his brother in law's intent and understanding was at the time before the crime for the indictment came down could have testified that in the two years that he spent with his brother in law mr zoo he was  warned and i initially thought that was legal but then when i got to that hotel room i changed my mind you should be careful before you pay sixty thousand dollars and go to get this fake green card or get this green person this illegal process i'm not saying that i don't know he tried to offer testimony of dr and mr zoo it very well may have come in so i certainly agree would have raised any objections we would have but i wouldn't count it out on the question of the translated email i disagree with miss carmichael's initial starting off point which is that the baseline rule is that a translator is a company or conduit and in this court in this  would not be sent that e mail the problem is that it's not really dr we had somebody drafting the email on his behalf we except the premise that he could neither right nor speaking english that's correct but i  i accept that premise of course i would disagree though that there is any further in dish to think that someone has nefarious objectives in translating this email and in the case the two cases this four part test when there were in disha sufficient ition indicia of lack of reliability and that case the court was dealing with a confession where the documents and witnesses in testimony in that case it was from boss the bosnian war and there was a contention that the documents had even been created three years and the dates didn't line up for the documents that they were falsified or somehow planted in the war site that was later found and then later other piece of evidence a confession that came in due course said before we're going to allow the government to admit this translated confession let's make sure that the government's translator  doing was illegal it seems to me that in that circumstance or maybe if the rules don't indicate there should be some concern on the part part of the drug war to make sure that what this document is reported to be exactly what it is and i would  say that the point of the confession is is not necessarily that it's a critical piece of evidence but that there are there's reason to think or at least reason for the court to make sure that the person doing the translating  is doing it fairly especially if it's a government translator that's why we have court interpreters are sworn beforehand for the same reason you don't want to the appearance of a government translator who could be filtering in favor of the government was coming in this case that's not present there's no allegation that whoever was translating for dr who he had some nefarious motive was trying to misrepresent what he was saying how do we know you know that he or most secure e mail account what are we to make of this i think in context again it makes it it's not necessarily matter security it seems like it's a man who doesn't speak perfect english who relies on other receiving sending things or other people were sending things that were contrary to what he was trying to communicate i think that the idea oh the previous email was sent by so and so could be i was down the hall  d providing this information he sent it or are sitting next to him provide this information he sent it not if not i was sitting at the computer and typing it so again i just don't think that that factor ret ramps up any lack of reliability in the way that you have within a confession or an instance where you have indicators that documents for falsified or back dated or significant reasons that to distrust the translator enough that we have the concerns i've got i'm sorry to interrupt you is the inability of the defendant to be able to cross examine the preparer of this document with regard to the circumstances and reasons and basis for this listing of names i mean it would for her defense it make a big difference whether this person is just typing writing these names out from a list or whether or not he there's a particular information he's got with regard to each deciding whether or not to go to trial and the government expected the doctor we would have testified against them in other words it doesn't seem like he the governor had no indication that dr who he was  misleading his clients and or providing false information to the clients and the clients didn't have that information as that indication as to just by the fact that more than twenty pleaded guilty  d didn't none of them have raised this idea that we're going to do with this case i would say it's important background and it gets also to judge harris's question earlier which is is there assuming that  this statement in the the doctor we said the process was legal assuming that was made to those four do we have any reason to think it was not made to the others and one reason one indication that was not was that no one else has raised this the allegations you deported the one witness who might have been able to suggest that he was told that it was legal and i understand the reasons for that that seems to make sense to me but now on top of that you purport to introduce an e mail that is just  out he's got no opportunity to examine the witnesses into some very bright very flimsy circumstances and i was offered that was not to suggest that mr zoo doesn't stand into the room submitted his fingerprints and said yes i want this green card it was complete after he was told it was an illegal process it was complete after he knew it was a going into hotel room not a government office it was complete after he knew that he'd be paying forty fifty sixty thousand dollars for this green card so the idea that this piece of evidence was the linchpin to proving his intent and knowledge significantly oversells the value of this piece of evidence and in a court in government's closing argument and report all that's the point the government brought home to the jury and in miss car michael's closing she also had extensive opportunity to knock down the stock human and to say there's no indication that mistress you sent this we don't know what was said we don't know anything don't want to tie myself to that but i believe that's how the government set down the case around a lot and the evidence also showed that he was in a room with a dangerous man and could have very easily packed up his bags and left for that reason so just as an initial premise i wanted to dispel with that notion but i also wanted to point out for the court that this the court rule in the defendant's favor this is a very small universe of people that we're talking about who would have a material exculpatory witness who's deported and that seen just on a micro level with this case the government has pointed out that there were twenty four defendants in this case and that i think a close to twenty of them pled guilty and undoubtedly  dr may have been able to provide some level of favor ability to those other defendants however all of those other defendants and probably the reasons why they pled guilty was because they engaged in the follow up action after the meeting they either went back to pick up their green card or they provided money or they mailed documents or something and that's what we do not have in this case which is why the exculpate below the level of doctor we used statement is so high and so unique to this particular defend it and even in just the case law itself your honour's can see that there's not a wide range of cases that deal with this issue much less ones that have been ruled favorably for the defense so i think it is a very small universe of people that we're talking about where you don't have to speculate as to what their statement is and it goes directly to the heart of the defense issue again it's just the timing at the time the witness was deported the government didn't know where your clothes different that's correct your honor but the government didn't know that my client never took any follow up action after that tell me a new idea that it is a little tricky right for the government to have to try to figure out well i've got this witness he may be so this thing where if he also said it to this guy who we can't find for whatever reason maybe if that guy's defense turns out to be a lack of intent that would be relevant i certainly understand your point  defense is or not and therefore the government should have afforded counsel opportunity to interview that witness for further exculpatory information certainly the government itself isn't going to attempt to elicit is it a denial of compulsory process to know and that's the core claim right and so the idea is just hard for me conceptually the idea is that no one asked for compulsory process but still it was impermissibly denied doing of saying i don't exactly remember there was no lawyer in the room saying i'd like to talk to this witness and then the witness deported correct your honor the request for a compulsory process comes eighteen months after the person is gone can't be served that's correct you are to think of it right as sort of it's more like the government has an affirmative obligation this is a government and deny compulsory government discussed and i just want to clarify one thing first of all in the circuit the bad faith requirement has not been has not been established and moussaoui which is the case that mainly discussed that the balancing that the  alleged that there was no scintilla of evidence showing bad faith there's no official animas here on earth and we're not alleging that but the test in the sixty ninth and tenth circuit says that the bad faith requirement is simply the knowledge that the government has the witness has excluded tory information and the government reporting it anyway and finally on her i'd just like to say that the translation requirement doesn't just extend to confessions it is  that's absolutely not your honor this offense never occurred in that hotel room because my client gave his fingerprints not with the intent to destroy defraud the government but to engage in the past path of least resistance and get out