here to help us he is a graduate of the naval academy and served as an aviator he is a graduate of vanderbilt law school and was appointed to the bench in one thousand nine hundred eighty three by president reagan and he served in the northern district with distinction ever since so we're very very glad that he's here with us i think you're all familiar with our lighting system when the yellow light goes on that means your time is drawing to a close  so begin to wrap up if we take you beyond the red light then don't worry just keep talking to us and you're on our time and and not yours with that we'll start with our first case and that is fourteen dash one five united states through the atlanta airport in april of two thousand and thirteen they were traveling with the third individual who was also arrested at that time in a call to a greek citizen and a known alien smuggler everyone here agrees that ms cool  tried to get these two obtaining nationals into the country illegally the question at trial of course was was mr menotti somehow involved the jury only convicted mr menotti on trying to smuggle in daniels or are they the jury acquitted him of trying verdict the first era i'd like to talk about today or that the jail phone calls that coogan made after she was arrested she made several jail phone calls to a gentleman by the name of vasily bhutto as well as mr menotti's wife and in these phone calls she said she claims to say anyway that she asked for five thousand dollars and in exchange she would enter a plea of guilty and that mr menotti would go free now this all came in through cross examination these jail phone calls were not tendered into evidence but the government was reading from a transcript so it was clear to everyone in the courtroom that they had evidence that these jail phone calls existed well there's no hearsay component as to miss schoolgirl calling saying hey i'd like bribe give me five thousand i'll take that he and your husband your friend will go free that's not hearsay in an argument that are you well perhaps not but what mr menotti's lawyer also said at the end of the day i think is hearsay  tape is saying the lawyer saying don't pay who's the speaker of that comment she says it was vastly better but we have a transcript so we know who really set it down who on the tos on a tape recording said it i'm not entirely sure your honor i don't think those ever tendered into evidence let me ask you about that statement though good that strikes me as not being offered for the truth of the statement i mean what what could be truthful about a statement that says don't pay whether it's true or not doesn't make any difference the important thing was that the statement was made as it was our contention though is is he also said there were apparently explain to cool good that you're going to end up or the mr nice going to be in the same amount of trouble as you are if he pays i think that was offered for the truth of matters certain not just the don't pay part these statements also were because the attorney was concerned about the payment in so far  worry about that's right now but on the conspiracy to the extent that you have to get to that obviously the immigration smuggling attempts but would you agree that if there had been a direct conversation was  and your client to the effect directly or let's let's put another way your your client mr minority comes to her and says i'd like to pay you five thousand dollars you take the rap now here sight of that right and that would be an  admission of guilt would it not i think it would be put mr menotti was not a part of these phone calls but can we not reasonably infer that with his wife and his friend if the jury could infer that they were acting on his behalf and it was a proxy almost as if he himself were a charge conspiracy you don't you can have a coconspirator exception that's not part of us charged indictment and would it not be a crime or conspiracy to obstruct justice by trying to bribe a witness i think it would be but again these are not mr menotti statements these are people that he doesn't control and he can't talk he's in jail these are people acting on his behalf right i suppose that would be the government's argument when we run into these coconspirator statements all the time in drug cases and you don't have to know all the players you don't even have to know much about the conspiracy as long as you know there's something wrong going on a new participate one time you're a you're a coconspirator of a big overall smuggling conspiracy here how can you say these are not  think what we have to look at is what the charge conspiracy was and when it ended this may be some different conspiracy that he wasn't charged with he wasn't notified under four forty of this prior bad act that they're trying to introduce we're talking about something whol removed from what hasn't this is famously said it ain't over till it's over on a conspiracy when is it over for in grunewald the u s supreme court case they said that when the primary purpose of the conspiracy has come to a close that's it that's when the conspiracy stops in this case the primary purpose was to get daniel and national into the country that stopped when they were arrested at the hartsfield airport and i wasn't sure did any money change hands of eventually what the records say about that did she actually get money from mrs menotti she says that she was paid five thousand dollars but no there was no answer here any perceived as not being so great anymore after she got out and there's there's no other evidence of that no bank records anything like that was introduced so i don't know your honor and of course this was harmful evidence coming in that my client had bribed the government's star witness of course is harmful it's an additional crime impugns his character and you're saying the tank nor the transcript was ever introduced that's right so but it does when you get down to it then all of this this allegation everything that how do you pronounce her name  said it comes down to her credibility on all of this and as she admitted i'm a lie or a lie all the time i do anything to save the country so the jury could weigh that along with everything else could they not but that's the problem with the government's case is it all came down to the credibility of good and daniel that's what their case really rested upon so any error that comes in may very well be harmful but of the air relates to whether she's telling the truth about this latest fact and so it's one more thing where you believe or you don't belabor you believe her sometimes it's all her credibility that's sure but you did say it only comes down her credibility and maybe i said that and that's too simplistic there wasn't there lots of evidence tying her with telephone records to monogamy and he happens to be at the airport and there's all sorts of circumstantial evidence tying him to the well let's talk about that so the airport mr i'm not he was at the airport the day that daniel and national and landed in atlanta that's true that was stipulated to the problem with that or with the government doesn't like to talk about is that daniel's uncle called mr minority and asked him to come to the airport that day or was it a purpose in mr mock when i did well there's this myth that mr menotti hopes people who come to this country he helps other  their communities so it's not uncommon for him to be calling other albanians both in america and in albania who wish to come to america that certainly doesn't mean that he's trying to smuggle people in illegally how that muskoka having his telephone number again if he's trying to help people come to this country legally it would make sense that he would be in contact with people who are trying to bring others into the country it doesn't mean that has to be for unlawful purposes though but these telephone contacts between him and arrange all these things via text in and facebook message but conveniently she told the jury that she deleted all those right before she was arrested so there really wasn't any solid evidence linking mr mentality to this alleged offense what it was is the word of cool to the word of daniel and that's why these errors that we've named in a brief matter so much because they serve to really bolster both cool guys and daniel's testimony the other issue of course is that the district court limited cross examination and i'm running out of time but i want to briefly raise this issue daniel had applied for asylum on a credible fear client and the immigration judge denied it the immigration judge found him not to be credible trial counsel tried to cross examine daniel at trial on this point that he was found to be not credible by the immigration judge but the district court did not let him we cited various cases in our brief i believe there are four circuit cases that said that this type of testimony is permissible under rule six zero eight be the first of the federal rules that on our cases and tyco and johns indicate that this is not an appropriate thing to get into what a judge in another proceeding is said about something well i think those cases are on opposite for a number of reasons one bay don't address six zero eight b i think they look at you dish will notice that one looks at public records exception also civil cases they're not criminal cases so the sixth amendment of course is not implicated in those cases i think what's happening is the lawyers are trying to introduce extrinsic evidence the actual document terri findings that the court here all we're talking about was ambushed to establish their truth and veracity right here is just cross examination to test the veracity of a witness not to establish a proven fact that's right just asking a question and if the witness denies purpose of the jury the jury's going to hear danielle are going to hear a whole lot of things they know he's trying to get asylum because of he claims he's going to be persecuted back in albania they can believe or not believe him based on that to go to what a judge in a different proceeding said he thought about that without perhaps having the same evidence that judge isn't it really is to me hearsay in one respect but also substituting the judges of the point for what the juries actually supposed to be looking at his credibility or your honor even if it  could the testimony or the question be asked i'm sorry if the immigration judge had found him credible and the judge wanted to introduce that on direct examination of daniel would that have been permissible i suppose you know your honor i don't think it would have been you know it's about on cross examination inquiry into someone's truthfulness or untruthfulness so i do you also if you ok so let me just flip it for you then the government decides that daniel is not great of a witness so they're not going to put him on they think they're going to be able to get to the jury without his testimony but he's here in the u s and you subpoena him and you put him on the stand on your direct in the government then crosses him can the government put in good morning may it please the court counsel my name is jennifer kean and i represent the united states unless the court has preferences i'm going to begin where mr johnson left off on the issue of the immigration judges finding it was not an abuse of discretion for the trial judge to limit cross examination on the immigration judges finding that deno giora was not credible because as had just crimes as you pointed out this court has held that there is a special danger that a jury would give undue way to a judge finding and that it would be unfair prejudice to admit the other judge's opinion under federal rule of opens for three so this is a four zero three balancing you're saying yes judge and then this court has he two cases two separate cases not only teco but as well as in jones that a fact finder should not import another judge's findings into the record of their case i'm not sure you can say that that's what the judge based this decision on from the well i'm not sure that that's right but you cite a couple of cases in support of your position but jones it seems to me at least that case is very different right it is very that that cases where you're trying to introduce as a piece of historical fact a judge's prior finding to establish the truth of that finding right under judicial notice provisions that's a very very different stent situation that what you have here right yes it is a different situation in that it was a civil case and it was not about the other judges credibility determination but what that case highlights is that there's a danger of importing another judge's finding into a different case where there's a different ruling the federal rules of evidence every once in a while give a lawyer the ability to ask a question but then they're stuck with the answer to the question and they can introduce extrinsic evidence to contradict the witnesses answer yes there's not be one of those scenarios in other words you may be able to ask the question but if daniel for example had said no no immigration judge ever found me not credible he loved me and then you might then the defense might have been stuck and because of hearsay problems they might not have been able to introduce the judge's written order substantively to contradict what daniel said on the stand but that doesn't mean the question can't be asked in the first place right well judge it's confided in to the discretion of the trial court on whether that the question can be asked or not and and that it was not an abus discretion for him to not allow cross examination again because there that the potential danger that a jury would give undue weight to that judge's finding and now the cases that defense counsel cite would be allowed on another judge's finding and that this court's pressed into go in june to control but even those cases that defense counsel cites you don't necessarily those cases don't stand for the proposition that six to eight be mandates that defense counsel be allowed to cross on another judge's finding it just says that it does not bar cross examination but even in those cases don't necessarily call close a finding of not providing testimony credibly under oath to a perjury determination i'm sorry could you repeat that how close do you think a judge's non credibility finding is with regards to testimony under oath to a perjury determination well i mean if he had been convicted of perjury he could have been crossed on that right if the governor if the government had chosen to prosecute him for the false testimony that he provided in front of the immigration judge under oath right he gets prosecuted for a false statement to a federal official in the course of his or her duties and he gets convicted then that gets introduced right yes you're if you're battling for cross but substantively maybe correct but in this case he wasn't convicted and he wasn't charged and i know that my question is how close are those two things in terms of cross examination what's the difference between a judge find  you not credible under oath in a perjury conviction for having lied under oath well in this case it wasn't clear that the what the immigration judge found to be not credible and there's no evidence that i mean there's there's a distinction between finding someone not credible and the reasons why that they found they were not credible under different standards going so far as the say they outright lie there may be pieces actually that the immigration judge found not credible but as a whole we don't know that the judge actually felt that dana was outright lying and that that's not clear immigration judges ruling or on the record of this case and so i think that those two are can be very far apart that someone can be found not credible and not go so far as to say that they're outright test is says quoting the test is whether a reasonable jury would have received a significantly different impression of the witnesses credibility had counsel pursued the proposed line of cross examination in the quotation  what do you really referring to with respect to the significantly different impression because there was no cross examination allowed here a believe that there is a sixth them and violation here because the jury heard all the same facts that the immigration judge heard he and the jury heard about the blood feud the jury heard about him lying to the immigration officials when he entered the country a let's say an expert chemist testifying in a drug case that the substance is cocaine but doesn't appear the supreme court says it's a confrontation clause problem what's different about this you can't you can't introduce the report under the confrontation clause the whys why is that different from this well daniel took the stand and he was he could have been cross examined when he was know and he didn't make the statement and that again was hearsay but correct me if i'm wrong but i thought the judge ruled in on and read the transcript even more carefully the judge that you can indicate you talked about a blood feud and cross mr defen attorney you can point out that he had a hearing the whole hearing the song was based on whether he feared prosecution persecution you can point out the judge denied that right and wrong i mean that was that was the ruling was he not was defense attorney not allowed to bring out all of that he just couldn't fill in the blanks with a particular editorial comments them aggression judge said in getting to his decision you know judge you're absolutely right defense counsel has a lot a lot to cross examine on all of those issues not only was he allowed to cross examine on all those issues he ended up saying to the trial judge that's close enough and that would have satisfied what he wanted to do on cross he was allowed to cross examine on everything but for the fact that the immigration judge found those particular facts be not credible so the jury was exposed to all the same facts that the immigration judge heard sufficient to draw their own inference of credibility as was in their province to make in this trial to make their own credibility determination and so that plays into our you've got a pretty decent argument on that point but that's not the only other it's being challenged and i'd like to talk to you for good about a couple of the other pieces of evidence that are being challenged on appeal yesterday tell me a little bit about the admission of lushes statement about what he did to bring daniel who was his cousin into the united states as i understand the brief but i have not gone into the record to thank double or triple check everything  told lush that mr might not it has helped him before and i think you'll help you to that's like two levels of hearsay is it not yes test so how do you get that in w judge is is look this is lunch testifying about what archer told him about what mr minority told him so you tell me how you get that into evidence if my construction of the statement is correct but judge it's not hearsay because it was not offered for the truth of the matter asserted what mr minardi helped me before and i think he will help you to you think that's not offered for the truth to show that mr in florida named kelly and then that's and then subsequent after that then comes a question you know and what did he tell you so yes see that's the problem if you had asked whether or not somebody gave him a phone number that's not hearsay right unlikely fine but then you go first you or me you would say goes a step further so i want to know how you get a statement about two levels of here see in the statement was offered to explain why blush his subsequent course of conduct then called that phone number and in this court's case to cars this court held that something offered to explain subsequent course  that he called the phone number he made agreement with the defendant for twenty four thousand dollars to smuggle his nephew and in that place into like that again that's why i want you to help me with the statement and tell me whether my construction of the statement from the brief says right or wrong as i understood the briefs lush testifies that he that our turret told him that mr minardi had helped  before and i think he might not he will help you too is that the statement that is the statement ok that to me that's two levels of hearsay because it's lush testifying about what archer told him is not hearsay one level of hearsay that's where the truth of the i think all of us have been trial judges you don't introduce that statement unless you wanted to help your case on guilt i called minardi or called a friend who talked to minority and minority and helped him and my friend told me he'll help you to what do you think that starts putting in the mind of the that goes to the issue of harmlessness and you may well prevail on that or many other theories in this case but i want to know how that comes in it's it's part of the charge conspiracy  and we had not gotten into tying back the sister being smuggled in into that statement at the time so at the time she she argued course of conduct and not offered for the truth don't think that there's an established conspiracy to allow this in under the coconspirator exception well under the hearsay part imo notes indicate that the district court said this is just explaining his course of conduct why would he why would  why because he's had somebody who's given this information so it shows not necessarily that might not be said the things he said who knows but it shows why lush behaved the way he did thinking that he might help him that's what the judge said now i don't think the judge gave an instruction to the jury that it should be limited for that purpose my question is i don't believe but i could be wrong did the defense attorney ask the judge to give an instruction making it clear that this was not admitted for the truth of the matter honor i think defense counsel's position was that this was pure say right but then when a judge rules differently says no i'm admitting it just show course of conduct or to explain why lush took the lighter action that he did defense attorney could have said judge would you claim on appeal which is the the prior consistent statements that were offered by the agents can you do you have an address that and i think that's probably your strongest claim so maybe you ought to argue that yes you're on so during the trial the government introduced daniels recorded interview to law enforcement and during this interview daniel talks about how mr minority told him to go to greece and set him up with greek people who were going to make them fraudulent documents and that mr menotti was to be paid twenty three thousand dollars for getting daniel into the country so our contention that this is all hearsay all of the numbers all not objected to iraq that's correct if you read the transcript apparently the government provided to counsel at or at the trial or shortly before the trial and counsel had not had time to review it there's no objection it's played the entire video is about an hour long and for the first ten minutes within a ten minutes there's a three or four minute window where law enforcement is yelling at daniel do you want to be a witness or do you want to be a defendant badgering him in fact one of the officers that's it's on the stop only after that does daniel change his tune and spill the beans so to speak and point the finger at mr minot daniel had given a previous statement to law enforcement the day before where he denied any other knowledge than who he was as a fake greek citizen  he's got that's got to be some truth to that as well a couple of things on that they had spent a couple of months together kugel and daniel preparing for this trip they had to produce fraudulent documentation come up with fake stories it wouldn't be that much of a stretch to say hey let's point the finger at somebody if we get caught also daniel admitted that he called his family that night to talk to them before the interview and that his family was also in touch with quoting cooper's family so there's a lot of different connections going on here  just happens to be at the airport he was at the airport because daniel's uncle called when asked him to come that's why he was there according to the testimony and daniel sr testified that he was there to welcome daniel to the country and again corroborated by the fact that he had character witnesses who talked about minority was a large figure in the albanian community and help to get people stablish once they're here but we have this interview now the government only played five or ten minutes at trial but  very damaging five or ten minutes and this had the effect of bolstering daniel's testimony at trial well let me ask you as a matter of law the government's relying on the prairie to decision how would you distinguish that case from the rule that there has to be a motive to lie if it's going to be a prior consistent statement here that motive to lie existed as soon as law enforcement started yelling at daniel do you want to be a witness or do you want to be a defendant do you want to be prosecuted we also have to look at the circumstances of it he had lied before the day before to law enforcement he admitted to that now he changes his story tells an entirely different story so if a motive to lie it didn't exist and the jury was made aware of that they were but it doesn't make that the statement admissible and the judge was fully aware of that when he is here on let me ask you one more question on that and this came to this was brought up in the rebuttal i'll give you a chance to respond you you also say that there was plain error with regard to the admission of another prior statement by ms cool guy but i really couldn't figure out from the brief what that prior statement was there was evidence and testimony that she had lied to the c p b officials at the airport but i don't know what other statement you claim constitute a plane air or a purse she told law enforcement that she was meeting kelli at the airport and that she gave law enforcement kelly's phone number those are the statements that we complained of and they are not nearly as extensive as daniel's that's where mind it when was that statement made this is the second day during the second interview she again changed her change that she was meeting kelly which was mr menotti that's right that she was meeting him and what else i'm sorry she provided his phone number and it turned out to be his phone number correct no question and the number she gave was in fact his telephone i don't believe those are stipulated to can you give me three minutes please tony three so if you'd like to to respond the argument concerning the admission of daniel's prior statement and maybe mis cougars to you can go ahead in the scheme thank you your honor and as this court found in prieta there can be multiple motivations to lie as well as multiple motivations to tell the truth and there are sufficient facts for the trial judge to find that the motive to lie didn't attach until those two witnesses agreed to cooperate or offered immunity later in the case and that they were motivated they could have been motivated to curry favor with the government as far as their immigration issues were concerned both prior statements were made on may first of two thousand and thirteen and the jury heard evidence that in that second statement the second statement that defense counsel raises on appeal and in objects to that immediately prior to making that second statement danial talked to his family and daniel he said you know i talked to my family and asked what should i do and his family told him to tell the truth to stay strong and tell the truth and that's why he gave the second statement that he gave when those when there's the motive the at what point do you look at the motive for him in exhibit fifty three the government gave daniel a deferred action letter on august the fifteenth of two thousand and fourteen and stated that you know if used testify for the government if you help us out we'll let you stay for a year and i think that's when the motive to lie are made at the curry favor with the government attached that's when he was first offered any benefit whatsoever from the government and with similarly she testified that the  statements the second statement that she gave may first of twenty thirteen she stated that that's when special agent martin katz came to see her and he was the only one that was forthright truthful and upfront with her and that she basically respected that and that's why she started telling him the truth in that second statement and that it was but she was ultimately prosecuted so when did her motive arise she was ordered to be deported on march the eleventh of two thousand and fourteen that was entered into evidence as exhibit fifty six and she subsequently had a meeting with the united states attorney's office in july twenty four teen about her testifying at that point when she was ordered deported you know she knew that she was about to have to leave the country she wanted to stay and she saw an opportunity to curry favor with the government and as the jury heard that the government was willing to tell the immigration judge that she testified and she assisted the government so i think she saw that opportunity after she was ordered to be deported when she lost all avenues of belief in immigration court and was asked to subsequently testify in july of twenty fourteen and based on those facts that thing there was sufficient facts that the motive to lie didn't attach until later but at any rate i don't understand that i don't understand you're almost saying that everything she tells the government after she wants to curry favor is a prior consistent statement  is that what you're saying i think that the the court's determination when a motive to lie attaches very fact specific and there are facts for the court to have found that that's when the motive to lie could have attached but the trial court didn't get the opportunity to make that determination because defense counsel didn't object below and so this court is left to speculate about what the district court would have would not have found on a very fact reputation the judicial process but i'm saying is that yes the trial court didn't get to make this determination but had it been allowed to make this determination had defense counsel objected below there were sufficient facts to find that the motive to attack attach later and not necessarily before and this court has found in prieto and shavers in similar situations that the motive to lie could have attached later down the line when a benefit w