[00:00:05] Speaker 01:
Good evening, Your Honors, and may it please the Court.

[00:00:07] Speaker 01:
Joshua Jones on behalf of defendant appellant Carla Cortez-Naveh.

[00:00:11] Speaker 01:
I'm going to try to reserve three minutes for rebuttal with the Court's permission.

[00:00:15] Speaker 01:
I'm going to start with the issue of the admission of Ms.

[00:00:19] Speaker 01:
Carla Cortez-Nava's refusal to consent to a search of her vehicle just prior to her arrest in this case.

[00:00:26] Speaker 01:
That information was admitted on the testimony of officer sides at her trial.

[00:00:31] Speaker 01:
It wasn't just admitted, but it was emphasized during that testimony, and it was also further emphasized and argued, both in opening statement and in closing argument in this case.

[00:00:40] Speaker 04:
Without objection.

[00:00:41] Speaker 01:
That's true.

[00:00:42] Speaker 01:
We can see that we are on plain air as a result of that, Your Honor.

[00:00:45] Speaker 04:
And there was also, defense counsel brought it up during his examination of the officer, correct?

[00:00:52] Speaker 01:
He said... After it was admitted, there was, I believe, a brief reference to it on cross-examination.

[00:00:57] Speaker 01:
Yes, though it would be our position that once they opened on it and introduced it in direct examination, it would have to be addressed because it is the kind of information that a jury is almost certainly going to

[00:01:11] Speaker 01:
consider in making their conclusions.

[00:01:13] Speaker 01:
I think that the nature of the error here and the extent to which it was emphasized is what makes this a plain and clear error for the court.

[00:01:25] Speaker 01:
There was some dispute, and I want to start by trying to clarify the factual record with regard to the evidence that was actually admitted regarding the refusal to consent.

[00:01:35] Speaker 01:
In their response brief, the government attempts to cast

[00:01:38] Speaker 01:
the evidence that was admitted as merely admitting that Ms.

[00:01:41] Speaker 01:
Carla Cortez-Nava stated that she requested a ticket.

[00:01:47] Speaker 01:
First of all, we do dispute that characterization.

[00:01:49] Speaker 01:
The exact words that she said were, I just need my ticket, no question mark.

[00:01:54] Speaker 01:
But the reality is, if you look at the entirety of that exchange between Ms.

[00:01:59] Speaker 01:
Cortez-Nava and officer sites, it's very clear that she invoked her right not to consent to the search of her vehicle.

[00:02:06] Speaker 01:
She was initially handed a consent to search form.

[00:02:09] Speaker 01:
After she was handed that consent to search form in response to questioning from the officer,

[00:02:14] Speaker 01:
She stated, I don't need you to be searching my car.

[00:02:18] Speaker 01:
The officer then followed up and asked if she had any drugs in there.

[00:02:22] Speaker 01:
She said, no, there were no drugs in the car.

[00:02:25] Speaker 01:
And in response to that, he said, OK, well, no problem then, meaning if there's no drugs in the car, there's no problem with me searching.

[00:02:32] Speaker 01:
And in response to that, she flatly stated, no.

[00:02:36] Speaker 04:
So if we assume that this was error, and it was plain error, we still have to determine that it

[00:02:46] Speaker 04:
The outcome of the proceeding would have been different, right, because we're on plain error review.

[00:02:51] Speaker 04:
And there was no request for an instruction for the court to strike the testimony or do anything to try to cure it.

[00:02:58] Speaker 04:
But meanwhile, we have to decide that this error made a difference.

[00:03:03] Speaker 04:
And how can we reach out?

[00:03:04] Speaker 04:
I mean, the evidence seems pretty compelling.

[00:03:07] Speaker 04:
I would call it overwhelming that the jurors, if this hadn't been admitted, she wouldn't have been convicted.

[00:03:15] Speaker 01:
Yes, your honor we would have to we do have to establish that there's a reasonable probability of a different outcome for the third prong of the plane air analysis And I do think we can do that here certainly the government did have some strong evidence specifically the evidence that Miss Cortez Nava was observed present when the opaque black bags that were not it were placed in the trunk of her vehicle but I think this court should look to the similar factors that the court uses when an L Anna analyzing Doyle air for that third prong and those factors include the

[00:03:44] Speaker 01:
the extent of the comments, whether the inference was stressed, and the weight of the evidence.

[00:03:49] Speaker 01:
So I think on both of those first two prongs, this is an unusually strong case for the defendant, given the repeated emphasis throughout the case on those things.

[00:03:57] Speaker 01:
But even when we get to the strength of the evidence in this case, I do think there's some additional context the court should take into consideration.

[00:04:03] Speaker 01:
First of all, in this case, one thing that's unique is that there is no dispute that Ms.

[00:04:09] Speaker 01:
Cortez-Nava never saw what was inside of those bags.

[00:04:13] Speaker 01:
There was aerial surveillance that shows that after the bags were placed in the trunk, the trunk was closed.

[00:04:20] Speaker 01:
Ms.

[00:04:20] Speaker 01:
Cortez-Nava never saw that.

[00:04:22] Speaker 01:
In most cases, we don't have that information if something's found in the car.

[00:04:26] Speaker 01:
kind of a presumption that person has access to all areas of the car and could have checked it to know what's in the vehicle.

[00:04:32] Speaker 01:
Furthermore, I think while there is significant evidence in the amount of drugs that was found in the vehicle, there was all of the evidence with regard to the

[00:04:42] Speaker 01:
Ms.

[00:04:43] Speaker 01:
Cortez-Nava's mental state in terms of whether or not she knew what was in the bag were all based on inferences.

[00:04:52] Speaker 01:
And that was based on the fact that the government had this kind of extensive investigation.

[00:04:57] Speaker 01:
And I would say they have what, in the trial court, I would call a wide net problem.

[00:05:02] Speaker 01:
There was a lot of advanced technology that was used here.

[00:05:05] Speaker 01:
There was evidence of aerial surveillance of the vehicle.

[00:05:08] Speaker 01:
There was evidence that GPS trackers had been placed on cars.

[00:05:10] Speaker 01:
There was evidence of undercover officers.

[00:05:13] Speaker 01:
And none of that evidence involved Ms.

[00:05:14] Speaker 01:
Cortez-Navarro.

[00:05:15] Speaker 04:
But the evidence showed that they had surveilled somebody selling drugs, genetic cover officer, and that same person is the person that your client met in the parking lot and he transferred the bags that contained nearly $900,000 worth of fentanyl into her car.

[00:05:33] Speaker 04:
But on top of that, there's also when the dog sniffed the car and alerted, and then had probable cause of search, and they opened the bags, and it was, in fact, fentanyl.

[00:05:44] Speaker 04:
And then they have the messages on one of her two cell phones that they have expert testimony describing that as negotiating drug sales.

[00:05:53] Speaker 04:
So that's pretty powerful evidence.

[00:05:55] Speaker 04:
I think your case really hinges on the court accepting all of your arguments so that the other evidence is excluded.

[00:06:02] Speaker 04:
But when that evidence comes in, then it's a lot of evidence that she wasn't an unwitting courier.

[00:06:10] Speaker 04:
These weren't drugs that were hidden in her vehicle and she came over the border, for example, and she didn't know they were there.

[00:06:15] Speaker 04:
These are drugs.

[00:06:16] Speaker 04:
This is material that turns out to be drugs that she knew was placed in her car.

[00:06:21] Speaker 04:
They have the photographs of her standing there by the opening with the known dealer, putting these bags in her car.

[00:06:28] Speaker 04:
So I'm having a hard time seeing that the fact that they surveilled her from the air or that there were trackers would somehow undercut the way to the evidence.

[00:06:38] Speaker 01:
Well, I guess two points I want to address there.

[00:06:41] Speaker 01:
The first one is, you know, I think it was the defense's theory and part of their case that, yes, there was this person who the government had substantial evidences involved in drug trafficking.

[00:06:51] Speaker 04:
And that he sold drugs to an undercover agent.

[00:06:53] Speaker 04:
Right.

[00:06:54] Speaker 04:
That's pretty compelling evidence.

[00:06:55] Speaker 01:
Well, yes, he sold drugs to an undercover agent, and there was information about how that transaction took place, but there was no evidence with regard to Ms.

[00:07:02] Speaker 01:
Cortez-Nava in terms of any communications with that individual.

[00:07:07] Speaker 01:
They had both of the phones that were involved, and there was nothing to specifically indicate that she would have been aware of what was being... Excuse me.

[00:07:14] Speaker 00:
At trial, did she offer any explanation of why this known drug dealer deposited two large trash bags in her car, in the trunk of her car?

[00:07:23] Speaker 01:
Ms.

[00:07:24] Speaker 01:
Cortez-Nave did not testify, so there was no affirmative evidence with regard to an explanation.

[00:07:29] Speaker 01:
I do think that the prejudice here is buttressed by the admission of that 404B evidence that the court referenced specifically, the text messages with an unknown number that took place about a month before the start of the charge conspiracy.

[00:07:44] Speaker 01:
That information, the defense did move to exclude that motion, was denied with regard to excluding that 404B evidence.

[00:07:52] Speaker 01:
And I don't think that there was sufficient evidence to establish that that could be evidence to show that she had knowledge of the drugs in the car a month later.

[00:07:59] Speaker 01:
the government essentially conceded that those messages were not related to this transaction.

[00:08:06] Speaker 02:
What were they related to?

[00:08:07] Speaker 02:
What was she discussing when she was discussing prices?

[00:08:12] Speaker 01:
I don't think we're disputing that it's certainly a possible inference from those messages that they were regarding drugs.

[00:08:19] Speaker 01:
The issue is whether that

[00:08:20] Speaker 01:
if we assume that that's drug activity, as the government describes it, brokering drug prices.

[00:08:25] Speaker 01:
I think that's the worst interpretation for us in terms of incriminating evidence from it.

[00:08:30] Speaker 01:
If we assume that, we still have to ask the question under Rule 404b whether or not the government can establish a logical nexus

[00:08:37] Speaker 01:
to her knowledge of the drugs in this case that does not involve merely the propensity inference that because she was involved in drug trafficking on this prior occasion that she was involved in drug trafficking on this occasion.

[00:08:49] Speaker 01:
And I think there's some things here that distinguish this case from other cases where this court has found that prior drug evidence or drug transactions or crossings were proper 404B.

[00:09:00] Speaker 01:
There's very little evidence about what that transaction

[00:09:04] Speaker 01:
The government's evidence is that it involved brokering, and there's a talk of numbers there.

[00:09:12] Speaker 01:
But in the other cases where this court has addressed 404B evidence, for example, Jimenez-Chávez, the court focused on how the prior drug transaction was done.

[00:09:24] Speaker 01:
And it was situations where a drug

[00:09:26] Speaker 01:
Defendant had previously crossed the border, placed their car in the same garage and engaged in similar conduct to what was alleged in that case, and had done it on multiple occasions.

[00:09:36] Speaker 01:
And the court's been very explicit that we have to talk about that how, because otherwise we fall into the trap that we could just be engaging in an improper propensity inference.

[00:09:46] Speaker 01:
And here, we don't know really much of anything about the how, because we have about six text messages, and we don't know who they're with.

[00:09:55] Speaker 01:
by the government's own explanation, it's supposed to be about brokering, not about transporting drugs.

[00:10:01] Speaker 04:
Well, it's about drug trafficking.

[00:10:02] Speaker 04:
So, I mean, for 404B, one of the exceptions to allow the evidence to come in is knowledge, and she's disputing knowledge.

[00:10:10] Speaker 04:
So the defense, I assume, was that these bags were placed in her car, but she didn't know what was in them, or she thought it was something else.

[00:10:19] Speaker 04:
But these messages from just a month before indicate that she was engaged in selling drugs.

[00:10:27] Speaker 04:
That would undercut her claim that she had no knowledge when she received $900,000 worth of fentanyl from a known drug dealer that it wasn't drugs.

[00:10:36] Speaker 01:
Your Honor, our position is that the only way that it undercuts that is if you presume, because she was involved in drug activity before, she was involved in drug activity now.

[00:10:45] Speaker 01:
All of the other cases that this Court has affirmed this kind of 404b evidence have said, this particular thing gave that person notice.

[00:10:53] Speaker 01:
So let's say, for example, if you were to say, OK, that prior transaction means she knows what methamphetamine looks like, or she has some sort of knowledge that would prevent.

[00:11:02] Speaker 01:
But here,

[00:11:03] Speaker 04:
Was it the same kind of drug I?

[00:11:05] Speaker 04:
You're reminding me that I think there were two types of drugs in the vehicle was it meth and fentanyl so and the expert Testified that they were discussing prices for a particular kind of drug So that she would have been the inference was she was engaged in selling the same type of drug so it's some similarity to the current offense and

[00:11:30] Speaker 01:
Yes, I mean that is to say that it was the same type of drug but I don't think that this court has ever

[00:11:37] Speaker 01:
approved the admission of 404B evidence merely on the fact that it was the same, the person had a prior conviction or prior alleged conduct involving sale of the same type of drug.

[00:11:49] Speaker 01:
The mere fact that the person's engaged in selling a particular type of drug does not show that they have knowledge of what's inside of a sealed black bag in their trunk, particularly in a situation where there's no evidence

[00:12:01] Speaker 01:
that she looked inside the bag.

[00:12:03] Speaker 01:
So it was a question of like, oh, well, if she saw it, she would have known for sure what it was because she had some prior familiarity.

[00:12:10] Speaker 01:
But even that is not clear from the text messages, because as the government describes it, this is about a series of seven text messages.

[00:12:18] Speaker 01:
according to them about like brokering or trying to arrange some sort of sale.

[00:12:22] Speaker 01:
And so the other cases where this court has approved it has been where the defendant engages in the same kind of conduct.

[00:12:29] Speaker 01:
So crossing marijuana across the border has been admitted for crossing a different kind of drugs across the border to show familiarity with that cross-border process.

[00:12:40] Speaker 01:
Or somebody bringing in drugs by a panga boat

[00:12:45] Speaker 01:
has been admitted to show that they have familiarity of how to, you know, use a ponda boat to navigate the waters.

[00:12:51] Speaker 01:
Here we don't have those kinds of similarities.

[00:12:53] Speaker 01:
We're talking about a different type of conduct, one brokering, one transportation, and we're talking about with different parties at least a month before the charge.

[00:13:03] Speaker 02:
Council, where did the defendant live?

[00:13:06] Speaker 02:
In San Diego?

[00:13:07] Speaker 02:
Yes.

[00:13:08] Speaker 02:
She mentions that in the transcript here in Los Angeles, I get them for $1,200.

[00:13:14] Speaker 02:
So she's talking about drugs that somehow are in Los Angeles, not in San Diego, right?

[00:13:23] Speaker 02:
So can't you infer from that that she's dealing in drugs in Los Angeles?

[00:13:29] Speaker 01:
So I guess two points.

[00:13:32] Speaker 01:
One, I think the message that you're referring to is a message from the other party, not from Ms.

[00:13:37] Speaker 01:
Cortez-Nava.

[00:13:38] Speaker 01:
But we don't dispute that there is a reference to here in LA or something along those lines.

[00:13:44] Speaker 01:
But I don't think the mere, again, I think the mere engaging in drug activity at a location does not, unless you engage in a propensity inference, make it more likely that she has knowledge on a specific occasion a month later.

[00:14:02] Speaker 04:
Counsel, you're at about a minute.

[00:14:03] Speaker 04:
Did you want to reserve time?

[00:14:04] Speaker 01:
Yes.

[00:14:05] Speaker 04:
I'll give you a couple minutes.

[00:14:13] Speaker 03:
Good morning, Your Honors.

[00:14:14] Speaker 03:
May it please the Court, Mark Grady, for the United States.

[00:14:17] Speaker 03:
I'm going to pick up where the defense left off with the 404B.

[00:14:21] Speaker 03:
As this Court knows, the District Court has broad discretion to decide issues of 404B.

[00:14:27] Speaker 03:
It doesn't have to be as high a hurdle as the defense counsel is making it out.

[00:14:31] Speaker 03:
As the Court is well aware of the four-factor test, in this case, this defendant was found with 87 pounds of methamphetamine, that's wholesale quantities,

[00:14:43] Speaker 03:
In six weeks earlier, this text message was referencing the same wholesale prices for methamphetamine.

[00:14:50] Speaker 03:
It was talking about her getting a commission.

[00:14:52] Speaker 03:
There was a reference to bringing it up to Los Angeles.

[00:14:56] Speaker 03:
With that level of similarity, it doesn't have to be any more so as the government's position.

[00:15:01] Speaker 02:
And what's interesting is... Where is there any evidence that she was transporting?

[00:15:05] Speaker 03:
Well, there's a reference at the end of that text message.

[00:15:08] Speaker 03:
Can you bring it up to me?

[00:15:09] Speaker 03:
But your question, Your Honor, I wanted to make this point, too.

[00:15:13] Speaker 03:
Usually with propensity evidence, there's a concern.

[00:15:15] Speaker 03:
This wasn't an arrest.

[00:15:17] Speaker 02:
I see it.

[00:15:18] Speaker 03:
I'm 892.

[00:15:19] Speaker 03:
Can you bring it up?

[00:15:20] Speaker 03:
Right.

[00:15:21] Speaker 03:
This was not an arrest.

[00:15:22] Speaker 03:
This was not a conviction.

[00:15:23] Speaker 03:
For all we know, this deal may never have happened.

[00:15:26] Speaker 03:
knowledge, as Judge Beatty pointed out, that is specifically in the text of Floor 4B.

[00:15:31] Speaker 03:
This evidence actually had less of a propensity danger because it wasn't an arrest or conviction, but what it shows is that this defendant knows enough to be sophisticated enough about the prices in LA, and she's heading to LA when she's arrested.

[00:15:46] Speaker 03:
She's talking about getting a commission.

[00:15:48] Speaker 03:
On that record, I don't think the district court can be said to abuse this broad discretion in allowing this evidence.

[00:15:57] Speaker 03:
shifting unless the court has any further questions about the 404b.

[00:16:01] Speaker 03:
to get to the Prescott question.

[00:16:03] Speaker 03:
The defense had this evidence a long time ahead of trial.

[00:16:08] Speaker 03:
I don't believe that the district court didn't notice any problem with it.

[00:16:13] Speaker 03:
We pointed out in our reply brief that officer sides never testified that the defendant refused consent.

[00:16:21] Speaker 03:
And we're not trying to dance on the head of a pin here.

[00:16:23] Speaker 03:
There was only one specific question asked of him at three excerpt of record, 491.

[00:16:30] Speaker 03:
or 490, what did you do?

[00:16:32] Speaker 03:
I handed her a consent to search form.

[00:16:34] Speaker 03:
And then there is no talk about, well, did she say yes or no?

[00:16:38] Speaker 03:
In Prescott, the officers came to the defendant's apartment.

[00:16:44] Speaker 03:
They're looking through a glass window, and they said, you know, can we come in?

[00:16:47] Speaker 03:
And she says, do you have a warrant?

[00:16:48] Speaker 03:
They say no, and then she just stands there.

[00:16:51] Speaker 03:
And then they end up breaking down the door.

[00:16:52] Speaker 03:
And Gasho, the other case that the defense cites,

[00:16:55] Speaker 03:
which stands for the proposition of passive refusal, those two defendants, husband and wife, they actually refused to turn over aerial log books and said, you need a warrant.

[00:17:05] Speaker 03:
Here, all that officer sides testified, he said, once I gave her the form, she became evasive.

[00:17:15] Speaker 03:
She changed the subject.

[00:17:16] Speaker 03:
She asked, why do you want to look in the cop?

[00:17:19] Speaker 03:
Then she started talking about wanting to have a ticket.

[00:17:22] Speaker 04:
But don't you think that could be construed, or the jury could understand that she didn't consent, as a comment on her declining the search?

[00:17:33] Speaker 03:
This would be the government's position.

[00:17:35] Speaker 03:
Because of the plain error standard of view, this court has a well-settled principle that an error that hinges on a factual dispute cannot be plain or obvious as a matter of law.

[00:17:45] Speaker 03:
What the government would submit is that reasonable minds can differ if it's ambiguous

[00:17:49] Speaker 03:
You know, if I go into a restaurant and they know I like a burger and they say, you want a burger?

[00:17:53] Speaker 03:
And I say, hey, do you have fish as a special?

[00:17:55] Speaker 03:
That doesn't mean I don't want the hamburger.

[00:17:57] Speaker 03:
I'm just asking about something different.

[00:17:59] Speaker 03:
He or she kind of shifts focus.

[00:18:02] Speaker 03:
And then on the reply brief, because in the opening brief, it was only about officer side's testimony.

[00:18:07] Speaker 03:
When we pointed that out, then the defense in the reply brief said, oh, well, then let's look to the actual recording.

[00:18:14] Speaker 03:
And the parts that the defense

[00:18:19] Speaker 03:
Well, you know, if this were true, I wouldn't have much credibility here, but you know, what she says in pure Spanish, I don't need you to be checking my car.

[00:18:27] Speaker 03:
He immediately says, I don't understand.

[00:18:29] Speaker 03:
Then a few seconds later, he says, well, you don't have anything, so no, no problem.

[00:18:34] Speaker 03:
And she just says, no, we would submit that's ambiguous.

[00:18:38] Speaker 03:
All we're saying is that this is not as clear cut as Prescott and Gasho.

[00:18:43] Speaker 03:
And under the standard of view that the court is reviewing,

[00:18:45] Speaker 03:
Again, to your point, it's possible that they might have thought that she wasn't consenting.

[00:18:50] Speaker 03:
But if it's not clear, if it's not so plain or obvious that an experienced district judge like Judge Robinson would be able to see it, nobody raised any objection about this.

[00:19:01] Speaker 03:
The government previewed it in an opening statement.

[00:19:03] Speaker 03:
It wasn't something that just came up as a collateral reference.

[00:19:06] Speaker 03:
We would just submit it's not plain error.

[00:19:08] Speaker 03:
Aside from those first two prongs of plain error review, the court has already gone over with defense, and we would submit that there is no reasonable likelihood of a different outcome.

[00:19:19] Speaker 03:
The evidence in this case, yes, it was circumstantial, but it was overwhelming.

[00:19:24] Speaker 03:
We've already talked about the fact that Polanco, the man with whom she met, he sold nine pounds of methamphetamine just nine days earlier.

[00:19:32] Speaker 03:
This wasn't just like, hey, let's meet up and have coffee.

[00:19:35] Speaker 03:
This was a two-minute trunk-to-trunk transfer of bags in a public parking lot.

[00:19:43] Speaker 03:
There's no formalities.

[00:19:44] Speaker 03:
There's no pleasantries.

[00:19:46] Speaker 03:
And then they immediately leave.

[00:19:49] Speaker 03:
And you know, I know that the defense, their position at trial, they blame Polanco for having somehow duped the defendant.

[00:19:55] Speaker 03:
They want to stand on the fact that, well, they're black plastic bags.

[00:19:58] Speaker 03:
You can't see what's in them.

[00:20:00] Speaker 03:
But when the jury looked at that video, I mean, she's literally moving bags out of the way.

[00:20:05] Speaker 03:
I don't think this is the kind of

[00:20:06] Speaker 03:
evidence or argument that should give this court pause on plain error view, because you have to show a substantial prejudice.

[00:20:14] Speaker 03:
And then even during the stop, the defendant, extreme nervousness, shaking hands, pulsing carotid, inconsistent answers on where she's going, inability to say where her destination was, even though there's a cell phone with a GPS and plain view.

[00:20:29] Speaker 03:
And on top of it, I know we talked under 404B a few minutes ago about that.

[00:20:35] Speaker 03:
January 2021 text message.

[00:20:38] Speaker 03:
There were the other text messages that are not being challenged on appeal.

[00:20:42] Speaker 03:
And those are the ones with Luis's dad.

[00:20:44] Speaker 03:
Those were two days before the day of where

[00:20:48] Speaker 03:
Ms.

[00:20:48] Speaker 03:
Nava is literally saying, hey, do you have work?

[00:20:50] Speaker 03:
Do you have work?

[00:20:51] Speaker 03:
And then the morning of the arrest, Luis's dad says, call me.

[00:20:54] Speaker 03:
And then at 2 p.m., when she has the meeting, she's on her way to L.A.

[00:20:59] Speaker 03:
She's arrested at 3 p.m.

[00:21:01] Speaker 03:
Right after that, four missed calls from Luis's dad, call me, Carla, text.

[00:21:06] Speaker 03:
The other woman, Tony, sent her the map.

[00:21:08] Speaker 03:
On this record, Your Honor, the government would submit that that evidence was overwhelming.

[00:21:12] Speaker 04:
Who were Luis and the other woman?

[00:21:14] Speaker 04:
Were they ever identified?

[00:21:15] Speaker 04:
Was there any information about the individuals with whom she was texting?

[00:21:19] Speaker 03:
Not at trial.

[00:21:20] Speaker 03:
I believe post trial.

[00:21:22] Speaker 03:
And, you know, this stuff was under seal, but this also brings me to my final point.

[00:21:27] Speaker 03:
I was just talking about the third prong of Plain Air Review, even under the fourth prong.

[00:21:31] Speaker 03:
This defendant, when all is said and done, at the end of the day, after conviction, came clean and admitted knowledge.

[00:21:38] Speaker 03:
This court has held that for purposes of the fourth prong of Plain Air Review, this court can look outside the record.

[00:21:44] Speaker 03:
The last two documents that I attached to the government's supplemental excerpts of record show that in response for those admissions, the government gave

[00:21:52] Speaker 03:
a safety valve recommendation, which severely brought down the sentence.

[00:21:57] Speaker 03:
And so the government's point with that is simply there not only, you know, and I think during those submissions, Your Honor, I'm sorry, I think that was when there was more discussion of Louise's death.

[00:22:07] Speaker 03:
But because that's not in the record, you know, I didn't put that into the supplemental excerpts, but I can stand here and tell you that she did come clean, and we know that those text messages, even if she had never identified who those people were, you know,

[00:22:23] Speaker 03:
the timeline.

[00:22:23] Speaker 03:
There was a lot of talk about timeline and corresponding messages with real world events when Louisa's dad is suddenly trying to call her.

[00:22:31] Speaker 02:
Council, why are you telling us about what's not on the record?

[00:22:33] Speaker 03:
Well, because there was a question about whether Luis's dad was ever identified.

[00:22:38] Speaker 03:
So that's all I'm saying about that, Your Honor.

[00:22:41] Speaker 03:
But again, the point remains that the evidence would appear to be overwhelming.

[00:22:44] Speaker 03:
And for plain error review, there would be no grounds for reversal.

[00:22:48] Speaker 03:
So unless the court has any further questions, I would yield the remainder of my time to the defense.

[00:22:56] Speaker 04:
Thank you.

[00:23:00] Speaker ?:
OK.

[00:23:05] Speaker 02:
He's got another six minutes and 20 seconds because the time has been yielded.

[00:23:10] Speaker 02:
I'm not going to.

[00:23:12] Speaker 01:
If only that were how it worked.

[00:23:15] Speaker 01:
I want to just address two points.

[00:23:17] Speaker 01:
First, very quickly.

[00:23:20] Speaker 01:
The government continues to try to say that this was not a refusal to consent.

[00:23:24] Speaker 01:
The government itself repeatedly characterized it as a refusal to consent in the district court.

[00:23:29] Speaker 01:
And in their opening statement, they made it explicit.

[00:23:31] Speaker 01:
They said that, but when he asked the defendant to search her car for drugs, she asked him for a ticket and just to let her go.

[00:23:38] Speaker 01:
They explicitly connected that response that they repeatedly relied on throughout the trial

[00:23:43] Speaker 01:
to the request to search.

[00:23:44] Speaker 01:
They knew that was a refusal.

[00:23:46] Speaker 01:
That was everybody's understanding.

[00:23:48] Speaker 01:
So I don't think there's any plausible argument that it was not a refusal.

[00:23:53] Speaker 01:
I did want to just tag on to the last thing that was referenced in terms of, that was the point I was trying to make earlier about the absence of information.

[00:24:01] Speaker 01:
The government's relying on, has these ambiguous text messages from Luis's dad and other things.

[00:24:07] Speaker 01:
And I think it's easy for us at this point to look at it and be like, okay, we're looking at all of this evidence.

[00:24:12] Speaker 01:
But from the jury's standpoint, they had this massive investigation.

[00:24:16] Speaker 01:
They had all of these tools.

[00:24:17] Speaker 01:
They had the aerial surveillance, the GPS trackers.

[00:24:19] Speaker 01:
But they were not able to provide any information really about Polanco in this trial or about the other, Luis's dad, or about where she was going.

[00:24:29] Speaker 01:
They had the phone and the GPS information.

[00:24:31] Speaker 01:
So I think that was additional information that in the absence of this error could have been argued to the jury to say that there was not sufficient evidence to prove beyond a reasonable doubt that she knew that the drugs were in the car.

[00:24:43] Speaker 04:
Thank you.

[00:24:43] Speaker 04:
Thank you.

[00:24:45] Speaker 04:
Council, thank you both for your arguments this morning.

[00:24:48] Speaker 04:
They were very helpful and this case is submitted.