good morning everyone welcome to the th circuit on behalf of my colleagues from hawaii all say aloha judge clifton judged and i are thrilled to be here in phoenix to see everybody just a reminder we do have our argument today there is a clock i want to confirm with the court and deputy quote there's a clock that we have the flashing red light today ok so when the light turns red it starts flashing now if you're  and starts flashing red maybe you would walk faster right there so a little more time here though when the light starts flashing red actually means it's over so i don't think i still about twenty seconds left it's over i will let you finish your sentence but i versus martina's jason good she and the rest of the cases are being argued so with that we'll go ahead and call the st matter i think counselor here united states versus alvarez marino think has been ruled upon by this court or the issue has been decided by the court and that's with regard to rule forty the rule forty three issue which case decided that issue such as that was unpublished correct yes so that does not bind this panel doesn't it does not your honor i do i do believe however because i was the attorney on the  the government is asking i think for much more than what the defendant is asking for the defendant is asking to be present when the jury or when the judge returns averred the government says in essence no there's no there's no rule forty three dollars requirement that the defendant not be that the defendant be present when the judge returns a verdict i think that's going way too far what sanchez ochoa said was unless it the defendant can show that is substantial rights were effect or words rights were substantially affected been there there is no air i would ask the court to find that rule forty three is violated when the when the court returns verdict but unless the defendant can show that his rights his substantial rights were affected that then it's not reversible error that's what the court your nd argument but let me ask you about this one real quick yes what what remedy are you seeking that i assume you can't show player prejudice which is a tough standard what should we do well i think you should make clear that rule forty three applies to bench verdicts because the rule does not exclude explicitly say that rule forty three dollars over the right of the defendant to be present is specific in rule forty three dollars in fact the the prosecution argues that it's not and the reason they do so is because the rules provide that the judge can issue a findings and the conclusion we're you're  asking us to say to reject the government's position rule forty three was not violated to say the rule forty three was violated your candidly said your client wasn't prejudiced but you'd ask us to say that that's not necessarily going to be the case every time in the future exactly we don't we don't make hypothetical decisions do we i mean are you asking us to announce an advisory opinion because it has no effect in this case no i don't think it is of an advisory opinion i  acknowledged there is no substantial prejudiced your client no no no harm so no foul this far is your client's concern so what is there for us to decide i think you should decide your honor that there was a rule forty three violation but that in this case the defendant's rights were not substantial why don't we just jump to the bottom line matt i think you really are asking for a hypothetical advisory opinion i don't know that we have the basis for doing that what i'm asking the court to do is follow such as which is granted it's a memorandum opinion but i think that's a good result and actually a good decision on the facts what if we were to do what the nd circuit did i want to get your take on that case and they think it's pronounced kennedy i might begin the pronunciation wrong but in that case the nd circuit said well what should happen is there should be some sort of public pronouncement by the district court actually have a hearing in this very odd situation that we have in this case court to go back and actually set a hearing to pronounce the verdict i think that would be appropriate i think the defendant ought to be present when the judge renders a verdict because that's what it is even though it's called findings of fact and conclusions of law it still is a verdict and i take it that would get around the advisory opinion concerning that judge clifton has exactly exactly i'd like to proceed to the nd issue again there's been some decisions by this court with regard to the on availability of witnesses between the st and the nd trial in this instance this court decided united states versus rodriguez which held essentially that the government cannot delegate to the attorney for a material witness the notice and information about what to do in order to be present for trial in this case mr abbott is wanted the defendant or excuse me the material witness to be present he objected st of all to taking of the material witness testimony by deposition he objected to the release of the material witness because he knew as even the government concedes that when those witnesses  released they're released to ins and they're immediately almost returned to mexico he objected to the release even after the material witness had been served with the subpoena and he objected to the use of the videotape at the trial on confrontation grounds the government takes the position that if we take depositions we can use them if we simply notify counsel that counsel for the material witnesses that their testimony is going to be present that's not what happened in this case before the st trial sometime presumably about sixty days i think before the  trial the government sent a letter to the material witness attorney with a copy of a letter directed at the the material witness and when they didn't get a response they went to the court and said judge we haven't heard from either the defense attorney or from the material witness attorney or from the defendant we want you to make a finding that the witness is unavailable and allow his videotaped deposition between that trial and the nd trial this court decided regas and rodrigo said essentially it's not enough to simply provide this information to the defense attorney the government has got to make a good faith effort to contact the material witness and try to obtain their presence for trial but what i mean here the government subpoenaed the witness they tried to communicate with him through his attorney they sent process letter to the witness in mexico my understanding is the witness had said that he did want to come back it seems to me that the only alternative in cases like this would be to keep the material witness incarcerated what else could the government in your view have done here beside incarcerating the material witness i don't think that is the government's only option the government's option can simply be to parole the witness in and allow him to be to remain in the united states pending trial in this instance it was only six months about six months between the time of the defendant's arrest and the time that the st trial occurred so there's obviously some some things that the government can do besides simply putting them in jail and there's they didn't attempt to do that they simply asked for the witness to be released once the deposition was taken because the standard procedure seems to be you do the deposition you get the these material witnesses out of the country and then we'll use the deposition in this case after originally is if you suggest is well let the person who entered on lawfully disappear into the country and and that way accomplish unlawful purpose i mean and i have a hard time understanding how that's a rational alternative the government should encourage i don't i don't think that that is the alternative if the court please what's the alternative i heard the the alternative is what is often done when the government wants a witness who is not a citizen to be in the country for some period of time they simply parole them in the microwave exactly what i sad he's allowed in the country he disappears thereafter and he's accomplished his purpose of unlawful entry the can but i don't understand how the government can be expected to adopt that does not turn it if the conditions of parole frequently require the material witness to maintain contact with the government so that they can be informed of the trial date and what they need to do to be present for the trial if it comes to it it's not always the case that if you release a person who or parole a person into the united states that they're simply going to disappear the government has ways in wilmington have somebody who was prepared to enter on lawfully i have a feeling that a paper that says you're supposed to show up at this time at this place may not actually bind that person we see a good number of cases of people that have overstayed their welcome and it's hard for me to anticipate that the government would say yes to making it easy for somebody to do that well by the same token then it seems that the court seems to take the position that if you tell the defendant or the material witness you may be needed for trial so keep in contact with with your attorney or keep in contact with us so that we can call you that there's absolutely no way that that witness is ever going to come back that that 's not the only alternative as i see my time is up we'll give you one minute for a bottle thank you good morning may it please the court my name is rewiring i'm an assistant united states attorney here in the district of arizona this court should affirm the defendant's conviction for one count of transportation of illegal alien because there was no plain air and as the defendant has conceded there were no substantial rights that were violated when the trial court issued its finding of guilt in a written order furthermore the trial court correctly decided that the government had demonstrated on availability of the material witness through reasonable good faith efforts to procure his presence at trial as to the st issue the defendant has failed to show plain error and the court does not have to reach a finding that rule forty three is violated by written order since he has already conceded that there were no substantial rights violated  we would ask the court to to find that that is the case but just to make sure the government's position here is even if rule forty three was violated this is not neither structural error nor constitutional error and thus in order for us to send it back for the defendant to be re sentence we would have to find prejudice yes that is the government's position in this case counsel in your view of this case when would it ever be prejudicial air in a bench trial to not have the defendant present when the judge announces the verdict either in court or by order i think that it would i think in this particular case if you look at if you look at the record the defendant had almost a full year where he could have objected to the written know i appreciate your argument as to this case i guess my concern though is that if a district court judge says you know i would have a standing order that says and we do a bench trials i know it's the verdict whatever i want to announce it and the defendant in fact i'm going to exclude the defendant from the courtroom because i don't want to look at perhaps in that scenario that your honour's talking about if if the defendant didn't have the opportunity to object to a written order which is what he did have that opportunity in this case i could see a scenario where a trial court judge simply says i don't want to look at you i don't want to write i don't want you in my presence and then i think then you're implicating another six i'm in an issue of having i guess a fair adjudicator under but under rule forty three though you don't think there's a problem with doing that you know the government's position is that rule forty three clearly applies to jury verdicts but not necessarily to bench  findings of guilt by a trial court judge and it's if you look at the rule forty three dollars as in conjunction with rule twenty three dollars and rule thirty one dollars it does seem to that the criminal rules do seem to treat the findings of guilt by a trial court differently than a jury verdict you would you would agree it seems very odd that the defendant would have the right to be arraigned read his rights which defendants always waive and i used to do your job for a long time you know so defense always waive the right to arraignment but that they would not have the right to be there when like the big decision when they're told like you're going to be a felon you're going to jail are you home that they somehow would not have a right to be there for that decision and is there anything a rule forty three dollars suggests the verdict which is the whole point of the trial is somehow less important than being told you have the right to counsel well and  to announce his decision in finding at that point that would be a stage of the trial the defendant would be entitled to attend a summit if the court's if the trial court had issue that i guess a minute entry rather than issue a written order called court together and he made a pronouncement and i take it the government wouldn't argue that the defendant did not have the right to be there because it wasn't a important stage of the trial i mean what i think is potentially different about this case is whether the trial court is compelled to have that kind of hearing as opposed to simply announced in the form of written order what those findings and what that decision is so i mention focus on why you think it should be ok for the judge to issue what is the most important pronouncement of the trial and simply written form i mean is and maybe you can help i know arizona is this your very own is under stress and has a large number of cases is that in fact a common practice at the district court in here in arizona i i can't speak to whether that's a common practice it certainly sounds as a cho which is the unpublished decision that mr leon referenced earlier the trial court in that case also issued of a finding of guilt in a written order and that panel had said that there was no it was harmless error in that case to do so in this particular case the judge did so as well and gave the defendant the opportunity to object to  to issuing that written order which the defendant did not do you know you've said that i was looking through the record did the district court ever say look are you ok if i issue a written order as opposed to you coming in here the had almost a year between the end of the trial and the sentencing in which he could have objected or could have said to the district court this is what i would like you to do and he never did that which  is why it falls in the plain air bucket i mean i don't think the defense counsel's contesting that i guess the question though is that you have two issues why it's not plainer and you say it was not wrong now i think that's a tougher argument for you the  one is that it was not prejudiced of this defendant and i guess where i'm getting hung up is assuming that it's not prejudicial to this defendant and he agrees with you on that point what concerns me about that as a holding is then going forward what's to prevent this from happening over and over and over again now your st point was not to err they can do it anyway because it's not an error let's say i disagree with you on that what's to stop district courts who are very busy i was in san diego it's a very busy district from just saying you know i'm really busy i got bench trials i just wanted e c f i'm going to e c f my verdicts and all these cases that just seems very odd to me that in this country even with all these computers and internet that we would not actually have a judge looks on the eye and pronounce the verdict what's to prevent that from happening if we agree with you in this case wouldn't every district just change their standing order so we could always do it this way for one thing i do think that bench trials are the exception rather than the rule in district court here but i think they're becoming you know their child porn cases for example are often bench trials so you can imagine a situation in a child pornography case where someone has been accused of a pretty awful crime let's say they're acquitted is there a public pronouncement in those cases that you're acquitted or when they find out just by e c f i think under the case law in this circuit i i don't think it's error for a tribe and trial for a trial court judge to to do that in its discretion especially if the defendant is given the opportunity to either objects or not  object to that so you think if the standard were harmless error in this case rather than point you think you'd lose because you said there's no error on the st part so you would win if it's harmless error or play or correct under your view of the case yes under our view of the case the government prevails under either standard because there was no error we're not conceding error and that there is no substantial right that was violated moving on to the nd point  is as this court has already noted that the united states did make reasonable good faith efforts to procure the witness at trial there was a lot more than simply notifying the material witness attorney in this case as your honor has noted that material witness was subpoenaed he received letters both from his attorney as well as fed ex from the government prior to the nd trial and  there were all it when the court looks at all those factors it will find that there was reasonable good faith efforts that were made to ensure the material witnesses present at trial are thank you very much the st address as is related in the in the record was that the material witness said he lived in a certain town in a certain state in mexico that was the address that was given a town a state in mexico the government said that they found in an eye to thirteen which is a form that you should be prepared for undocumented aliens that they had a better address in this instance they had a street a town a state and the republic of mexico and they sent this letter fed ex no return receipt requested to that street that address that and it was only thirteen days before the trial i would submit to the court that that is as this court criticized in reus that's just going through the motions that does not constitute a good faith effort to try to obtain the presence of that witness for trial of the defense in this charge i think it was done too late i think the the address was too vague to be effective and i understand that there's some difficulty sometimes with getting addresses good addresses for people in mexico but that's something the government should keep in mind and do right at the start of the case and big they take the address off the eye to thirteen which is filled out usually by a border patrol agent and if they're going to use that person as a witness then the government has an obligation to try to find a reasonable way to contact in this instance i submit that the fashion of that that was not a reasonable good faith effort to contact that witness