hernandez conviction for the financial gain count must be reversed because it's failed to sufficiently cooperate that the offense was committed for financial gain they also committed prosecutorial misconduct by arguing that we know it's a business as to the sufficiency of the evidence then government cannot rely on an uncorroborated confession this quarter uses a two part test first the government must introduce sufficient evidence to determine that the conduct at the core of the of this occurred second they must also introduce independent evidence tending to prove tending to establish the trustworthiness of the confession here the cor things is financial gain and that is what separates this advanced the three year minimum mandatory from just failing to present and that is a financial gain and here there was no evidence of any type of all those for example in sherman our the material witnesses first of all testified that they expected to pay three thousand dollars but as to the explanation the material witness also testified i've never seen that person before so there was evidence that foreclosed these other explanations here you don't have that there is absolutely no evidence regarding the relationship between mr hernandez and mr him in is that was in the car there's nothing that they weren't friends they weren't relevant  they weren't relatives so there's nothing the for close the possibility that this was purely for of an element reason so what about the fact that the confession tape does that make it more just because it's a videotape does not make it trustworthy i think quite the opposite meaning on the videotape you can see how mr hernandez initially denied our involvement of these things and gave an explanation the videotape shows other agents over exact type of situation where this corpus to act i wrote was meant to be where there is course of tactics and the government has no other evidence of this financial gain element and that's at three forty eight u s one fifty six in those two cases make clear that the evidence that they have this independent evidence they quote has to be substantial independent evidence so even the smith case talks about it as well they don't have to prove beyond a reasonable doubt they don't have to prove it by partners but it has to be substantial so in this case there's simply nothing they didn't foreclose the the innocent possibilities they did not put evidence of some type of payment and some of the other cases of a light on well you know either the person involved had been smuggled for money in the past or the person that was actually driving  wasn't insufficient evidence still a government committed misconduct during some nation during some ation the government's argument on this just for the element of financial gain and it's that one thirty nine of first of all it's a compartment so we know it's a business we know it's a business the business of concealing you know means bringing them through the port that is nearly the entire argument that the prosecutor made on financial even more egregious in this case because the jury can interpret that as the prosecutor the case agent or the entire government basically that they say that the we have this individual lies knowledge that it's a business but i think i'd be here arguing a different issue that they should have done that but at the the problem is the phrasing of this argument and it made them permissible the say and actually the prosecutor does a good job of it in their response brief articulating the argument without using the we know the problem is they didn't make that argument below they said that we know and that shows a personal opinion on lester's other questions i'd like to state in time from about  the photographs are in black and white and i don't know if the court could see exactly what the compartment in this case looks like so if i need to can i protested and give those to the clerk thank you are you going to referring to those in your argument the plain facts in this case as a poet the case has to be viewed and most favorable to the prosecution whether or not it's reasonable to conclude that the evidence was sufficient this is not the irving standard the irving standard that different the fact that he's dealt with a crime that occurred four years earlier and the prosecution relied on the journal of the defendant to prove the existence of the crime this is not what we have here i would also point out that lopez  establish the criminal conduct and that the confession which is videotape in which the short this wasn't a long it was fifty five minutes but half of that was covering background information the defendant's statements because initial story was only about six case there's circumstantial evidence in this case first of all i argued from the evidence that there was others involved in other words this was a commercial venture because other people were involved in this offense and the thing confessed that there were other people involved in that itself is commercial in nature this compartment is designed to conceal people and used for the purpose of bringing in aliens there were two people in that compartment so the existence of the compartment has a commercial element to defend it is not the only trouble i understand in the argument that the mere existence of the container or the compartment would be independent corroboration of business nature because when you're talking about a compartment you're not talking about placing the defendant in the trunk of the vehicle or in the backseat of the vehicle or behind the back seat of the vehicle you're talking about a specially built compartment in the undercarriage of the vehicle and that vehicle is not registered to the person who's driving it and on top of that family that wants to bring them extensive family members across the border well the problem is you know gave financial gate and well the compartment the thing is not the registered owner of the vehicle so in other words venture well you have when you look at the evidence the evidence has to be sufficient it has to be viewed in most favorable light to the government when you look at some of the cases that were cited by the defendant in the government those cases are examples of where you could prove financial gain but they're not exhaustive so when you have a situation where you don't have a material witness you have to demonstrate and other ways other cry brady evidence official evidence here you have evidence in the record notwithstanding his confession that there were a number of people involved you have the fact that you have a compartment that's going to be used over and over and over again and the compartment is in a vehicle that's not registered to the defendant the other thing is you have a different individual the diff there's no the united states the other thing is that the phone in this case was unemployed there was evidence in the record to show that he was not going fully employed his employer came down and testified about the fact that the defendant spoke english perfectly and the defendant at one point worked for again in that case we're talking four years earlier and the only evidence was a journal here in this case we have to the senate driving a vehicle that contains a secret compartment and that compartment was designed to conceal any and there were two people in that compartment that it's professionally manufactured it's professionally manufactured it's not a one time use only it's it's designed to place two people and have an access panel over the person's face cover it with a rod cover it with that with purposes we're saying that all the evidence at trial in this case demonstrated that it was used for commercial purposes if the funding is a registered owner of the vehicle it's one thing but that's what i'm i'm getting to because it seems to me that when it all circles vehicle what is the find its connection to this car and the vehicle was registered two weeks earlier to another person well in the case probably a lot of these cases are happening where you don't have  trial who was a surety was that at one point probably a couple months while he was in the united states he decided to return to mexico so this is a situation where we don't have a material witness we have a situation where the compartment  critical to the issue of of a stablish in alien energy and also critical to the establishing dependence knowledge but also critical to the establishing the business nature of it i mean are there times when the government would say we can't prosecute you know expert testimony or something to that effect in the record well that if you just your statement we know that this is the case but when i said we know it's the case i'm talking about we the people in the courtroom were heard the evidence in this case know because i just talked about the compartment i was talking to the jury just like you have like i am now talking about the fact that this is a specially built compartment that was designed to conceal people news over and over again and it's at that point that he says you know it's a business because we have a compartment in this case that's where the context comes out and i want to point out that right after this argument i made another argument where i wouldn't use the word we know from the interview we know from the evidence we know from the evidence so you know that you know we know those words are are borderline words for all the reasons that i sort of has laid out there there's an amount i think we know i know and it's a i recognize it's a form of speech where you're trying to say you know take it all in is what you're really saying but it's the format of those words does put you in some jeopardy have to realize well i think the cases relied on by the defense attorney refers to where the prosecutor says i think the that it's ok to say i think we know ok i'm saying i'm saying when you say i think you're saying i think the person is credible when i'm saying we know from the evidence i'm talking about the evidence that was testimony yes this is a professionally done compartment this would have taken so long to make this couldn't have been made by the average sure i mean there is nothing to exclude it from the possibility that the material witnesses or his family made this and got someone a friend to drive them across and