i want to say we have some very very sad news this morning judge time really of our court passed away he was ninety nine years closing in on one hundred years old judge really was truly a great saddened at this tremendous loss to the or in our hearts and our thoughts and our prayers go out to his being when we will all remember john is a giant among giants he was truly case in order to convict renal d'amato your honour's the jury at his trial had to find that he knew actually knew that the nine individuals hidden in the trailer that he drove up to the street a checkpoint in july of last year or there in that trailer now our principal submission in this case is that the evidence was insufficient for a jury to conclude without also reasonably doubting is touch on the sufficiency point and then i'll move to the reasons why we think that either of those two trial errors should motivate the court to it at a minimum remain for a new trial for you given to ask oh go ahead go ahead so i can i ask you i mean when i when i was going back over this case yesterday how do we i mean when we infer now edge this is you but also the government can we infer now is that this was aliens versus drugs i mean in that part of the world it's it's one or the other and does it matter ok tell me  have my question is yes sort of a sort of a root question how do we know what it was how do we know how can we infer that they knew it was aliens versus drugs versus who knows what the judge king i think that you you make a good point here this was a trailer it was certain to make a point i was just trying to ask a question you you raise a good point you don't make a good point i well taken so this was a trailer that could have fit people but it was a trailer that could have also fit drugs and it could also fit weapons and you know the the root of our case is that the evidence that the government offered here in order to support the inference of knowledge was weak it contradicted itself and most importantly it required  jurors to stack multiple speculative inferences on top of one another and i think what you know to be fair to the government what the government's argument would be is if you take our evidence in the light most favorable to us and you don't agree that there's any reason to still reasonably doubt it that i mean their whole case was that mr motto was there at the time that these individuals was were loaded into the trailer so if the government wins here it would be because you could reason a jerk could reasonably  that he was present when they were loaded into the trailer and therefore he knew that there were people inside i do think that the issue that you point out would kill any chance that they could rely on the deliberate ignorance instruction here because if he didn't if if the idea is that he didn't see these individuals going into the trailer and then come and of consciously avoided asking what was in the trailer and i don't think there'd be any way to say that there's people inside a supposed to drugs or guns but you know that the sufficiency here the thing that i wanted to point out in mr psycho's briefs go through very thoroughly why the evidence here is problematic but i think that the vest i can do to add to that is that the root problem is that the government's case here hinged like we've just said on the idea that mr martin was there at the time and that theory hinged on this inference that it wanted the jury to draw from the idea that one of the non citizens inside the trailer heard a phone call within earshot outside of the trailer and that the person who answered that phone call and said i'm here and i'm ready to take a risk according to this if you i'm a little used up who is there before they put these people in the trailer and who who is on the outside how do we know that he's overhearing one side of a phone call i guess if you could walk us through that very very late these individuals who are going to be transported or present with whom and then they get in the trailer and who's left outside if you can straighten that out yes touching go hard i can try to straighten it out for you but one of the problems is that the evidence in this case doesn't really straighten that out and you've recognized in cases before that one of the problems that the government has is that sometimes it doesn't ask the right questions and doesn't get the right  answers into the into the case and i think that's that's one of the problems here but so best i can tell but the government would would say is that the nine individuals who were at the stash house they got up around  forty five in the morning were loaded on to this trailer and the person there's a person who loaded them and he's also i think from the testimony the person who was giving food to them at least to mr albright the testified to that effect there's no basis in the record to conclude that there's not other people aside from these individuals that were loaded into the trailer outside of the trailer or just at the stash house that morning and so what i think the the idea that the government's theory presented was a phone call happened the person who answered that phone call was literally right there this individual mr already has heard that heard the person pick up the phone and then he overheard the conversation and i guess for some reason even though they were still right next to each other they continue talking on the phone i do think that using me is that he's hearing both sides and there's a phone call and i don't know whether he's on speaker trial and certainly subject them an egg it certainly was and i mean a good defense lawyer would tell you that that sounds like a good reason to doubt because i think that it's not clear on this record whether or not he might this could have been happening on speakerphone and you know there's multiple problems with mr albert the testimony and you're right that the speculation is intertwined with the sufficiency but the critical problem that i wanted to get to here that i think also runs throughout all three of these issues is that he didn't recognize mr matas voice and that's so critical because he didn't recognize the voice even though both of them were put in the exact same detention cell less than three days later and they had to face them as a hot right he says it's the driver whose identity he doesn't know at that time isn't the argument you're making that there's a supposition that the person being on the phone about yes i will take the risks that person is the driver that's the testimony right it's not that it's mother it's the driver who turns out that the that's the speculation yes as you go hard that's the speculation that's the thing that was not within this witness is personal knowledge that he was just assuming and we would we have you know there are serious reason to think based on his other testimony that it was reverse engineering death from the fact that mr mata was the only person there was only one person at the checkpoint where they were arrested but the point that i'm trying to make for sufficiency that so important here is that they were put in the exact same cell and he didn't recognize the voice of mr moggs as the voice that he heard outside that trailer less than three days earlier so what that means is even if you speculating about i think that this was the driver he can't reasonably think that anymore after he's gone and met the person that he knows to have actually been the driver and then not been able to recognize that voice as the same voice and so whatever else you think about mr robert the as his testimony the fact that he doesn't recognize the voice that he hears three days later as the voice he heard outside that trailer provides a brief any rational person a reasonable basis to doubt that mr matas the individual in the phone call because again that what the jury had to find was it was mr mata there otherwise there's no basis to put him outside that trailer and there's no basis to say that he to infer that he knew that these individuals were in that trailer so i think that's the critical difference  did it when was it the trial or was it replaced by another trial i really didn't understand the brief scene the conflicting on that actual well the actual answer chief judge owen is we don't know and that's important that brings me to one of the other things that i wanted to read it knowledge about the sufficiency in this case is aside from the point that we've just discussed which i think is is crucial it's also the case that mr abbott the this was one of people who testified for the government in this case two material witnesses and they conflicted with each other on every relevant aspect these of you this phone call the only do things that they overlapped on where we got up between four and five in the morning were loaded on to this trailer and then once the trailer doors shut and the truck started driving there were very few stops in between once we hit the highway straight to the checkpoint simone who is this other individual testifies that when we all got into the trailer it was already hooked up to the truck all but the aa's testifies that didn't happen until this phone call that only i heard presume own also says there were ten minutes  after we got loaded into the trailer all but diaz says as soon as this phone call that only i heard happened the truck drove away and so those are just minor in consistenc contradictions and so it would have to be that in order for the church to believe all but the s's testimony they would have to reject the testimony of the government's other witness who happened to be in the exact same vantage point at the exact same time and so that coupled with the failure to recognize the voice despite meeting mr mata face to face in a cramped prison cell really should convince this court that the evidence just was not here and i'd i'd like to take a minute i guess we've talked about the speculation and we can talk further about that as the court has questions but the valuable cargo inference is what i'm i'd call this of the government relied on you know that the people who were in this trailer paid a lot of money and so  the c e o s of any alien smuggling organization wouldn't trust somebody who doesn't know to take care of this precious cargo to whatever extent the court thinks that that might have relevance in a drug case it just doesn't map on to a human smuggling case because in the drugs you don't pay for them until they arrive at their destination it's that kind of transaction with non citizens they always pay upfront just like did in this case and that's just always the case every b s i've ever read and i've read a lot on this i mean every once in a while they pay seventy five percent up front but the fact is they pay and so there's it's is not the case that there if a person gets caught the people who need to get paid are going to get paid they have already been paid so what that inference wasn't even in this case but as this court has also recognized multiple times can't add anything to the sufficiency inquiry unless there's extra evidence of guilty knowledge on top of that and the things the type of things this court has recognized in all those cases adding weight to allow that inference to have any life things like conflicting statements implausible story obvious or remarkable alterations to the vehicle explanation for something that's proven to be false later none of that's present here in this case the only other thing that the government gave the jury besides this you know valuable cargo inference that isn't in the case is that there was this phone call that one person heard there was a a flat out binary choice case either mr martin knew or he didn't know and it's blackletter th circuit law that if that's the choice before the jury it's wrong to give the deliberate ignorance instructions that you held in  in front of judge and guard a couple years ago and it is just that that's absolutely what's at issue here and so i will i'll stop there and i'll respond on harmlessness after that mr patrick few comments made in the opening by defense st and that is our case is not that mr moderate was present when the aliens were loaded as a matter of fact there is no testimony today that in the record the testimony however does conflict with the two material witnesses in some part but not all part not in every material way as well as was alluded to a specifically they are in agreement that it took an hour and a half or longer to get from where they were loaded to the checkpoint even though there was just one listed and that was only about a thirty minute drive and i'll get to that in a moment but our case is not that there's no evidence or that the record and specifically addressing that one point to when the conflict on the phone call judging will harp on page two hundred and fifty two five hundred and twenty eight of the record the defense elicited from the st material witness quote he wasn't really paying attention that's where the material witness said that he was nervous he wasn't listening to all the sounds going on not matter there's evidence in the record that the canine in this case specifically alerted to both humans and drug cargo and i think there's a distinction between much of the fist circuit case law on this issue and the rd issue of deliberate ignorance that i'm to get st and finally judge joe and the conflicting testimony of material witnesses or when the trailer was hooked up there is a conflict there it's in the record and it is what it is however in the sufficiency issue the jury i had all that information in front of them when they reached their verdict but what i wanted to dress st is issue number three the deliberate ignorance charge that was given to the jury this is an abuse of discretion issue and there's a two part test on whether or not the jury should be charged with this deliberate ignorance instruction that is that the defendant was subjectively away or of a high probability exists of the existence of the illegal conduct and that the defendant purposely contrived to avoid learning of the illegal conduct that's from churchwell and saying judy says this is a very fact intensive endeavor so i want to deal with issue number three because it is so facts specific and i believe those same facts also go into the st two issues issues that hopefully will be a little more efficient a rgument we have here on the issue of should you know this was an appropriate charge to be given to the jury and the reason is the government tried this case as mr ma to do he knew what he was doing however is testimony elicited by the defense that clouded and muddy these waters to give you an example they hit the they hit the checkpoint was from out of at the checkpoint at one page for seventy eight dollars and shift change which is peak smuggling there's testimony  record that's not an accident and if you go look at the timeline on how long it took for them actually to get to the checkpoint the inconsistency is or across the board because if they were loaded in the trailer between four and five am and i contend we contend it was closer to four am because of some phone calls and the phone call logs but if they're in the trailer at four am in the early part of four am and they don't have a checkpoint till six hundred and forty five dollars they're in that trailer for two and a half plus hours close to three hours so mr mollett clearly was driving around and driving around hit the checkpoint at the time that he had to this thirty minutes issue that's elicited by the defense from a border patrol agent with no foundation that you know no where in college and what the traffic may be but it only takes thirty minutes to get there or page forty five of the record the defendant says there is furniture in the trailer no for ninety nine he says it belongs to a friend and he's holding furniture but the defendant did not loaded but on page five hundred the defendant admits that he had been in the trailer i don't know when asked if it was furniture forty two the question answered with a major there's a colloquy back and forth where the defendant quote took a deep breath and sighed when he was asked to drive over to secondary these are specific facts that go to the issue two issues because two it is a this case has so tally the jury had all this conflicting testimony they have this very confusing issue on the six pack photo spreads it is very confusing issue on the phone calls on what phone call happened when all addressed that in a nd but it was these issues for the deliberate ignorance charge because some of this muddied information came from cross examination of the defense they can't have it both ways the defense cannot ask for in the charge conference what it comes down to at the end it looks our contention is it is an appropriate charge be given to the jury because of the specific facts did he not want to know and that comes down to the latch on the trailer if mr mata did not want to know if he failed to investigate if you purposely put his head in the sand in the deliberate ignorance charge is appropriate or page is the question and answer with the agent who i'm latched in unlocked and saw and viewed the trailer there was no lock on the side door of the trailer he said it was either agent said it was easy to open for mr mata under the circumstances was he subjectively whereby high probability existence of the illegal conduct he's given a trailer told it's furniture at four in the morning in a darkened street it is already loaded he never checks to see what's back there he has to drive this trailer quite some distance he doesn't want to know that the furniture is loaded appropriately he doesn't want to know how it's changed the truck appropriately does on it is going to get pulled over he does no investigation to further to find out what is going on with this trailer and all of that evidence goes to he purposely put his head in the sand now at the end though if the court does not believe that's appropriate charge it's still harmless because in the closing arguments that we don't even rely on the argument we did not rely on that issue in making our argument to the jury that in the totality this is a case that this is a direct knowledge case  knew what he was doing and that's the case the government tried however like i mentioned it's these other issues brought in on cross examination and one point i want to touch on specifically with deliberate ignorance which is there is plenty of case law from the fish circuit  where a bit about this charge and one of the issue leigh cases recently came out where judge custer was very specific that he does not like the start the court as a whole does not like these charges given to the jury that comment there's a big difference between a multi week white collar health care fraud or pill mill case then a day day and a half smuggling case whether it be aliens for drugs there's just a big difference i would also distinguishes this case for many of the other cases on a deliber ignorance charge where the court has taken issue with with our use of that charge it almost every one of those cases there is either a stay statement a confession so to speak by the defendant or the defendant takes the stand there's such statements against interest  that the court seems to be saying if there is such clear evidence that that's not the case then why is that instruction given to the jury but that's not what we have here we're not trying to water down the burden of proof we're not trying to change the mens r we're we're using everything everywhere in our quiver a to make our argument to the jury and we're we're following the pattern jury terms that there's no issue that it's not the appropriate law to be given to the jury but but we're going to use what we have our disposal  on so it's a failure to investigate he didn't look into the trailer when he knew it was shady and under the circumstances the record supports the charge and these are the that i've gone through the facts that lead to it  when he came close and he came close to hook up the trailer and then quote the person who got us in the trailer asked are you sure you want to take the risk at a follow code and he said yes recording what he heard now the admits that he was making an assumption on page five hundred and forty nine image that is making assumption in the driver was the only other one besides the money being held at the checkpoint and at five hundred and fifty one he admits he does not know who was on the calls all of this information was given to the jury they were able to take all this information and again this also leads into the st issue of the sufficiency of the evidence and it wanted to know what review we give deference to the jury's verdict in this case it's harmless abuse because he was cross examined the district court has bro discretion in allowing testimony like this the back and forth only objection on the six o two but that is that this was not only a present sense impression that this was also a statement by a conspirator which is a party opponent and that was the back and forth of the legal argument made in the trial court that early morning when he was being loaded into the trailer to let me drill down on that again this witness is one of nine people present in the early morning hours and he and the others meet we have one and one individual right another man who is not mr mott right current they're put in the trailer i'm assuming correct me if i'm wrong they have not seen any other individual other than this person who i don't know whether he took their money or whatever but he loaded them on the trail am i right so far yes or ok and then who else obviously that theory the government's case is that mr mock to shows up as the driver d and is standing outside and this witness here's a phone ring and it's easy assuming that it's m wherever but he hears the other phone ring the guy says i'm ready and then it's in quick succession that that person gets into the truck and the truck starts driving and there's this congress are you willing to take the risk yes i you or your agree with your opponent that there are short bursts of phone calls at four in the morning the st being a nd phone call at four o eight in the morning and so this other evidence came in to corroborate mr alba diaz's testimony because in closing arguments the defense admits the phone is mr motus they give that up and close the there's there's no issue on the record or who the phone actually belongs to mr martin never puts on a defense that i'm sure in somebody else's pants that it was someone else's phone in the truck there's nothing like that and the defense gives that up and close so the phone dump shows all these little short hit phone calls in those st and those early morning hours which corroborates what mr abbott is saying and the inference and the argument as well who else was making phone calls at four in the morning to move furniture or quote unquote furniture up to corpus once no judge there's not there's evidence from the two material witnesses generally where they cross there are some railroad tracks it's it's obvious from the test where they did not know where they are and there was nothing in the record other than a statement from mr mata to the agent in the lane that he was coming from a dog coming from a harlan south are legend otherwise no there's nothing else on the record but what we do have is crowd rating testimony from both your witnesses they were that truck at least it wore them now or up to an hour forty five on the phone they the agents did testify that they tried to go backwards on the on the truck itself in the registration of they got lost in a series of looks like you know some just arm sale arms like transactions or maybe some cash sales of the car so they they did attempt to try to trace the record is that he did state that he was coming from harlan gen whenever he was st asked hey where you know where where you come from where it where you going it was very consistent with those throughout so that's one point but the other thing is that it was the agent who speculated that it would be you know a thirty minute drive or something like that but mr monti didn't say there's no basis to think from the testimony that might i departed and started my trip from harlem and he just said that's the route he was taking he was coming from there and so i mean it's really just not a strong piece of evidence to suggest that that's where this started and as mr patrick admitted there's just no basis in the record to infer where this stash house was located and you know again the government can ask more questions the ice agents are the agents at the checkpoint and then whenever they're interrogating later they can ask more questions and say did did you know are you saying you came started your journey in harlingen that this didn't happen here so i don't think that that's a very persuasive point i do want to point out that mr patrick just told this court that their case wasn't that mr martin was present outside his trailer when the individuals were loaded into it and if that 's true i'll take that because that means that there wasn't sufficient evidence to demonstrate that he knew about these individuals at all so i think that has to be what their case was it's certainly the only thing that you could possibly infer from the idea that there was a phone call that two people who were standing essentially next to each other decided to have right next to each other and it's another thing i'd like to get to judge your heart your question to be clear i agree with mr patrick i think that what mr abbott the as was saying is that these two people were standing outside within earshot and talking to each other on the phone but i do want to point out it's not at all clear the tatts corrected certainly not free from doubt given that no other non citizen in this trailer out of nine people who had the exact same vantage point only one of them heard a phone call the government had access to these other seven individuals it did not hold them over for trial it did not keep them it would i can't imagine that if one of those other individuals said they heard a phone call as well the government wouldn't keep them there to have corroborating testimony so i did it you know that's another problem with the government's case here is that it just wasn't a strong one and it certainly is implausible to think that these two individuals would have a phone call with each other they're standing right next to each other right next to each other and that hearing there is kind of an argument over whether or not these calls should come in at all because they nobody had any idea who they were made to and you know trial counsel was saying this this could be prejudicial judge and judgment and i agree with them on this point as well you know i don't think there's any basis to find that this is too prejudicial because for all we know it could have been his grandmother right and so i ringback i think we can reasonably exclude at four am the mr moto was calling his grandmother on the phone but the judge's point is well taken we just have no idea who was on that phone call only basis this is a problem with the inference stacking here the government wants you to assume that mr matas on that the loader called mr mata but it's the only way to get there is for you to also draw the inference of the jury to also draw the inference that one of these phone calls was made from mata to the loader and there's nothing really to connect that up and so that's certainly problematic and i guess the last thing i'll talk about it's deliberate ignorance again the government kind of admitted it when he talked about it in the closing argument the government's case here wasn't one everything that mr patrick said about should have looked the failed to investigate one failure to investigate his negligence that's not the basis for deliberate ignorance and either way it's also just not something that was before the jury their case was he knew he knew about this the entire time and  can honestly represent to this court as an officer of it that i have read every single case that has the two words deliberate and ignorance inside of the same sentence that this court has issued and of all of those cases where the evidence is actually described well the case the actual knowledge is the weakest here so even if you were to find that the evidence is sufficient even though mr mata or mr couldn't recognize mr martin's voice despite hearing it three days later as the person on appeal he got a few continuances on his surrender day because of the one thousand pandemic in the district judge said i'm not going to give you any more you're going to come in on november and our trial counsel actually filed a motion for bond pending appeal and use m briefs to argue that motion that there was a substantial basis that the appeal might be successful and the judge granted that motion and so he is on bond in an appeal right now so if you were used he has not served any of his sentence so if you were don't think he would be too upset by it to be prompt i just want to make sure we didn't really absolutely thank you thank you and your argument