good morning your honor as rebecca fish federal defenders of san diego representing korea mr garcia asked for a simple procedural safeguards to ensure that no member of the jury convicted him based on prejudice against mexican immigrants against people like him and indeed in this case there was at least a reasonable possibility that such prejudice would influence the jury for three reasons first the climate and the community there were widespread negative stereotypes about mexican immigrants in the community at the time and i ask you is does your argument sort of cut you off before you get to all three but just on that first this does your argument depend is a te orally limited in the sense or is it your position that every single illegal reentry defended in the southern district california from basically the moment president trump was was elected on you know until i guess what he leaves office maybe forever is entitle to have this is this kind of question asked or is there something special about that moment in time right after the election that you're focused on what your what your position on the from your honor my position is that it's both the time and the specific facts of mr garcias case that garcia's defense and these were known to the district court prior to trial he had knowledge to at twenty three through twenty six reading mr garcia's ex parte proffer delineating his defense mr garcia took the stand in his own defense and necessarily in doing so admitted that he was a mexican national that he had a prior felony conviction and that he'd previously been deported but those were going to be almost every  no frequently to not take the stand and such cases and frequently prior felony convictions are not brought out of individuals charged with three entry and this was clear from the district courts in limon a rulings as well  this evidence would come before the district court and so those facts that were sure to come out at trial played directly into the negative stereotypes widespread in the community at the time i don't see how your argument here can turn on the fact that your client was going you admit that you've been convicted of a prior phony that's the very stereotype that you're your client defendant in your client's position would be concerned about whether they admitted the conviction or not right so i think your argument can't be confined just to the unique facts of this case i think what i'm interested in maybe it's just i'm hearing more of going back to the temporal question so let's assume that we were to credit your argument for purposes of this case does that mean that that this all these stereotypes that your client was concerned about there's still out there why wouldn't the defendant today every defendant today from here on out be entitled to have these questions sort of they are and as this court and the supreme court and resolves have made clear it's a case by case and so the supreme court has been careful to stray away from bright line roles that x case always requires and this why dear and i think typically i said it in my reply courts do allow for dear interracial prejudice in these cases  do believe that the facts here are important because not only were the stereotypes present but mr garcia was going to admit that some of the facts were true about him and so i think he was very concerned that members of the jury in this border district at this particular time when mexican immigrants were being decried as criminals and rapists and murderers that they would think that with him and they would say i don't care what the law says i don't want you in my country and i'm going to convict you and they would not impartially follow the jury instruction and that was a concern here for a defendant say raising a different defense an official restraint defense where it would not that defendant may not testify that any prior conviction may not come up it's less likely that a juror would necessarily assume that about that person if they had heard it or would necessarily have your rule basically be any defendant who is going to testify then i guess i'm not clear the boundaries of the rule still the more you talk i'm still not clear on it because i think whether he the conviction or not i think the fear is that people will sue me does so that sort of washes out and so that maybe the issue is they have to evaluate his credibility first hand and that's the problem or where's the boundary certainly your honor and i'm not asking this court to  define a new role i'm asking this court to apply the rule and rosol is that in that that role is simply if there's a reasonable possibility that racial or ethnic prejudice would influence a jury the district courts denial of a request for blood urine to that issue is reversible error and the problem is i don't know how we can not have a rule if we rule for you because it seems like there are a lot of cases with mexican people coming in and i don't see how we avoid adopting a rule certainly your honor and this court in some sense has already weighed in on this issue in the context of batson and thus far said this court held that race is necessarily implicated in an illegal rancher prosecution where the defendant is a mexican national so this court has somewhat already weighed in on the issue i'm not asking this court to  possibility of race what of influence of gerry nothing unique about your client's case i think from the standpoint of the argument you're making other than maybe the timing of when the trial occurred and that's what i was trying to tease out of if you're placing a lot of weight on the order just not matter  know i do place way on the time in your honor so i do agree so why why is the timing critical the timing is critical your honor because that what was portrayed about people about mexican immigrants specifically in the community at the time of comments about people from a lot of other nations and different times i mean is that same rule going to apply that anybody who tries to enter the country illegally your honor i think to the extent that there's it's clear that there is prejudice in the community against a person charged with a legal very entries ethnicity or nationality and those facts are going to be central to that person's trial there is that least a reason what how's it central to the trial when in this case your client mr illegal reentry case he merely crossed the border when he was not permitted to cross the border the same law applies a matter where you're from i just don't understand how you can create special circumstances of this correct  i do think the special circumstances exist and external circumstances may be considered as this court has recognized and sarkozy and the supreme court recognize and resolve this and external circumstances here where that specifically mexican immigrants crossing the southern land border have been decried as criminals and there was a concern that we want if they weren't decried as criminals this was his fourth trip at least across the border illegally and that's that's what he's charged with doesn't matter who he is or where he came from well and your honor i believe the concern here is that the facts of his case and the prejudice that was known in the community made clear to the district court prior to trial raise the spot at least a reasonable possibility that someone on the chair my act on prejudiced against mr garcia against people of his nationality and ethnicity rather than act on the law and that is the concern at issue here that is the rule that roselli was developed to ensure that that doesn't happen that way that's a miscarriage of justice and i think here there was at least that reasonable possibility and the timing and the external circumstances the fact that this was not only these were not only stereotypes that were in the community they were lou proclaimed in the news at that time they were central and they may occur again there may be other times in history when such stereotypes are loudly proclaimed and if those are made known to the district court prior to trial and race or ethnicity of the defendant as as here an element of the charge against him facts that could play into those stereotypes are going to be shown at trial i think in those cases as well there would be a reasonable possibility that racial or ethnic prejudice what influence the church so i'm a little confused about how you think this should work if you win because you seem to be saying that the questions about immigration policy that the judge did ask don't cover this racial bias concern but then one of the questions that you wanted to be asked is do the jurors believe that a wall should be built which seems to me to be a question about immigration policy and not racial bias really can you explain this year i would note that at  eight the first question i propose was directly about prejudice against mexican nationals and immigrants and knowledge in the broad discretion district courts have in this area i raise my concern very clearly that people would be prejudiced against mr garcia as a mexican immigrant and undocumented mexican immigrant i propose either attorney ducted for deer or a series of questions about where we supposed to make of this question about whether a wall should be built between the u s and mexico your honor this was a border district mr garcia was accused of entering through the hills and i believe that that was one of multiple questions propose to get it concerns that mexican immigrants need to be kept out of this country and to your honor's free to question whether the courts questioning about immigration laws everybody we all knew what his campaign statements had been do you agree that he would be subject to a strike for cause in this kind of case i think it would depend on what he said during you know i'm saying we know what he said so take it as a given everything he said on the campaign trail right right before the election he's called as a prospective juror actually showed up and the defense counsel moved to strike him for cause to meritorious strike regardless of what he said before i think it would depend on what he said in response or said just this your court's questions during work here so in this case the district court opened for here by saying that this was an immigration case that mr garcia was charged with not being a u s national and then asked if anyone who had anyone had strong feelings  then immigration cases from applying the law fairly and accurately and i say that i think you know i don't have memorized all the statements but i think we all know what they are they're very derogatory about mexican nationals as a class in terms of the folks who cross the border illegally they're very derogatory they're based on stereotypes i don't think that if i mean i got to be honest with you from the district  espouses those views and then says oh but i can be fair and impartial against someone who's accused of coming from mexico illegally i don't think i would be persuaded so ok but you think somehow that the person could be rude rehabilitate his defense attorneys are of course entitled to make credibility determination is during that for dear and i'll confess that if i were a defense attorney there may be things outside the context that would give me pause ok at least want to know that somebody had those views maybe even just inches true terms of deciding whether to exercise your preparations right that's part of the reason for it here so the reason i start with that question is that it seems to me our case is and whatever that last supreme court case was the name of  gave me resolve that this thank you they're just saying we want the prospect that prejudiced might be in play amongst the veneer persons to be a somewhat above the spectacle of speculative level to be a reasonable possibility it's not not a probability just something above the level of speculative ness and so i guess i understand the defense's argument here there's a very prominent public official who  as a spouse views that i think would be disqualifying to sit on a case of this nature and so why and it's not like that person ran a very prominent political campaign and get garnered no support everyone just said those are hateful and we reject them in the persons that you know point zero five percent in the polls the president won the election grounded in large part on the on his position as to  immigrants coming illegally from mexico so why is there not a reasonable possibility that one or more of the video persons call might might share similar similar views about mexican immigrants that doesn't strike me as a speculative or or crazy notion of also help me with that i'll agree that the language is using results lopez is recent possibility i disagree however that it is something that is barely more than speculation and i'll go back to the only three cases of which i'm aware in which courts have said that inquiry into racial prejudice is required those are the significantly above the level of speculation whatever you want to call it that's reasonable possibility ok why isn't it reasonably possible that one or more of the newer persons called for this defendant's jury might well have shared view similar to those  think that the board here that the district court actually conducted is significant and is very similar to the one that was approving results of this you're talking about the question about immigration laws correct ok let's say i don't i'm not persuaded by that because i'm not so just come back to my question ok a very prominent public official has run on a campaign that has felt certain views he's garnered enough support to win the election of a new years called for this person's trial shortly after the election w there not a reasonable possibility that one or more of those people might in fact hold the same views of the candidate you're on right now i am going back to that immigration said that the border that was conducted because that was given almost dispositive significance in results of this so with respect to the reason i think you're wrong there is that the judge actually asked about prejudice against healing it's in the court was willing to accept that as encompassing prejudice against illegal immigrants from mexico here the question posed is strictly it's more like a policy argument and actually i'll just tell you that the language that gives me the zero comfort basically the question is put more generally so some people have very strong feelings about the immigration law and they feel so strongly that they can't follow existing law as basically as i as the court i'm going to give it to you i don't think that in any way captures the concern that the defendant here is worried about i don't think the district courts inquiry was quite that surgical i agree that's what the district court said at the very beginning but it various points when he was engaging the other jurors he referred alternatively to immigration law immigration enforcement were just immigration and the jury never says are you biased against mexicans right now he does not but at the beginning of the order he also acknowledged that this was a case involving someone who is charged with being a national of another country and so i think in the context that immigration jurors could only understand this case will involve someone involved it will involve someone who's charged with big enough from another country and that question about their president's statements were specifically about mexicans and how does that help us maybe he was from costa rica as far as the jury knew at that point your honor i think someone hit i think the the board you're into whether or not you can be fair and impartial if someone from another or or you lose that's what i hear you saying no you are right although i think i do think that's significant but it's also so you got besides that because i said i'm not persuaded by that all use the other issue is is the why discretion it just records have in this regard because they are sitting in front of jurors they're allowed to make credibility determinations as are the attorneys and with the fourth circuit on bond decision in barber explained is that there are costs on the other side of allowing specific were dear questions interracial sees the first is taking that discretion away from the mandating something that the district court may not see as necessary and the second is the potential of diverting the jury's attention to race where it may not have been otherwise and as a result that's why just records have the discretion to ask the questions that they see fit and to make those next thank you honor responding first the government's last point i would note that in both results and all church the supreme court held that it's far more injurious to allow a member of the jury who may act on prejudice based on race or race or ethnicity to sit on a jury than it is to raise that prospect before the jury and rosol is has indicated that generally district courts should allow this when the defendant asked for it even when there is not a reasonable possibility that such prejudice would influence the church the jury and to your honor's question about the district court question posed on immigration laws i agree it's perfectly possible for a person to say i have no problem with the immigration laws i'm very happy to keep out those people i don't like or to say i agree i have no problem with the immigration laws i'm very happy that they protect these people i have great sympathy for that question gives us no insight into what whether or not that person holds bias against my client and again here at the court never mention mexican nationality and the facts are highly distinguish from where the senate was not actually charged as an undocumented immigrant himself but was rather charged with alien smuggling and did not testify i do believe that there was at least a reasonable possibility here based on not only the central of my client's nationality and lack of immigration documents to the charge but the specific facts of his case and the very clear indication that there was such prejudice against mexican immigrants specifically in the community at the examples of statements made probably both by president elect trump and other times that for example victims of people killed by illegal or undocumented immigrants had been called to speak at large public  events and certainly the election and its results were well known so i think there is plenty of evidence in the record and i raise the concern quite plainly that i think there are people out there in the community who hold strong bias against mexican immigrants and i want to ensure that none of them are sitting on the jury i'm just trying to understand like the community i mean is the community here our whole country is there something about san diego do we need to have speeches and you about people from san diego what do we need to have for this evidence certainly your honor i don't think it has to be as narrow as to san diego san diego is a border district that voted you know i think slightly under fifty percent did vote for president then president elect trump with these statements in the public and further as an alternate which occurred in washington d c in one thousand thirty one the court noted that it may not be the majority view in the community that people are biased against african americans but as long as some people in the community hold that view it's important for us to suss it out and ensure that no one who is not going to act fairly sits on this jury so i don't think it has to be the majority of the community that holds prejudicial view needs to be the whole country here i think that it was a danger throughout the country it's especially acute and