all right please call the next case for argument twenty dash thirteen for three from the southern district of iowa united states versus julio hernandez appreciates your willingness to accept the appointment under the criminal justice act in this case and you may proceed with your argument thank you your honor my name is rocky coleman represent the  mentor named carlos madrone oh in terms of way the cross examination was developed throughout the course of trial the theory of the defense was that the government had not established actual knowledge of what miss  has had of the nature of the substance and that lack of knowledge was not was not shown by what the government had presented during trial surgery in closing argument the defense is allowed to make interpretations of the evidence that either is presented or is not presented the key witness here was carlos madrone there was no other witness that was presented by the united states that and so based upon that record we absolutely have a legitimate argument make that they had met their case that's what any defense lawyer should do is to remind them of what the government's burden of proof what's the evidence that they didn't hear that's  the case was tried as an actual knowledge case so we get to closing argument and the one of the st things that the government does in its own st opening or closing statement is they point out that quote i haven't presented any evidence to support my theory well i don't have an any duty to present evidence i made an interpretation based upon the record that was present which was fair which was in my ease waitress that was offered to go on a business trip which was unrebutted by the way and that essentially what the argument was is that carlos the drano who would also testify that all of his previous trips had been by himself that he had used women's clothing as a typical means of transport in case he got caught and so what was presented to the jury was absolutely based upon the record not some wild theory or some whale wild hypothetical as to what they should do and the government faults me for not present per presenting evidence well that essentially is saying i failed to carry my burden what i have to do that i made an argument based upon interpretation on the evidence that was presented and then in rebuttal essentially the government basically suggested i'm tricking the jury they said that i'm trying to distract now the term distract is is is a loaded term when it comes at rebuttal and of course this is the problem the court had in the united states versus holmes the smoke and mirrors why is that so difficult because it's one thing to say it would have been perfectly appropriate for the government to say is that you know these issues are raised but let me show you all the facts and the evidence that you can focus on when you suggest that one that i want to distract them that i'm trying to hide something and then you couple that with repeated and rhythmic repetition of how i want them to forget the evidence it does call into question that i am especially at the level of rebuttal and this is something i think the judgment best lawyer pointed out in holmes is that there's no opportunity for me to respond to that i'm now as i indicate the it was not objected to during closing statements i mean as the court kno closing statements that it's always sort of an issue in terms of breaking up the rhythm of opposing counsel it is subject to plain error review but this this is not a case of overwhelming evidence your honor there was no admissions on the part of the defendant there was no direct  other testimony that either from this restaurant owner in california or anyone else that she knew there were no admissions they point to some a big us text messages in terms of the things but as i pointed  in closing that had she talked about ice or drugs and she's having a conversation with her spouse she what you refer to them as drugs because she didn't know that she was going to give that information up and so it was a deliberate indifference type case right and that was sought and that also gets into and so again i think in terms of the us being able to have an argument that was a legitimate argument i think it was really somewhere i would just quickly note that it was not at all similar to the united states versus smith case that the court that the united states cited in the supplemental twenty j letter that case the lawyer accused the the officer that he lied and so in response the united states gets up and says the defendant called the officer a liar that's perfectly responsive i didn't make a wild argument that wasn't supported by the record i made an argument that was based upon them failing to meet their burden of proof the jury was entitled to evaluated as such in a jury was entitled to evaluate that free with any installation on the part of the sovereign that i'm trying to trick that i'm trying to distract and then i'm trying to make them forget that is really the crux of the case we've asked the court remain and on that basis in in terms of the in terms of the safety valve argument i think it's also undisputed that of the five factors the government agrees we met four of them the question is how truthful was she was we point out in the briefs and it's very consistent with one difference of course and one may have the district court it actually found that you could qualify for safety rule this is a relief so we do a reverse of that so we have the clear air issue but i think under these circumstances is clear error and that the court erred in placing too much weight on the jury's finding while ignoring the fact that she absolutely proffered to a that would have been sufficient to find willful ignorance that she had said i knew that there was something that was illegal stated she suspected that something illegal was in the bay you know no that's precisely the hossa courier where you get a package in a plastic bag and they say carry this move to california we can't say under those circumstances you didn't know that's what was provided that was know like he wants you to do he wants you to forget this that the next thing and just had a rhythmic refrain that she was the one who bought the ticket she was the one who paid for the you or she was the one who carried the bag she was the one who ran in the room and so would that have been permissible in your view i think a lot of your honor i mean so i think the issue is is that slope is about that he wants you to forget are he's making a personal and i think that's the core concern wasn't holds your honor is that it's perfectly appropriate to make robust arguments based upon the facts but what you're just you're saying that that changes the focus from the evidence to the lawyer and that's the objection will par precisely and especially when it's coupled with that i'm trying to distract them i'm not trying to distract them i'm trying to make argument based upon interpretations of the evidence and that's precisely the our concern the judge malloy had home smoke and mirrors it was exactly the type of smoke and mirrors argument that the court found wow we're on plane air review used today because you decided to we didn't object so it has to be a plane in or it would be a plane air and i would just act for purpose the judicial economy and the obvious there can be quite a review as well that there be some statement of whether is an appropriate comment or not i would ask that the court make a specific finding on whether it was inappropriate or not and then it can proceed to the prayer plane air but as a and i see it going over your honor so all if i could have thirty seconds in rebuttal of possible well why don't we hear from ms herrera st and then we'll see where we stand if you could meet your microphone mr argument which focused on discrediting the main cooperator in the government's case and weakening the government's evidence as a whole both of those are the sort of fair response to defense attacks on the government's case that have been found permissible or on numerous occasions the comments that were made here a are more like those found not to be playing there in the jewel case the cases which  the statements are found to be improper however statements did not affect a fair trial before you go on to that what do you think of the suggestion that mr cool that the argument really should have just been praised in terms of the evidence about descending she was the one who did this and that and so forth without this constant refrain about what the defense  you certainly could have employed a similar cadence here without referring to the defense attorney there's a natural repetition there about the defendant being the one who paid for the uber and carried the and rented the room and so forth but just to be fair did you use the term smoke and mirrors i don't recall that being in this transcript but maybe i missed it i did not your honor and it was mean or maybe argument and i did not use law i think you wanted to address whether even assuming there was impropriety in the argument whether it resulted in prejudice so you may proceed with the thank you yes even comments are found to be improper the government argues that the statement does not affect the defendant's right to a fair trial scares me for several reasons st because defendant didn't object the district wasn't able to give direct care and instruction to or court gave an instruction the arguments were not evidence and then there was the more formal written jury instructions that were read to the jury before they deliberated back with the jury to the deliberation room  a very brief time in the rebuttal closing the trial than two days the government does not believe that the cumulative effect of the remarks was anything significant in this case there was no claim of error in the admission of the text messages between defendant and rb for several reasons and st the overarching issue here is defendant has yet to produce any evidence that a marriage between herself and rb even exists and the burden rests on her to do so and without evidence of a valid marriage there is no marital communication privilege and the analysis  waived any privilege that might exist and finally the communications or even the further not protected because rb was a participant in the defendant's drug trafficking activity so the government any marital privilege that may have existed by showing there was joint conduct i believe my time is up and there are no further questions i support the firm conviction and th very well thank you for your argument strict color gives you two minutes for a bottle if you care to get thank you your honor in response to your question judge woman the particular language that was used was attempt to distract was the key word that was used and that's what argued in the l a brief if you're saying that i'm trying to distract that is that as a follow that that is like i'm acting like i'm a bit just and that i'm also trying to get them to forget so point one way and then get them to forget that's exactly what a magician said it was affective to ever rhythmic cadence that which this several points with which could have been done by reference to the facts which i have i'll still go are you sure that why is the phrasing as written here an attack on the defense attorney as opposed to an attack on the argument because they're saying that i'm trying to get there impugning me like what i was going to get out your honor is that listen i've served in politics and i've done the work for twenty years i consider myself sort of a tough guy it's not that my feelings were hurt but it's that it's the credibility and the sovereign's use of that i'm trying to distract lawyers don't distract lawyers point to evidence and i think in terms and then they say that i didn't produce any evidence for my theory i don't have to it's one thing if i offered a furious wired's attempt to get the jury to focus on evidence that's more favorable to their client than evidence that's less favorable their client every day your hon our way of saying they try to distract the jury from looking at the unfavorable evidence and looking at the favorable evidence it's another way but it's the same thing with smoke and mirrors when you're saying hey that's i think where holmes gets to your honor if you're saying hey this is something that you can consider you can focus on the facts but when you're saying that lawyers tempting to distract you you're diminishing that lawyer in the eyes of the jury and that's all you have is the bond that you have th can get there through the traditional techniques your honor arguing the facts and in terms of the series i would agree if i raised some theory that was totally unsupported by the record well then of course i think i'm inviting the air but when they're saying that i have the burden to prove evidence when i'm talking about an interpretation not meeting the burden of proof that's an accurate statement of law and i think that requires reversal especially at the level where the owns a rebuttal it was the last thing the jury heard and as the government ind it was effective very well thank you both for your arguments the case is submitted and the court will file an opinion in due course