[00:00:02] Speaker 03:
We'll move to argument in our second case, which is United States versus Behar Guizar.

[00:00:10] Speaker 03:
That's case number 23-3201.

[00:00:58] Speaker 00:
Good morning, Sandra Lopez of the Federal Defenders on behalf of Mr. Bejar Gieser I'll be it's hard for me to I'll be reserving attempting to reserve two minutes of my time for you, but on be I'll be checking the clock Prior to the arrest of Mr. Bejar Border Patrol observed him walking down a street towards a mall and

[00:01:28] Speaker 00:
with mud on his boots and clothes in a densely populated residential and commercial area on the side of the street where agents had seen homeless people.

[00:01:39] Speaker 00:
With little more than these core facts, one, the agents did not have reasonable suspicion to stop him.

[00:01:47] Speaker 03:
It's more than just where they had seen homeless people.

[00:01:49] Speaker 03:
I mean, that may be true.

[00:01:50] Speaker 03:
I don't know.

[00:01:50] Speaker 03:
But this was a common area, wasn't it, where border crossings occurred?

[00:01:58] Speaker 00:
Actually your honor, but there in general the border is a common area where and there are undocumented people But if we look at this particular area It was an area that was densely populated with homes and businesses The mall was just 200 miles away.

[00:02:17] Speaker 00:
So although there is proximity

[00:02:21] Speaker 00:
I mean 200 yards I apologize 200 yards away 200 yards away the border was farther than that So in this this is unlike an other Proximity of the border cases where the person is found in a very remote rural area in combined so

[00:02:43] Speaker 00:
Although, yes, it was the proximity to the border, but there was no testimony from the agents that they had arrested someone specifically on the south side of the street.

[00:02:55] Speaker 00:
There was no testimony that undocumented people tended to stay on the south side of the street.

[00:03:04] Speaker 00:
What there was testimony of was that the agent had seen homeless people on the south side of the street.

[00:03:13] Speaker 01:
There was also the fog in the time of the day and it was you know that was unusual for people to be walking on that side of the street and we are supposed to look at I mean all they needed was reasonable suspicion right they didn't need to rule out all possible innocent explanations today.

[00:03:29] Speaker 00:
No, Your Honor, that's correct.

[00:03:31] Speaker 00:
The agents don't have to weed out all innocent explanations.

[00:03:34] Speaker 00:
But what they do have to do is if they are relying on what would otherwise be an innocent explanation, they have to make a particularized connection to this individual.

[00:03:45] Speaker 00:
So if we look at, for example, the south side of the street, it's unusual to see people there.

[00:03:49] Speaker 00:
But there was no evidence as to why walking on the south side of the street would be a sign of criminal activity.

[00:03:57] Speaker 00:
There was no evidence of it being against the law, no evidence of, as I indicated before, of undocumented people tending to stay on the south side of the street.

[00:04:08] Speaker 00:
Based on their experience, they had seen homeless people on that side.

[00:04:11] Speaker 00:
So weighing their experience, it's more indicative of a homeless person than an undocumented person.

[00:04:17] Speaker 01:
I guess the problem I have is that it is somewhat just looking at that

[00:04:24] Speaker 01:
Factor in isolation, but I think could that why couldn't they count that in?

[00:04:29] Speaker 01:
Among the totality of the circumstances they were considering it was the fog the time of day the mud on his clothes the proximity to the border and the river and the you know and The fact that it was unusual to see someone walking on that side of the street I mean I I don't really buy the officers testimony that like an

[00:04:51] Speaker 00:
Only illegal people you know use that side of the street But that we had a second officer saying that there was it was unusual the one who actually made the stop so I agree your honor we do look at each factor and see how much weight we give to those before we consider the cumulative and I'll address maybe that what would In theory tend to show more probative value, which would be the mud But if we look at the mud agent Kara testified that in his experience people who crossed the border

[00:05:20] Speaker 00:
through that area would have mud because they have to cross what he called the pretty nasty sewage water of the Tijuana River.

[00:05:29] Speaker 00:
But when we look at his actual testimony, he failed to make the connecting dots between his experience and Mr. Behar himself.

[00:05:38] Speaker 00:
There was no testimony as to why the mud on Mr. Behar

[00:05:43] Speaker 00:
was consistent with someone who had crossed sewage water.

[00:05:46] Speaker 00:
For example, one would expect a smell, and there was no testimony of a smell coming from.

[00:05:52] Speaker 03:
I think the reasonable suspicion requires that level of granular detail.

[00:05:58] Speaker 00:
Yeah, and I think when we were looking at the factors, the case law requires any inferences drawn from the experience of the agents to be particularized.

[00:06:07] Speaker 00:
And so the problem with not doing that.

[00:06:11] Speaker 03:
Would they have to test the mud?

[00:06:13] Speaker 03:
And see if it came from the same, I mean, I just, they're doing this on the fly.

[00:06:22] Speaker 03:
They see somebody who fits the bill, and the question is do they have anything that,

[00:06:28] Speaker 00:
You know did they have a reason or was there a another reason why they stopped I understand The reason why we need separate such particularized information in a key in a case where there are hundreds if not thousands of lawful residents is that we do need particulars because thousands that are walking on that side of the road that have mud on them and

[00:06:50] Speaker 03:
And that are walking at 730 a.m.

[00:06:52] Speaker 03:
In in foggy weather, I mean it was also evidence.

[00:06:58] Speaker 03:
This is at er 38 because you the fog is another one I mean based on the agents experience people to attend attended to attempt unlawful crossings during very foggy weather and That's at er 38 So I think the fog is another factor and in fact if I understand it correctly at least according to the testimony

[00:07:17] Speaker 03:
The agent specifically went there because it was a foggy day and their experience was they try and cross during foggy weather.

[00:07:27] Speaker 03:
Are you disputing that?

[00:07:30] Speaker 00:
No, Your Honor.

[00:07:30] Speaker 00:
But what I will say about that is based on the agent's testimony, their experience is that undocumented people want to avoid detection.

[00:07:39] Speaker 00:
But if we look at Mr. Behar himself and his behavior, he wasn't.

[00:07:47] Speaker 00:
So it was actually contrary to the agent's experience.

[00:07:53] Speaker 02:
I mean, it seems like if the probable cause was a standard, I think you'd easily win.

[00:07:58] Speaker 02:
But this is reasonable suspicion.

[00:08:00] Speaker 02:
That's a pretty low bar.

[00:08:02] Speaker 02:
And here, maybe again, each piece of evidence isn't enough, but there's four or five of them here.

[00:08:08] Speaker 00:
Well, Your Honor, I do believe that the combination of factors don't distinguish an undocumented person from a homeless person that may be walking on the South Side.

[00:08:20] Speaker 00:
But even if Your Honors disagree with me on the reasonable suspicion, I do believe that the government failed to provide substantial independent evidence corroborating alienate in this case.

[00:08:34] Speaker 00:
There was no evidence.

[00:08:37] Speaker 03:
standard of review on that one is clear error, correct?

[00:08:42] Speaker 03:
You're moving to the Corpus Delecti?

[00:08:44] Speaker 00:
Yes.

[00:08:45] Speaker 00:
I think there is an intracircuit split as to whether it's clear error or de novo, but I believe under either standard, we win.

[00:08:54] Speaker 00:
So there was no evidence regarding alienage in this case, no birth certificate, no deportation documents.

[00:09:06] Speaker 00:
And other 1,325 cases dealing with corpicillic D in this case have considered mode of entry.

[00:09:14] Speaker 00:
But unlike those cases, there wasn't substantial evidence here because all we had is the mud.

[00:09:20] Speaker 00:
This is the fog.

[00:09:23] Speaker 00:
And the fog all of that, but but all of that even all of that combined is very different from Garcia.

[00:09:31] Speaker 00:
I confuse the names Garcia Villegas and Garcia Galindo where there was actual eyewitness testimony close to the border fence and seeing the person crossing prior deportation.

[00:09:45] Speaker 01:
Excuse me?

[00:09:46] Speaker 01:
Isn't there evidence of his prior deportation or no?

[00:09:49] Speaker 00:
There isn't.

[00:09:51] Speaker 00:
There wasn't any evidence of a prior deportation at trial.

[00:09:56] Speaker 00:
So based on all those, I'll reserve the remaining time for rebuttal.

[00:10:00] Speaker 00:
Thank you.

[00:10:08] Speaker 04:
Good morning.

[00:10:08] Speaker 04:
May it please the court?

[00:10:09] Speaker 04:
Peter Horn for the United States.

[00:10:12] Speaker 04:
Behar's appeal lacks merit on both issues.

[00:10:15] Speaker 04:
This court should affirm his conviction.

[00:10:18] Speaker 04:
On the first, agents had reasonable suspicion to stop and conduct an immigration inspection here.

[00:10:24] Speaker 04:
As based on several particular facts, as Your Honor's pointed out, it's not only the side of this treaty it was on, it was the time of day.

[00:10:30] Speaker 04:
This is 7.30 on a foggy morning in an area where agents knew illegal border crossings are common.

[00:10:37] Speaker 03:
He was walking alongside of the- Wasn't his testimony that he actually crossed the night before?

[00:10:43] Speaker 03:
Am I misremembering that?

[00:10:45] Speaker 03:
That was Behar's- Also foggy the night before?

[00:10:48] Speaker 04:
I don't believe there was evidence in the record of the weather conditions the night before, but his Behar's initial statement to agents, both in the field and post-rest, was that he had crossed the night before.

[00:11:02] Speaker 04:
And so presumably he had crossed the border.

[00:11:05] Speaker 03:
To a certain degree, that doesn't really matter because the question isn't whether he actually fit within the suspicious circumstances, but whether the suspicious circumstances existed.

[00:11:16] Speaker 03:
There was fog that morning.

[00:11:17] Speaker 04:
There was fog that morning.

[00:11:19] Speaker 04:
The evidence is clear on that.

[00:11:20] Speaker 04:
And whether there was suspicious circumstances at the time of the apprehension.

[00:11:24] Speaker 04:
And here, right, that's the time of day.

[00:11:26] Speaker 04:
Few, if any, businesses were open.

[00:11:29] Speaker 04:
There are people who live in that area.

[00:11:30] Speaker 04:
There's the mall.

[00:11:31] Speaker 04:
But it's not only the side of the street, as Your Honor pointed out in questions a few moments ago.

[00:11:37] Speaker 04:
He's on the side of the street that's close to the border.

[00:11:40] Speaker 04:
In the 300 meters between him and the fence, it's a river valley.

[00:11:44] Speaker 04:
It's going to be mud, sewage.

[00:11:46] Speaker 04:
Agents knew that if someone's coming across there, they're going to be dirty.

[00:11:49] Speaker 04:
And that's consistent with exactly what both of them saw on Behar at that time, which was mud on his boots and pants.

[00:11:56] Speaker 04:
This is also an area that agents knew illegal crossings were common.

[00:11:59] Speaker 04:
They were sent there at that time of day in those conditions to conduct patrols and possible interdictions under the totality of the circumstances.

[00:12:09] Speaker 04:
There is reasonable suspicion.

[00:12:11] Speaker 02:
If he didn't have muddy boots, would there be reasonable suspicion in that case and all the other factors were there?

[00:12:17] Speaker 04:
It could be a closer call, but there could still be reasonable suspicion based on the time of day

[00:12:24] Speaker 04:
the circumstances of his walking, even his behavior and the way agents ruled out, they didn't need to, but the way they appeared to rule out potential innocent explanations were that they looked at whether he was trying to flag down a car, whether he was walking, whether... That seems like if you're just on a foggy day, if you're walking around, you could be stopped in that area.

[00:12:48] Speaker 02:
The reasonable suspicion seems to have almost no meaning then.

[00:12:52] Speaker 02:
I mean, people just walk around, taking a walk.

[00:12:55] Speaker 02:
I see driving around, I don't know why people are walking at 5.30 a.m.

[00:12:58] Speaker 02:
in the morning, but they do.

[00:13:00] Speaker 02:
That seems without muddy shoes, it seems like reasonable suspicion would be almost meaningless.

[00:13:05] Speaker 02:
You can stop anybody on a foggy day.

[00:13:08] Speaker 04:
It is a significant fact.

[00:13:09] Speaker 04:
And we're not taking the position that on a foggy morning at 7, 8 o'clock, the Border Patrol has the authority to conduct a stop of just anyone walking on the street.

[00:13:19] Speaker 04:
All we're asking is for affirmance that the district court did not err, the magistrate judge did not err, in finding reasonable suspicion in these particular circumstances.

[00:13:28] Speaker 04:
And that includes the mutt.

[00:13:30] Speaker 04:
And the evidence, the testimony is unequivocal on that.

[00:13:33] Speaker 04:
In defense exhibit four, a screenshot of the recorded post-Miranda testimony.

[00:13:38] Speaker 04:
It's not apparent from that shot whether there's mud on him.

[00:13:42] Speaker 04:
But that also doesn't show his lower legs, his boots, and both agents testified to the same thing when they saw Behar on the street that morning.

[00:13:51] Speaker 03:
Could I ask, so the standard review, when we're reviewing the Fourth Amendment stop initially, we do review that de novo, right?

[00:13:57] Speaker 04:
De novo, that's correct.

[00:13:59] Speaker 03:
But we give deference to the inferences that the district court drew.

[00:14:04] Speaker 04:
to the inferences, the reasonable inferences that the district court, magistrate judge, resident judges, as this court has said before, draw, and inferences drawn by the officers on this scene.

[00:14:17] Speaker 04:
So it's a particular, peculiar sort, more deferential sort of de novo review.

[00:14:22] Speaker 04:
On de novo review, moving to the second issue, unless the court has more questions on reasonable suspicion.

[00:14:30] Speaker 04:
Clear error is the standard this court has recognized for the corpus delicti doctrine.

[00:14:36] Speaker 03:
Because it's a mixed question of law and fact?

[00:14:39] Speaker 04:
That's predominantly factual.

[00:14:40] Speaker 03:
Exactly.

[00:14:41] Speaker 03:
So we do seem to have an interest circuit split on this.

[00:14:44] Speaker 03:
And I'm wondering if some of that depends on where, I mean, because mixed questions of law and fact come in a whole variety of shapes and sizes.

[00:14:53] Speaker 03:
And some are more questions of law, which would tend to lean more towards a de novo review.

[00:14:59] Speaker 03:
And some are more factual, which would lean more towards clear error.

[00:15:04] Speaker 03:
Can you sort of make sense of where we're at, or we just have a circuit split, an intra-circuit split?

[00:15:12] Speaker 04:
I don't believe there's an intra-circuit split, in fact.

[00:15:14] Speaker 04:
The cases where the clear error standard has been applied are cases in which, like this one,

[00:15:22] Speaker 04:
The issue presented on appeal is of the corpus delicti doctrine, a specific challenge to that, clear or properly applied.

[00:15:29] Speaker 04:
There are several other cases where de novo sufficiency of the evidence standard applies, too.

[00:15:35] Speaker 04:
And in those situations, the corpus delicti doctrine may arise as an issue within the sufficiency challenge, but there are primarily challenges to the sufficiency of the evidence, appealing denial of Rule 29 motions,

[00:15:52] Speaker 04:
And in that context, the de novo sufficiency standard is the correct one.

[00:15:57] Speaker 04:
Now, here, it doesn't make a difference.

[00:16:00] Speaker 04:
It's not dispositive, let alone making a difference, because on these facts, with this level of corroboration, this court can affirm.

[00:16:07] Speaker 03:
And so not only is it in the government's view... How does that analysis differ from the reasonable suspicion analysis, or does it?

[00:16:17] Speaker 03:
Applying the standard overview to... No, well, no, just the...

[00:16:21] Speaker 03:
the analysis under the corpus delicti, I mean, because it seems like a lot of the factors just roll over from the reasonable suspicion analysis.

[00:16:33] Speaker 03:
I mean, do we need to do something?

[00:16:36] Speaker 03:
Clearly, we have to have something different in that bucket, or else it's just a repeat.

[00:16:42] Speaker 04:
There can be.

[00:16:43] Speaker 04:
In fact, there is.

[00:16:44] Speaker 04:
Now, all the facts that go to reasonable suspicion also corroborate Behar's statements, statements in the field,

[00:16:50] Speaker 04:
and post-Miranda statements.

[00:16:51] Speaker 04:
Now that fact, two admissions, that's another indication that his confessions are reliable.

[00:16:57] Speaker 04:
And the court has said that on multiple occasions.

[00:17:01] Speaker 04:
Gonzalez-Gudinez is a good example.

[00:17:04] Speaker 04:
Niebla Torres, Hernandez, where there's multiple and here two close in time, substantively identical admissions, that fact alone shows the reliability.

[00:17:17] Speaker 04:
And when the second admission,

[00:17:19] Speaker 04:
is post Miranda videotaped, the defendant is afforded all the normal procedural protections, that can make the confession inherently reliable.

[00:17:28] Speaker 04:
So that's another important factor.

[00:17:30] Speaker 04:
The third aspect is the record checks and bear his own stipulation at trial that there was no public record of any kind of applications or some grant of permission for him to enter the US or have lawful status in the US.

[00:17:47] Speaker 04:
Now that's significant because, well, one, it again indicates he didn't have legal status and shows alienage.

[00:17:56] Speaker 04:
It also shows even more so the mode of entry because the reasonable inference is that when he didn't have legal status, had no permission, had no authorization, the way he came in was by, just as he said, illegally coming over the border fence and then entering the country that way to where he was stopped.

[00:18:16] Speaker 04:
There are multiple facts here, ample corroboration.

[00:18:20] Speaker 04:
This court has said on multiple occasions that it's just some evidence, just some independent evidence that's required.

[00:18:31] Speaker 04:
And that's only to avoid the potential risk of false confessions.

[00:18:36] Speaker 04:
Government just needs to show some independent evidence bolstering the confession.

[00:18:40] Speaker 04:
Here, that's present based on the circumstances of the apprehension, based on his multiple

[00:18:46] Speaker 04:
multiple confessions and the stipulation along with other facts.

[00:18:52] Speaker 04:
I'll submit unless the court has other questions.

[00:18:56] Speaker 03:
Thank you.

[00:19:04] Speaker 00:
I'd like to first address opposing counsel's reference that the only reason for the corpus delicti rule is to avoid use of course confessions.

[00:19:14] Speaker 00:
Lopez Alvarez and Judge Graber's concurrence in Garcia Villegas actually says that there's an additional motive, rationale for corporatism, and that's to avoid prosecutions where there's a lack of investigation.

[00:19:26] Speaker 00:
And that's somewhat of what we have here because there really wasn't much.

[00:19:32] Speaker 00:
And then getting into the

[00:19:37] Speaker 03:
There are inconsistencies and it may add an indicia of reliability as to the statements, but

[00:19:59] Speaker 00:
this court has consistently held that extrinsic independent evidence is needed even if there's multiple admissions.

[00:20:08] Speaker 00:
And so then I'd like to address your honor's question regarding the standard versus corpus delicti and reasonable suspicion because that's an issue I had.

[00:20:15] Speaker 00:
But I did not find any case law that

[00:20:18] Speaker 00:
it specifically addresses that.

[00:20:21] Speaker 00:
But if we do look at the case law, specifically Nedlia Torres, it says that the government needs substantial independent evidence.

[00:20:31] Speaker 00:
And although we need to reach beyond a reasonable doubt, there does need to be substantial evidence.

[00:20:38] Speaker 00:
And if we look how this court has actually applied that standard in cases, there's much more facts

[00:20:47] Speaker 03:
Relating to substantial independent evidence than there is here