good morning your honour's may it please the court record santa son of all federal defenders on behalf of mr vargas is studio i would like to reserve two minutes for rebuttal sure i'll try to help you out but keep an eye on the clock police think your honor you know how this works  the court should reverse because the government refused to turn over a list of eyewitnesses at the scene of the crime and destroy video footage from the crime scene can we take that too separately as to the first one it's a discovery order yes that's correct your honor we reviewed the judge judge's order for abuse of discretion yes your honor that is correct when i look at the record here i see that the judge just didn't deny the request but said  well government if there was somebody close enough to hear a conversation i'm going to order you to turn those over and the officer declaration said nobody was within five or six feet of us and we didn't speak in the kind of way anybody could hear us given hear and not see there were people in line waiting to be called at these booths and so they were observing the action well maybe make a proffer to us the way you would to the district court just like judge towards i'm struggling to seat the materiality of the information that you're seeking because you're relying on essentially observations of his demeanor that would essentially corroborate his story in some way correct that is correct yes so what about his demeanor could the witnesses have observe that would have been helpful or material to your defense that the witness is going to be seen observed mr vargas acting lost or confused at the port of entry which is conduct that  consistent with someone that is not trying to reenter the united states but it's that conduct that is of someone that is at the port of entry to ask for information the witnesses could have also in addition to corroborating real down on that how how is acting lost or confused relate to what he said he was trying to do which is to ask for information like what it was they're proffered that he was in fact acting was their declaration the record that he acted last like what what specifics are you really arguing to the district court and so there was there was no declaration at the motion hearing but the specifics that were argued to the court were that the witnesses could seen the interactions between my client and the agent go back to go back to judge one's question because what you're saying is well it's possible that the witnesses might have seen him acting confused and if he had a declaration in the record or some testimony that said i was confused i was in the wrong line i meant but he's got very good lawyers who say that's his defense and i'm trying to figure out why the judge doesn't say well that's pretty speculative nobody tells me there's no record that he was confused  officer doesn't say so he doesn't say so so why am i going to put the government through the bother putting together a list of people who crossed at the same time none of whom were there within five or six feet of him on the off chance that one of the may say he was confused why is not within the judge's wheel house of discretion in terms of discovery well first of dressing one of the first question part of the question that the court had there was an indication that mr vargas was acting confused at the that there was testimony from the border patrol as to that yes you know what i'm just trying to figure out it might have been helpful it might have been of some witness would have said he was confused but we're talking about abuse of discretion here and i know you want to get on to the destruction of the tape but i'm good thank you for answering my question was nothing in the record from your client a declaration or some some witness who says and here's the reason why these these  the names of these people might be helpful no you know there is no declaration the only things that were in front of the court at the district court level was the facts that were proffered based on how mr jarvis was arrested and how he was acting and the facts were that mr vargas approached the first booth the officer didn't remember what he said to mr vargas but sent him away mr vargas then went leaned against a wall officers he didn't try to approach officer stone's booth office just all summoned him forward and then ask him these questions now it seems to me that and all you were asking for were the people who were there at five twenty three pm and the government wouldn't give it to you but these people were witnesses to a crime or at least what the government was claiming was a crime and it does seem odd to me that the government wouldn't just give you these names exactly roger and that's what we were requested we simply wanted to get the witness list so that we could interview the witnesses in conduct their own investigation before trial i'm in just two additional points about the witnesses the witnesses could have also impeached officer stone's testimony the government's key witness at trial and the witnesses could have also led to a different defense strategy and so for them to do so well how would they  his his testimony his testimony was i asked mr vargas some questions and he gave me some answers how would and since none of the witnesses were hearing distance how would they  testimony your honor so at trial officer stone testified that when mr vargas went up to his booth he allegedly made a false statement and then looked into his bag while he was at the booth and so witness that was standing in line observing this interaction between officer stone and mr vargas could have perhaps not seen him look into the bag and what difference would that make if if this if the witness couldn't hear what the discussion was and that was officer stone speculation that they were far enough away so that nobody else could hear our discussion if i'm understanding the court's question correctly what difference would it make if they couldn't hear it whether or not he looked in his bag or not it would matter because officer stone implied that when mr vargas looked into his bag he was looking into his back to look for his lawful permanent resident card and so there was an argument that was being made that he looked into his bag for that reason the witness had seen list we basically sent it back for you to conduct that discovery and gather sufficient evidence to support a motion for a new trial yes your honor that is correct it not vacating the convictions not vacating the convictions just the limited remained to determine whether the the evidence would have changed the verdict the trial do you want to address the video quickly yes your honor just very briefly the video the government destroyed the only video evidence of the crime scene and even though  specifically requested it's preservation in the government could have easily done so what's the remedy what's the remedy that you're seeking we're requesting that the case be reversed and with the specific instruction that the case is dismissed because you're  indictment that is correct your honor because the government acted in bad faith did you did you at trial seek instruction as often occurs to the jury that the government destroyed or did away with this evidence and therefore you can assume jury for presume if you want to that it would have been helpful for to the fence we did not your honor at trial we did not take that remedy and just one last point since i am running out of time i just would point the court to that the government has been act acted in bad faith in two main ways by destroying this potentially potentially well evidence the first way that the government has acted in bad faith is that they've engaged in a pattern and practice of destroying video footage from from the southern district even though the defense has specifically requested its preservation and the government could have easily done so they're only recording over video footage after  double that question we're here all the time on disputes that the government could have avoided quite easily to no great detriment to itself whether or not the judge abuses discretion is a separate issue you enter judge evens question yes night and stand your the court's concerns i have i can speak to what the record reveals on this case in terms of the procedures that were in place in the requests that were made it was a very heavily  usaid about this question i spoke about the case certainly and about the litigation and i certainly had the trial usas review the briefing for instance and check up on the facts and all of that yes that that did happen sure your motivation makes any difference to our analysis of it but it's frustrating we have liberal discovery they ask for something that's easily produced it probably won't be helpful in my view and we have a long set litigation about not producing it simply because the government can do that and maybe the message you want to bring back to the trial attorneys is you create your own problems when you do things like this and stand your  it and and with respect to the discovery question the the district court reasonably handled it by narrowing at the request was a request for fifteen minutes of witness of people at the border beyond but the government resists that again what the government so that the the district ordered them to go to officer stone and ask him is there anybody within his reason was on of contact so the he was they didn't resist that they did they went officer stone and they said give us more we need more facts to determine whether there's someone within this reasonable zone of contact and if there is then we've got to turn that over and then he said the doctor saw so there were five to six feet away which is let's just say double  half of what you and i are apart so well why wouldn't you just do it well your honor so that one of the facts i think this is can be helpful it's on page two thirty two of the record it shows the it shows the it and it shows the distance between for instance the sentry lane where officer stone was and where vargas presented himself and the others in the queue line that are quite a ways back and there's also walls for instance between the two lane  things that no one with know was there when they were speaking he also says that there their conversation was was was quiet it was not loud it was not visible to anybody and act confused if the if the the argument th verges argument is that he was confused don't people act confused they have to say that there they they can the problem here is that vargas never said that he was confused he said people might have been able to see that i acted confused but he himself never proffered i was confused and i was doing things that confused people do and that other people can notice he didn't say i was standing against the wall scratching my head or somehow looking confusing never said those things that even a trial even  trial he never what evidence the defense presented trial in support of their theory that he was confused and not really trying to cross the border the only piece of evidence was no the only piece of evidence was a sworn statement from one nine to ask questions about immigration status correct an officer ortiz said i don't remember this guy and he was also asked if people kind of in a group come to your lane do you ever wave them back without ever speaking to them and he said yes i do if there's a group that's sort of coming and my understanding or with the facts show that vargas was kind of hitched on to this other group approach in the adjacent lane and and as the facts are sort of waved him back never he said he did not recall he said even a word him but he said that it would be his practice to waive so then at that point he goes back and stands against the wall he never proffers to the district court that he was confused or that he did anything to outwardly manifest his inner state of mind which would have been noticeable to anyone at that understand it the rest of the group proceeded and by group we don't know what it we don't know much but i couldn't witness have told you whether or not that was in fact the case you could it wouldn't witness of either supported this testimony or  i would put point the court is the little case where this quote is directly from little materiality is not established by a general description of the document sought or by a conclusion re argument that the requested information was material to the defense from mandela also neither a general description of the information sought nor conclusory allegations of materiality suffice a defendant must present facts which would tend to show that the government is in possession of information helpful to the defense these are kind of witnesses this is not documentary   are i witness to a crime your honor my view of this crime is that it's not one that you sit up and take notice it's not someone you know it's not an assault it's not someone you know it's not one of those types of crimes it's a crime that happened in a short brief quiet break the crime is a crime the only crime for which this defendant was convicted was attempt was the attempt to cross the border that's correct he was not convicted for the for state that's correct and so you've got somebody who's coming up to  boots at the border and his defense is i'm coming there to ask questions the the government as one government border agent says people do that all time so so it seems to me that that his demeanor and what he was doing there might well be material to his defense and if he had said that if he had said i i was acting confused like in zero gosa for instance which different context i'm sure is he required to do that to get discovery is not enough the defense says this is our theory of the case we don't know whether we're going to put our client on or not we have some evidence to support it because it's uncontested that his father had filed this application we have some evidence to support it because one of the border patrol officer says people come there occasionally to ask questions about the status of their application given that why isn't that enough the really need a declaration from the defendant i would say two things one he didn't actually say that he was at the at at trial it came out that he was asking about this application that was not part of the record before the court the motions stage now but is not isn't that what the defense said their theory of the case was not at the motion stage they said someone might be able to see this or might be able to see that but he himself knew what his actions were at the port if he had talked to someone if he had been in line with someone and said i was talking to someone for fifteen minutes before and i told him i'm just coming up here to talk about the petition my father said had filed for me that could have been a fact well or hadn't destroyed the tape would you  handed over the tape and we've you said but you've made the same argument with respect to the tape if you hadn't destroyed the tape would you have made the same argument with respect to tape no we're not giving it to you because it doesn't have any sound i  think the united states wishes that the tape had been given i don't know but answer my question ok when you're are going to bin we're not going to give you the tape because it doesn't have any sound no no then why wouldn't you give them a list of the witne rule rule sixteen requires that the defend why not i think the point is that if the tape had survived if the government had destroyed it it would have shown his actions and the witnesses also could have testified to his actions so they are equivalent i understand this point correctly so if you don't fight the videotape had it existed why would you fight the witness list the difference is that the video that we do we don't know if any witnesses ever even saw him at the poor but much input go back to judge jean's question you know i know we're taking over time let's assume you have the videotape having been destroyed yes you surely would have had to produce it wouldn't you yes your honor it's given that you destroyed it why not give them the second best thing which is a list of witnesses why don't you under those circumstances if you if you can see that you had to produce the videotape and you destroyed it under those circumstances and i don't mean you i mean the government under those circumstances aren't obligated to give them in effect the second best evidence which is th witnesses i think that would have been a good conclusion of this these rolling issues in terms of i'm not aware of of a rule that says if that some mishap happens in one area of the case that that then you don't think that you're that the government and i don't think it wasn't it wasn't in bad faith the judge found it wasn't bad faith but the government's destruction of evidence that you've been asked to preserve doesn't give rise to an obligation to at least give to the defendant the second best evidence of what he said i'm not aware of a case that would that would really work your case the other way that says that that we shouldn't take into account when looking at the discovery motion the government's destruction of evidence that it was asked to preserve i'm not i'm not but but these these two these two motions operated independently so they came they came independently let me ask you this because i was on a panel not too long ago where we had discussions with and usa from your office about the practice at the video and if i recall correctly the panel expressed a lot of frustration with the practice of constantly overwriting of these videos in the usa it represented to me and to the other judges on that panel that that that would be a  discussion within your office what has there been a decision made in terms of how to handle this because we see this over and over again yes roger there has been a lot of development on that on that side of things and i know that this case has been around for quite a while but this is this was march six i have two prefer points first addressing the issue of the witness list i think that the government took advantage of the fact that there was no what other witnesses the sides officer stone at trial at a closing the government talked about how there was no other witness there was no other evidence about mr to speak to mr vargas is in ted besides officer stone's testimony and so the witnesses could have been helpful at trial same with the video footage what do we make of the fact that the jury didn't convict your client on a false statement stuff it seems to me the jury was able to take officer stone's testimony with a grain of salt if you will to the extent you know to the extent that you thought that you could argue that he wasn't being entirely accurate the jury may have bought that i don't know at least wonder about it so what more could you have done with the with with the wit with a witness who said he looked confused at trial witness at trial to support our defense that mr vargas didn't have the intent to reenter and used that witness's testimony at trial to support that defense but we don't have that opportunity and the other you your honor that i wanted to make about addressing the issue of the destruction of video i think that perhaps the government has been working to preserve video but i think that it's still an ongoing issue in the southern district a judge the judge does make a finding that this wasn't done in bad faith it was being done at a time routinely every thirty or forty five days they shouldn't have done it but you're not arguing that the judge finding that it was in bad faith was clearly wrong wasn't in bad faith was clearly wrong and sorry we are your honor because the court was looking at the wrong thing and deciding whether there was bad faith in the court again incorrectly look that the value of the video based on what the what people could see see and hear from the video work sees me here from the video and so i think that the court was looking at the wrong thing and deciding that there was no bad faith all right taking you over your time as well we have the b briefing i think both sides of your argument the matter submitted for decision thank you