[00:00:13] Speaker 01:
All right, counsel, you may proceed.

[00:00:15] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:18] Speaker 01:
Cindy Muro, Federal Defenders, on behalf of Mr. Santeno.

[00:00:21] Speaker 01:
I would like to reserve three minutes of my time for rebuttal, and I will keep my eye on the clock.

[00:00:26] Speaker 01:
This Court should remand for two reasons.

[00:00:28] Speaker 01:
First, the District Court erred when it failed to conduct the third step of Batson by not considering

[00:00:35] Speaker 01:
whether the prosecutor's explanation for its use of preemptory strikes was pretext for purposeful discrimination.

[00:00:41] Speaker 01:
And second, the district court denied Mr. Centeno a meaningful opportunity to present a defense when it excluded all mention of a Lanzapine, the common thread that made Mr. Centeno's documents relevant and his defense plausible.

[00:00:55] Speaker 01:
Turning to my first point, the only Batson issue before the court is whether the district court conducted the third step of Batson.

[00:01:01] Speaker 01:
Steps one and two of Batson are non-issues.

[00:01:04] Speaker 01:
because at trial, the prosecutor proffered reasons defending its use of preemptory strikes against women.

[00:01:09] Speaker 01:
That's in the record at 2ER 214.

[00:01:12] Speaker 01:
And the government doesn't dispute that the proffer occurred or that the proffer went to the second step of Batson.

[00:01:18] Speaker 01:
And that's important because in Hernandez versus New York, the Supreme Court recognized that once a prosecutor proffers reasons at step two of Batson, step one is moot.

[00:01:28] Speaker 00:
Well, what Hernandez says is that once the prosecutor proffers reasons and the district court makes a determination that there was no intentional discrimination, then step one is moot.

[00:01:41] Speaker 00:
But here, I mean, it's at least ambiguous, and I understand your submission to be that the district court did not make a determination that there was no intentional discrimination.

[00:01:51] Speaker 00:
So I'm not sure Hernandez quite says that in that situation, you can skip step one, does it?

[00:01:58] Speaker 01:
The court is correct, but I think all of the case law including case law from this court in United States versus McHale we see that the the facts before the courts in all of those cases They do talk about the third step But I think the difference is the reasoning described in the holdings of those cases which is that the courts are applying unemployment law principle that indicates once the

[00:02:23] Speaker 01:
In this case, the prosecutor provides a response regarding or defending its use of strikes.

[00:02:28] Speaker 01:
Then by virtue of that, the first step is moot because they're already defending the strikes in this case.

[00:02:36] Speaker 00:
So I take the point, but if we were to look at the first step, you have six strikes, right?

[00:02:44] Speaker 00:
If you make six strikes at random, like just by flipping a coin or names out of a hat or whatever, only about a third of the time will they be three-three men and women.

[00:02:59] Speaker 00:
Two-thirds of the time it will be more lopsided than that.

[00:03:02] Speaker 00:
And since you can have a, I mean, you can have a JEB challenge for excluding men as well as excluding women.

[00:03:06] Speaker 00:
So it seems sort of odd to say that there's a prima facie case when, I guess, would your position be that, like, anytime it's more lopsided than 3-3, that's a prima facie case?

[00:03:21] Speaker 01:
It could be, Your Honor.

[00:03:21] Speaker 01:
I think it's fact dependent.

[00:03:23] Speaker 01:
But the important point is that even striking a single juror for a discriminatory purpose is unconstitutional.

[00:03:29] Speaker 00:
Well, sure, but the question at step one is just, what's a prima facie case?

[00:03:33] Speaker 00:
And it seems strange to define a prima facie case in such a way that most of the time, even if the strikes are being made at random, there will be enough of an anomaly to call it a prima facie case.

[00:03:46] Speaker 01:
I think that's why there's steps two and step three of Batson.

[00:03:49] Speaker 01:
And so at the first step, it's just prima facie case.

[00:03:52] Speaker 01:
And then the second step, the prosecutor would have an opportunity to proffer reasons or explain the reason for its use

[00:04:00] Speaker 01:
of those strikes, and then at the third step of Batson, the question is whether those explanations given by the prosecutor were pretext for purposeful discrimination.

[00:04:10] Speaker 01:
And to answer whether the district court conducted the third step of Batson, the government hinges its entire argument on the fact that the district court used the word fair.

[00:04:18] Speaker 01:
And I think it's important to look at the context surrounding the use of the word fair.

[00:04:23] Speaker 01:
We see in the record at 2ER-215 that what occurred was that the prosecutor provided its explanation.

[00:04:30] Speaker 01:
Then in response, the district court said, quote, the court believes that's a fair explanation.

[00:04:36] Speaker 01:
And so looking at the record, we see that what the court was describing as fair was the explanation proffered by the prosecutor.

[00:04:43] Speaker 01:
And that is addressing step two of Batson and not step three, because at step two, the question is whether the prosecutor provided a permissible gender neutral justification for its use of strikes.

[00:04:55] Speaker 01:
Here the court said that it was fair answering step two.

[00:04:58] Speaker 01:
That's very distinct from the question at step three, which is whether that explanation proffered by the prosecutor was pretext for purposeful discrimination or not.

[00:05:06] Speaker 02:
Is there an objection at the time or a request that the district court make an express finding on the pretext issue?

[00:05:14] Speaker 01:
No, Your Honor.

[00:05:15] Speaker 01:
The government did not indicate that the defense did not raise a prima facie case.

[00:05:20] Speaker 01:
The government actually

[00:05:22] Speaker 01:
responded to the court's question whether they had a fair reason on two occasions.

[00:05:27] Speaker 01:
The record is a little bit split as to how that happened.

[00:05:30] Speaker 01:
What occurred was that Mr. Sentinel first made his bats and challenge.

[00:05:34] Speaker 01:
Then the court asked whether the government had a fair reason.

[00:05:38] Speaker 01:
The single response was yes, and then the court moved on.

[00:05:41] Speaker 01:
But later on, we see in the record at 2ER 214 that the prosecutor then asked for an opportunity to be able to provide or supplement the record.

[00:05:50] Speaker 01:
to provide its reasons for the strikes.

[00:05:55] Speaker 01:
Because the district court did not conduct the third step of Batson, the appropriate remedy here is to remand so that the district court can conduct the third step of Batson in the first instance.

[00:06:04] Speaker 02:
That's permitted by this court's case in... Council, didn't Ms.

[00:06:09] Speaker 02:
Wang say, I believe it's up to the defendant to make a prima facie showing of discriminatory intent first?

[00:06:18] Speaker 02:
And then the court seems to cut her off and say, did you have valid reasons?

[00:06:24] Speaker 02:
And Ms.

[00:06:24] Speaker 02:
Wang.

[00:06:26] Speaker 02:
By the way, is this Rosalyn Wang?

[00:06:28] Speaker 02:
No, it's Amy Wang.

[00:06:30] Speaker 02:
Pardon me?

[00:06:30] Speaker 02:
Amy Wang.

[00:06:31] Speaker 02:
Amy Wang.

[00:06:32] Speaker 02:
OK.

[00:06:34] Speaker 02:
Yes, Your Honor.

[00:06:35] Speaker 02:
And then the court denies the Batson motion.

[00:06:39] Speaker 02:
It's the shortcut.

[00:06:41] Speaker 02:
There's a lot of implied rulings in that, right?

[00:06:45] Speaker 01:
I agree with the court, and I think that's part of the reason why we believe the remand is the most appropriate remedy, because the district court was the one who was there who can answer the third question of Benson.

[00:06:54] Speaker 01:
But to answer the court's question here about what the prosecutor said at the time,

[00:07:00] Speaker 01:
What's important is that the court asked the prosecutor for reasons and the prosecutor responded.

[00:07:05] Speaker 01:
And so at that point, even though the court is correct that the court didn't specifically say yes, a prima facie case was met, by virtue of asking the prosecutor to proffer reasons for its use of strikes, it's demonstrating that the first step was met and is now moving on to step two.

[00:07:22] Speaker 01:
Turning to my second point, the district court erred in excluding any mention of a Lanzapine.

[00:07:29] Speaker 01:
I wanted to first begin by correcting a misperception from the record.

[00:07:32] Speaker 01:
Contrary to the government's brief, Mr. Centeno was never allowed to say that it was the same medication.

[00:07:37] Speaker 01:
What we see in the record at 2ER-306 was that the court asked the prosecutor whether they would allow Mr. Centeno to say that it was the same medication.

[00:07:47] Speaker 01:
The government and the prosecutor at the time did not want to allow Mr. Centeno to say that it was the same medication, ultimately objected to it, and the court, quote, said that they disallowed it.

[00:07:56] Speaker 01:
That's in the record at 2ER-306.

[00:07:59] Speaker 01:
And in doing so, the District Court aired in its application of Rule 403 because it overlooked the legal standard that emphasizes the exclusion of a criminal defendant's evidence under Rule 403 is an extraordinary remedy that should be used sparingly.

[00:08:15] Speaker 01:
That's from United States versus Hashir and United States versus Mende.

[00:08:19] Speaker 01:
And here, the United States District Court did not express any caution when choosing to exclude this evidence as it should have under this legal precedent.

[00:08:28] Speaker 01:
We see in Hashir that the exclusion of evidence that was excluded there was evidence that strongly supported the defendant's primary defense, and the court found that it was error for the court to do so.

[00:08:40] Speaker 01:
In Mende, the evidence that was excluded was evidence that was clearly probative of the defendant's knowledge, which was an issue in the case.

[00:08:48] Speaker 01:
Here, Mr. Santeno was attempting to admit evidence of the same medication, the medication that was found in the documents that he had with him when he came to the port of entry, which were documents from a previous time that he was in custody showing that he obtained a lanzapine then, an address book that he had with him when he came to the port of entry that again had a lanzapine, and separately a third document which was that he actually did obtain a lanzapine once he was arrested.

[00:09:12] Speaker 02:
Was your client prejudiced by not being able to

[00:09:17] Speaker 02:
said that it was the same drug or it was olanzapine every time.

[00:09:25] Speaker 01:
He was denied the opportunity to present a meaningful defense and a full defense and that's because Mr. Centeno was not able to create the connection.

[00:09:33] Speaker 01:
The only issue, really the entire trial hinged on the element of specific intent.

[00:09:39] Speaker 01:
Whether Mr. Centeno wanted to come into the United States to get arrested or whether he wanted to come into the United States to enter free from official restraint.

[00:09:46] Speaker 01:
to be free within the community.

[00:09:49] Speaker 01:
And so the government's argument was that he didn't want to get arrested, he wanted to sneak in and be here, whereas Mr. Centeno was using a Lanzapine to show that really what he wanted to do was be arrested.

[00:10:00] Speaker 01:
And that's important because

[00:10:04] Speaker 01:
It's kind of contradictory to say somebody wants to get arrested, I think.

[00:10:09] Speaker 01:
And so olanzapine is what allowed Mr. Sentinel, or would have allowed Mr. Sentinel, to show the reason why.

[00:10:15] Speaker 01:
Why would an individual want to ever be arrested?

[00:10:18] Speaker 01:
In Mr. Sentinel's case, that's because he wanted to obtain that same medication, medication he previously received, medication he was hoping to receive, and medication he did actually receive.

[00:10:28] Speaker 00:
And so for the jury,

[00:10:30] Speaker 00:
You know, had that been presented and had the jury accepted it, I mean, how would they have dealt with the fact that when he initially went to the border, he falsely claimed to be a U.S.

[00:10:47] Speaker 00:
national?

[00:10:47] Speaker 00:
Because I'm sort of putting myself in the frame of mind of a juror.

[00:10:51] Speaker 00:
I'm having trouble understanding

[00:10:53] Speaker 00:
how they would reconcile that with a desire to be taken into custody rather than a desire to be let into the United States free from restraint.

[00:11:02] Speaker 01:
Your honor, because it goes to the why.

[00:11:05] Speaker 01:
Why would he come to the port of entry?

[00:11:06] Speaker 01:
Why would he say those things?

[00:11:07] Speaker 01:
Why would he want to get arrested?

[00:11:09] Speaker 01:
I think in addition to the facts that the court mentioned about him stating he was a United States citizen, he also gave his full name, full date of birth.

[00:11:17] Speaker 01:
That ties to the fact that he was previously arrested.

[00:11:20] Speaker 01:
which is when he received a Lanzapine.

[00:11:23] Speaker 01:
And so a Lanzapine created that common thread throughout his documents that he had with him, what he said when he showed up to the port of entry.

[00:11:31] Speaker 01:
and what actually happened after he was arrested.

[00:11:34] Speaker 00:
And so the jury would have had to believe that had he not been sent to secondary inspection, his intent was to say, wait, if the guy had said, OK, thanks, go on, waved him through, he would then have had the intent to say, no, no, no, please don't let me in.

[00:11:55] Speaker 00:
I'm only here to be arrested.

[00:11:57] Speaker 01:
That's right, Your Honor, but I think that's why the appropriate remedy is to remand, to allow the jury to hear this evidence, to allow Mr. Sentinel to present that full, meaningful defense, so that he's able to present this to the jury, to thread that very important fact in support of his defense.

[00:12:18] Speaker 01:
You know, I think ultimately the court's correct.

[00:12:20] Speaker 01:
It's up to the jury to decide whether or not Mr. Centeno is guilty or not.

[00:12:23] Speaker 01:
But really the issue here is whether or not Mr. Centeno should have been provided that meaningful opportunity to present that defense to the jury.

[00:12:31] Speaker 00:
But I mean, I guess at this stage it's perhaps a question of whether the error might have been harmless or not.

[00:12:37] Speaker 01:
And Your Honor, we believe that the standard that the court should apply is that the conviction must be reversed unless the government can establish that the error was harmless beyond a reasonable doubt.

[00:12:48] Speaker 01:
And we don't think the government has met their burden here.

[00:12:51] Speaker 01:
The sole argument that they point to is the fact that Mr. Santeno was able to admit some of the other evidence that we were able to present.

[00:12:59] Speaker 01:
But again, I think there's a distinction between evidence that we were able to present that he wanted to get arrested versus the why.

[00:13:05] Speaker 01:
And the why ultimately here is what would make it a meaningful, full and complete defense that Mr. Centeno wasn't allowed to present.

[00:13:13] Speaker 01:
So while we were able to talk about other things like other items that he had with him, we weren't able to discuss that same medication that was throughout his documents.

[00:13:23] Speaker 02:
So the district court judge also precluded you from saying that it was the same medication throughout that he was seeking?

[00:13:34] Speaker 01:
Yes, that's correct.

[00:13:35] Speaker 01:
She did not allow us to say that it was the same medication, or even that it was a certain medication.

[00:13:40] Speaker 01:
So she did not let us thread that common thread throughout.

[00:13:44] Speaker 00:
And you referred us to page 306.

[00:13:48] Speaker 00:
There, the court does say, you can just say, did he get medication?

[00:13:53] Speaker 00:
And then, was the medication the same?

[00:13:55] Speaker 00:
So that seems like it was inviting you to do what Judge Worthlaw just suggested.

[00:14:00] Speaker 01:
Your Honor, if I can briefly respond, I see my time is elapsing.

[00:14:03] Speaker 01:
The court is correct, but if we keep going down that same page of 306, we see that at the very bottom the court disallows it.

[00:14:12] Speaker 01:
And so there's a conversation between the court with defense counsel and with the prosecution.

[00:14:16] Speaker 01:
And what the court is asking is whether or not the prosecutor would allow Mr. Sentinel to say if it was the same medication.

[00:14:24] Speaker 01:
Ms.

[00:14:25] Speaker 01:
Luce is the prosecutor.

[00:14:27] Speaker 01:
She explains why she doesn't believe that's the case.

[00:14:30] Speaker 01:
And then ultimately the court says, I disallow it.

[00:14:32] Speaker 01:
On the following page, the record at 307, we see that the court again explains that she's disallowing it.

[00:14:41] Speaker 01:
In the middle of the page I'm looking at, line 15, the court says, would you object if she said he did receive certain medication?

[00:14:47] Speaker 01:
So the court even walks it back from same medication.

[00:14:50] Speaker 01:
asks if he can say certain medication.

[00:14:52] Speaker 01:
Again, the government objects to that and ultimately on the next page, the court denies it at this time.

[00:14:59] Speaker 02:
It seems kind of odd that the district court judge is asking the prosecutor whether he or she would allow something.

[00:15:09] Speaker 02:
I mean, the district court judge has the power to allow it or not allow it.

[00:15:14] Speaker 02:
I agree with the court.

[00:15:15] Speaker 02:
OK.

[00:15:16] Speaker 02:
Thank you.

[00:15:16] Speaker 02:
I'll give you some rebuttal time.

[00:15:17] Speaker 02:
Thank you.

[00:15:39] Speaker 03:
Good morning, Your Honors, and may it please the Court, Andrew Hayden, on behalf of the United States.

[00:15:44] Speaker 03:
There is no evidence the prosecution was concerned about gender when it used four peremptory strikes on female jurors.

[00:15:51] Speaker 03:
I want to start with the prima facie case discussion that was being had.

[00:15:56] Speaker 03:
There was no definitive prima facie ruling, and that's why it's important to note that, not like a coin flip, but in this case, four of six,

[00:16:05] Speaker 03:
When you look at a prima facie case, you can also then look to the other facts and relevant circumstances of the case.

[00:16:11] Speaker 03:
And there's nothing about Mr. Centeno's case that would imply that the prosecution was focused on gender.

[00:16:16] Speaker 02:
It doesn't make sense, though, to go back and revisit the first step of Batson, whether it's a prima facie case when we've already proceeded to the second step and the government has presented reasons.

[00:16:35] Speaker 02:
seems as though the first question is mooted by, it should be mooted by that because you're presenting and the, I know it wasn't you, but the council did say we have a valid reason, we have a fair reason and in the court world that it was fair, she didn't say, she didn't say it was not pretextual but

[00:17:02] Speaker 02:
She said it was fair.

[00:17:03] Speaker 02:
This is experience as a court judge.

[00:17:06] Speaker 02:
I think that's what she was saying by saying it's fair.

[00:17:09] Speaker 02:
So why are we even going back to whether or not a prima facie case was established?

[00:17:16] Speaker 03:
Sure.

[00:17:16] Speaker 03:
In the first instance, it's the United States position that the court doesn't need to.

[00:17:20] Speaker 03:
Because if we move through all three steps, and if all three steps were completed, which the United States believes they were, the record could be more robust.

[00:17:29] Speaker 03:
But you see Judge Huff saying in the end,

[00:17:32] Speaker 03:
taking through as she listens to each juror, each of the reasons for the strikes of the prospective jurors, that's fair, that's a fair reason, that's fair, that's fair.

[00:17:40] Speaker 03:
That's non-discriminatory.

[00:17:43] Speaker 03:
She says that at the end.

[00:17:44] Speaker 03:
And so based on that analysis, and then the defense comes back, and on ER page 216, they're given an opportunity to explain more about why they've proven purposeful discrimination, and they focus on the jurors that the United States has stricken based on their perspectives of

[00:18:01] Speaker 03:
immigration and deportations which was relevant to the cases but so to take your point your honors point the United States primary position is although the record could have been more robust all three steps were Conducted by the district court and denied, but if there was no meaningful Yes, you want to say if we if we're inclined to reverse because she didn't say make the third

[00:18:24] Speaker 02:
the finding a third step then you want us to look at the prima facie case.

[00:18:27] Speaker 03:
Then you can, but even if the court thinks that it was met because now we... Maybe we should make clear that... I don't know.

[00:18:36] Speaker 02:
We don't like to impose magic words on district courts, but maybe district courts should make clear what their ruling is at each step.

[00:18:48] Speaker 02:
But that's in order not to create appellate issues.

[00:18:53] Speaker 03:
I think this court has recognized, especially when the court's doing oral rulings in the context of bats, and that the paragon of clarity is not required.

[00:19:02] Speaker 03:
And the United States agrees, but the record in a more holistic frame, if you look at the initial assertion, four out of six, not rising to the level of six of six, if the United States was, if the prosecutors were focused improperly on gender,

[00:19:17] Speaker 03:
The ultimate jury was 8 for 12, female 9 for 14.

[00:19:22] Speaker 02:
What was the veneer pool like?

[00:19:25] Speaker 02:
What percentage was when they came in as a pool?

[00:19:29] Speaker 03:
Right before the peremptories, Your Honor, as best we can tell, because this is one of the challenges, is that picking up gender.

[00:19:37] Speaker 03:
But before the peremptory strikes, it was split 15 for 15.

[00:19:40] Speaker 03:
So sort of picking up on Judge Miller's comment, at that point,

[00:19:44] Speaker 03:
Three of six prempres would have been consistent with the panel, but all four of the strikes that the United States chose to exercise, there were comments in the record that justified gender neutral reasons that were nondiscriminatory for the strikes to be expressed.

[00:20:06] Speaker 03:
Never mind.

[00:20:06] Speaker 03:
You're right.

[00:20:07] Speaker 03:
So I think that that goes to the point, though, if this court

[00:20:13] Speaker 03:
The United States doesn't think that magic words need to be used, but this record could have been more robust.

[00:20:17] Speaker 03:
But maybe the point, too, is that the defense has requested a remand.

[00:20:21] Speaker 03:
And under Nishida, for example, this court has held that if a hearing like that would be helpful to further develop the record, then that can be an appropriate remedy.

[00:20:31] Speaker 03:
But more specifically and more recently, or in 2015, this court in Alvarez-Uloa said that the de novo review can be more appropriate when

[00:20:41] Speaker 03:
There is a sufficient record and there's nothing that a hearing long attenuated in time from the original trial would illuminate the records in a significant way.

[00:20:52] Speaker 03:
For example, if the strikes that had been used by the prosecutor had

[00:20:56] Speaker 03:
relied on the tone or the demeanor of the perspective jurors.

[00:21:00] Speaker 03:
But that's not the case here.

[00:21:02] Speaker 03:
The reasons that the prosecutors used to strike all four of the female jurors that are at issue were based purely on their narrative responses to the district court's questions.

[00:21:11] Speaker 03:
And so it was the district court's interaction with them, and then it's the prosecutor using the semantic language of their answers to justify their strikes.

[00:21:20] Speaker 03:
So the record here is sufficiently developed.

[00:21:22] Speaker 03:
So if the court thinks that the third step wasn't meaningfully done, a remand is not necessary because the record exists and this court can do a meaningful de novo review.

[00:21:33] Speaker 02:
I think the second argument is a stronger argument.

[00:21:37] Speaker 02:
So assume with me that I would think that it was the evidence that it was the same medicine or it was olanzapine would have

[00:21:52] Speaker 02:
bolster the defense and that the failure to let that evidence in hampered the constitutional right to have a complete defense.

[00:22:03] Speaker 02:
Why is it harmless beyond a reasonable doubt?

[00:22:06] Speaker 03:
Sure.

[00:22:07] Speaker 03:
A couple things.

[00:22:08] Speaker 03:
First, Your Honor, the United States respectfully disagrees with the characterization of the record.

[00:22:13] Speaker 03:
On page 306, the district court does say you can say the same medication, but here's what didn't.

[00:22:19] Speaker 02:
Right, but then

[00:22:21] Speaker 02:
The prosecutor objected to that.

[00:22:24] Speaker 03:
Well, the concern was, if you look at the record, the defense attorney is concerned.

[00:22:30] Speaker 03:
At that point, they're cross-examining the a-file custodian.

[00:22:34] Speaker 03:
And the defense attorney says, well, this witness doesn't have personal knowledge that it was the same medication.

[00:22:40] Speaker 03:
And similarly, the doctor wouldn't have personal knowledge of the medications prescribed in a previous custodial term.

[00:22:47] Speaker 03:
But what we've mentioned in our brief is the evidence of Alansapine was already in the record.

[00:22:52] Speaker 03:
The address book that had Alansapine written in it unredacted had already been admitted.

[00:22:58] Speaker 03:
And so there could have been a posture where the defense attorney could have simply asked the doctor, can you please look at what has been previously admitted?

[00:23:06] Speaker 03:
Do you see the same medications that you prescribed in this previous address book?

[00:23:11] Speaker 03:
But more importantly, to your point, Your Honor,

[00:23:13] Speaker 03:
In order for this court to reach the harmless error analysis, or the reasonable doubt analysis, it would have to be that they were meaningfully denied a complete defense.

[00:23:24] Speaker 03:
And that's not torn out in the record.

[00:23:25] Speaker 03:
The defense actually opened on this theme.

[00:23:29] Speaker 03:
On the ER page 211, in the opening statement, they told the jury that he was coming back for medication that he had been given in custody.

[00:23:39] Speaker 03:
And then in closing, they argued on page 462 he wanted his medication.

[00:23:45] Speaker 03:
They were able to make those arguments.

[00:23:47] Speaker 03:
And so the United States position is the specific name of the narcotic.

[00:23:51] Speaker 03:
the anti-psychotic medication only invited confusion or speculation and wasn't necessary for that complete defense because they argued more completely that he was cold, hungry, dirty, he didn't have cash or a cell phone, he had his birth certificate and gave his correct name.

[00:24:10] Speaker 03:
The totality of the circumstances, including getting medication, were much stronger than the specific name of the medication.

[00:24:19] Speaker 00:
So I mean I take the argument from your friend on the other side to be Sort of the flip side of old chief right I mean like that they're entitled to present like their story in some coherent way with all of the details Yes, not some you know sanitized stylized version that you know requires the jury to connect you know a medication to a medication so even

[00:24:44] Speaker 00:
And like including all the details as a more effective way of telling a story, so why aren't they entitled to do that?

[00:24:51] Speaker 03:
You're right.

[00:24:52] Speaker 03:
It's because in this specific case the rules of evidence still still control and the 403 Limitations on this specific medication alanzapine is an antipsychotic the defense prior to trial had not noticed under rule 12 that

[00:25:05] Speaker 03:
Insanity defense or diminished capacity fence so the specific nature of the medication which has the potential to be confusing misleading and highly inflammatory and wasn't relevant to the defendant's ability to form the appropriate mens rea to commit the crime in this case Was had the real potential to be a distraction and cause the jury to investigate other things the jury would know what a lens a pin is and

[00:25:29] Speaker 03:
I think it's possible that they would have speculated, given that level of specificity, Your Honor.

[00:25:35] Speaker 02:
Let me just ask you this.

[00:25:36] Speaker 02:
Couldn't a jury instruction have cured any of that, especially since there wasn't a defense of insanity?

[00:25:45] Speaker 03:
There perhaps could have been a curative that could have instructed them.

[00:25:49] Speaker 03:
It also could have highlighted or drawn more attention to the specific nature of that medication.

[00:25:53] Speaker 02:
Okay, but what about the fallback to say it was the same medication he was returning for?

[00:25:58] Speaker 02:
Why was that disallowed?

[00:25:59] Speaker 03:
Your honor, respectfully, we would contend it was not disallowed.

[00:26:03] Speaker 03:
It was just that the defense didn't perceive the way to get to that actual argument.

[00:26:08] Speaker 03:
They could have done it under 8036, or they could have done it under drawing, having subsequent witnesses look at evidence that had already been admitted.

[00:26:15] Speaker 03:
And so when Judge Huff asks the prosecutor, will you agree,

[00:26:20] Speaker 03:
It really is the afile custodian going to agree in his personal knowledge that they were the same, and he didn't have the ability to swear to that under oath.

[00:26:28] Speaker 03:
But those evidentiary links could have been put together in other ways.

[00:26:33] Speaker 03:
And to go originally to your point about harmlessness, Your Honor,

[00:26:37] Speaker 03:
We're talking about one piece of the puzzle the briefs on appeal make it seem that a land subpoena was the crucial piece that that was the kingpin to the entire argument but really with the evidence that was presented and if you look at the cross examinations by the defense.

[00:26:52] Speaker 03:
They painted the whole picture about everything that Mr. Centeno did and did not bring to the port of entry that day.

[00:26:59] Speaker 03:
And the jury heard all of that.

[00:27:00] Speaker 03:
They heard all of those reasons.

[00:27:02] Speaker 03:
And to pick up on what Judge Miller had referenced, what they also heard is that the first thing he said when he got to the port is that he was American, and he presented a California ID, and that that was

[00:27:15] Speaker 03:
what they considered in the context of him them being arrested having made substantial steps to try to enter the United States free from official restraint.

[00:27:26] Speaker 02:
Saying I'm an American the same as saying I'm a US citizen.

[00:27:33] Speaker 03:
I think in that context, in that colloquial context, I would think it is, Your Honor.

[00:27:37] Speaker 03:
You're at a port of entry talking to a customs officer.

[00:27:40] Speaker 03:
I think you're requesting entry based on citizenship because that is the import of the inquiry as you stand there at the booth.

[00:27:48] Speaker 03:
And the jury heard that, and they were then able to balance that against the totality of the other facts that the defense had argued, and they rejected it.

[00:28:00] Speaker 03:
And more importantly, Your Honor, I think in regards to the district court's allowance of that specific name, because the defense was not precluded from presenting a complete defense,

[00:28:12] Speaker 03:
They may have not allowed that one specific name.

[00:28:15] Speaker 03:
And we're back in abuse of discretion.

[00:28:16] Speaker 03:
And so it's not illogical or implausible for Judge Huff to have felt like this could be confusing, misleading, unduly prejudicial, all words that had come up in the context of these discussions.

[00:28:29] Speaker 03:
Thank you, Your Honor.

[00:28:44] Speaker 01:
A few points, Your Honors.

[00:28:45] Speaker 01:
To start, the government conceded that the record could have been more robust.

[00:28:50] Speaker 01:
That's important when discussing Batson because the appropriate remedy here is remand.

[00:28:56] Speaker 01:
The record isn't clear enough for the court to conduct the third step of Batson in the first instance on appeal.

[00:29:01] Speaker 01:
And it also shows that the third step of Batson was not conducted because at a minimum for the third step of Batson, the court must include a clear record that the trial court made a deliberate determination.

[00:29:12] Speaker 01:
So while the court is correct that there's no need for magical words, there does need to be a clear record that that deliberate determination was made at step three.

[00:29:21] Speaker 01:
Second, and turning to my second point regarding the same medication, there is a difference between being able to say that Mr. Sentinel wanted to obtain medication versus the same medication or the same prescription medication or a Lanspin.

[00:29:36] Speaker 01:
And the reason why that's different is because, and we talk a little bit about it in our briefing, is that

[00:29:41] Speaker 01:
Medication can include anything like Tylenol or Motrin, something that's over the counter.

[00:29:47] Speaker 01:
The same medication is what threads the loop on it being the same medication found in the documents he had from his prior time in custody in the address book and that he also obtained afterwards.

[00:29:59] Speaker 01:
And then prescription medication obviously adds another layer indicating that it was a prescription medication.

[00:30:03] Speaker 01:
So any confusion of the jury could have been dissuaded, as the court noted, through a curative instruction, things of that sort.

[00:30:12] Speaker 01:
And to address the government's contention that Mr. Centeno would have otherwise been able to indicate that it was the same medication possibly through other forms or other avenues in other witnesses, that's incorrect.

[00:30:27] Speaker 01:
After Mr. Centeno admitted the address book that included the annotation of olanzapine in it, Mr. Centeno then attempted to elicit from the defense investigator whether that same medication was also found in the documents that Mr. Centeno had on his person.

[00:30:42] Speaker 01:
And the court did not allow it.

[00:30:44] Speaker 01:
In fact, the court went into recess and discussed why the defense should not be allowed to say that it was the same medication or to say that it was allowance of pain.

[00:30:54] Speaker 01:
At every step that Mr. Centeno tried to discuss this same medication because it was so important to his defense, the court disallowed it.

[00:31:02] Speaker 01:
Thank you.

[00:31:03] Speaker 02:
Thank you very much, counsel.

[00:31:05] Speaker 02:
USB Centeno will be submitted.