[00:00:12] Speaker 00:
Good morning, Your Honors.

[00:00:13] Speaker 00:
May it please the court?

[00:00:14] Speaker 00:
My name is Nancy Schwartz, and I represent the appellant, Ms.

[00:00:18] Speaker 00:
Dawn Guevara.

[00:00:19] Speaker 00:
Ms.

[00:00:19] Speaker 00:
Guevara was convicted of conspiracy to distribute methamphetamine after a two-day jury trial.

[00:00:26] Speaker 00:
Ms.

[00:00:26] Speaker 00:
Guevara was wrongfully convicted based upon preserved evidentiary and constitutional error that occurred during her trial.

[00:00:34] Speaker 00:
I raised two main issues on appeal.

[00:00:35] Speaker 00:
The first had to do with the admission of testimony from a DEA special agent

[00:00:41] Speaker 00:
who testified to both border crossing data as well as historical postal records.

[00:00:47] Speaker 00:
The second issue that I raised had to do with the admission of implicit statements from a non-testifying postal worker, which I say were admitted in violation of Ms.

[00:00:56] Speaker 00:
Guevara's right to constitutional, right to confrontation.

[00:00:59] Speaker 02:
What was the testimony of the DEA agent with respect to postal records?

[00:01:05] Speaker 00:
When the DEA agent talked about the postal records, he was asked specifically to correlate, he said he correlated, there was a strong correlation of the border crossings of Don... Okay, so he testified that based on the testimony of somebody else, he could correlate the border crossings with the postal records.

[00:01:26] Speaker 02:
He didn't himself testify about the postal records, right?

[00:01:30] Speaker 00:
He did testify that, while he didn't specifically testify to the historical postal records, he actually testified before

[00:01:38] Speaker 02:
Inspector tubs did and so it was implicit in what he was saying that it will be established by somebody else's Testimony what the postal records show and right and I can that correlate to okay?

[00:01:49] Speaker 01:
That's what I just didn't see him testifying about the postal records so I didn't either Thank you for that clarification so don't we have to understand what what postal inspector tubs did or?

[00:01:59] Speaker 01:
In order to understand whether there's a problem with this part of zydex testimony correct, okay?

[00:02:05] Speaker 01:
So what was wrong with what postal inspector tubs testified?

[00:02:07] Speaker 00:
Well, what Postal Inspector Tubbs did is he, in his discovery, he presented an Excel spreadsheet that showed the historical posted data of this particular residence.

[00:02:19] Speaker 01:
Can I stop you there to clarify?

[00:02:20] Speaker 01:
Because I couldn't figure this out.

[00:02:22] Speaker 01:
I have it in the record, and it's marked as an exhibit.

[00:02:25] Speaker 01:
Was it admitted, the Excel spreadsheet?

[00:02:27] Speaker 00:
The Excel spreadsheet was not admitted as an exhibit.

[00:02:29] Speaker 00:
I attached it to my sentencing memorandum.

[00:02:32] Speaker 01:
So we've got that.

[00:02:32] Speaker 01:
And that's the one.

[00:02:33] Speaker 01:
I don't know if there's more than one Excel spreadsheet.

[00:02:35] Speaker 01:
I just have the one.

[00:02:36] Speaker 01:
So it doesn't have the time column on it?

[00:02:39] Speaker 01:
Correct.

[00:02:40] Speaker 01:
Okay, so that was not admitted.

[00:02:42] Speaker 01:
So take it away.

[00:02:44] Speaker 01:
Continue.

[00:02:45] Speaker 01:
I just needed that.

[00:02:46] Speaker 01:
OK.

[00:02:46] Speaker 00:
Well, and backing up, what happened is I filed a pretrial motion.

[00:02:50] Speaker 00:
And so the judge ruled on all these issues at trial.

[00:02:54] Speaker 00:
And what the government did was say, well, I'm not going to admit these exhibits.

[00:02:57] Speaker 00:
I'll just go ahead and have my officer testify to the contents.

[00:03:00] Speaker 01:
Right.

[00:03:01] Speaker 01:
I appreciate that.

[00:03:02] Speaker 01:
I thought that was true of both all of your arguments.

[00:03:05] Speaker 01:
But it's a little unclear.

[00:03:06] Speaker 01:
You'd be surprised, doing what we do for a living, how tough it is sometimes to recreate the history.

[00:03:11] Speaker 01:
Sure.

[00:03:12] Speaker 01:
Back to Postal Inspector Tubbs.

[00:03:14] Speaker 01:
He was on the stand.

[00:03:15] Speaker 01:
He was asked about these historic postal records.

[00:03:17] Speaker 01:
And I think he established that the post office keeps this tracking data, if I can just sort of summarize this.

[00:03:23] Speaker 01:
And then he said a couple of times, this Excel spreadsheet comes to me.

[00:03:27] Speaker 01:
This information comes to me on an Excel spreadsheet.

[00:03:29] Speaker 01:
So I couldn't figure out whether he compiled it or just hit a button to print the Excel spreadsheet.

[00:03:35] Speaker 01:
And here's why.

[00:03:36] Speaker 01:
Here's the confusion, maybe for both of you.

[00:03:38] Speaker 01:
The Excel spreadsheet that we have in the record, which I now understand was not admitted, doesn't have the time entries on it.

[00:03:45] Speaker 01:
But his testimony makes pretty clear he had to go to another database and get the time entries and write them down where.

[00:03:50] Speaker 01:
Where did those get recorded?

[00:03:54] Speaker 01:
He said that he recorded those in his report.

[00:03:57] Speaker 01:
Only in his report?

[00:03:58] Speaker 01:
Only in his report.

[00:03:59] Speaker 01:
OK, I'm beginning to see your... OK, go ahead.

[00:04:01] Speaker 02:
I'm still interested in this, because just factually.

[00:04:06] Speaker 02:
Put aside the arguments on it for a second.

[00:04:10] Speaker 02:
Judge, Inspector Tubbs says we pulled something.

[00:04:18] Speaker 02:
We pulled data from post office records.

[00:04:21] Speaker 02:
Nobody's contesting in this case that the post office records are business records.

[00:04:26] Speaker 02:
In other words, you're saying they should have actually introduced the business records rather than his testimony.

[00:04:32] Speaker 02:
But if he looked at the business records and derived information from them, why can't he testify about that?

[00:04:41] Speaker 00:
What I argued before the trial court was that then that would be something that was observed by the officer and wouldn't fall under one of the exceptions.

[00:04:50] Speaker 02:
If you asked a police officer what's in the Declaration of Independence, and he went to Philly and read the Declaration of Independence and testified to it, would there be any problem with that?

[00:05:06] Speaker 01:
How about a different hypothetical?

[00:05:07] Speaker 01:
How about a police officer that we see more commonly?

[00:05:10] Speaker 01:
A police officer, if you don't mind, Terry.

[00:05:11] Speaker 01:
No, no.

[00:05:12] Speaker 01:
A police officer gets on the stand and has a report, right?

[00:05:15] Speaker 01:
And that report's not going to be admitted.

[00:05:17] Speaker 01:
But it's not uncommon for the police officer to have the report.

[00:05:19] Speaker 01:
Or maybe you have to refer to it to refresh a recollection about a particular event or incident.

[00:05:24] Speaker 01:
But I think what we had here was a postal inspector.

[00:05:27] Speaker 01:
He's testifying.

[00:05:28] Speaker 01:
He's got his report, which I now understand was not admitted.

[00:05:31] Speaker 01:
But I think there were 22 packages delivered

[00:05:36] Speaker 01:
the niece's address.

[00:05:38] Speaker 00:
Correct.

[00:05:38] Speaker 01:
And he had to retrieve from somewhere else, from another database, 22 time entries, if I'm understanding correctly, and apparently he only wrote those in his report.

[00:05:47] Speaker 01:
So there's an objection in the record where he refers to his report, and it sounded like he was referring to it.

[00:05:54] Speaker 01:
Again, we're not in the courtroom, so it's hard to recreate.

[00:05:57] Speaker 01:
I think the objection was that he was reading from his report rather than testifying from memory or, you know, this is very detailed information about these 22 time entries, four of which wind up being important at trial.

[00:06:08] Speaker 01:
Is that the problem that he read, was reading too closely from his report?

[00:06:13] Speaker 00:
Well, and as to the time, he only put the time of those four packages that then ended up being videos.

[00:06:20] Speaker 01:
I understand that.

[00:06:21] Speaker 01:
We understand that.

[00:06:22] Speaker 01:
That's why reference is 22.

[00:06:24] Speaker 01:
but it would be a lot to go from memory.

[00:06:26] Speaker 00:
Correct.

[00:06:26] Speaker 01:
So he's got apparently, I don't know if he's got 22 or more in his report, but he winds up testifying as to four, and the objection in the transcript, objection, Your Honor, he's reading from his report.

[00:06:35] Speaker 01:
And I'm trying to figure out if I'm correctly understanding what happened in the courtroom.

[00:06:38] Speaker 01:
Please feel free, both of you, when it's your turn, to correct me if I misunderstand what happened.

[00:06:43] Speaker 01:
Because I think Judge Hurwitz and I are both grappling with just the facts at this point.

[00:06:47] Speaker 01:
Yes.

[00:06:49] Speaker 01:
What happened?

[00:06:53] Speaker 02:
What I recall is that he was reading from his report as far as the information that was in that aside for a second because as Judge Kristen says sometimes people have to refresh their recollection or the report wasn't introduced as I understand it so I'm trying to figure out whether or not that's right right the report was not introduced either no

[00:07:15] Speaker 02:
Okay, so we just pose this.

[00:07:18] Speaker 02:
I don't want to pose this as hypothetical, but I just want to pose two possibilities.

[00:07:22] Speaker 02:
One is the inspector said, I checked the postal records, I checked the business records, and this is what I learned.

[00:07:30] Speaker 02:
And I put it in my report, no, I'm telling you about this.

[00:07:34] Speaker 02:
Or it's possible that he said, I asked somebody else to tell me what happened.

[00:07:41] Speaker 02:
He says, we here, so that would seem to include him.

[00:07:45] Speaker 02:
So I'm trying to figure out whether the record establishes what he did to get this information.

[00:07:51] Speaker 02:
Cause from my perspective, he doesn't, you don't have to introduce the public record as long as somebody looks at a public record and says, that's what it says.

[00:08:00] Speaker 02:
So can you, can you help me with that?

[00:08:02] Speaker 00:
He didn't say how he got that record.

[00:08:05] Speaker 00:
He said that he retrieved it.

[00:08:07] Speaker 00:
And it came to him.

[00:08:09] Speaker 00:
in an Excel spreadsheet is what he specifically said.

[00:08:11] Speaker 01:
To be clear, for our record here, you're now talking about the historic postal records, not the text record.

[00:08:16] Speaker 01:
Correct.

[00:08:17] Speaker 01:
OK.

[00:08:17] Speaker 01:
This is true of the historic postal records.

[00:08:20] Speaker 02:
And again, my question is, did he look at, did he actually observe the historical postal records, or did he just say to somebody, here's how I know we do this.

[00:08:30] Speaker 02:
You do this, and you generate a spreadsheet or something like that.

[00:08:34] Speaker 00:
You know, I'm not positive which way he went with that.

[00:08:36] Speaker 02:
Neither am I reading the record.

[00:08:37] Speaker 02:
That's why I ask you.

[00:08:38] Speaker 00:
my understanding is that he said he testified that it comes to me in an excel spreadsheet and so someone else was generating that information and sending it to him.

[00:08:47] Speaker 02:
But he does say we pulled the records.

[00:08:50] Speaker 02:
Those are the exact language he said.

[00:08:53] Speaker 02:
He said we pulled the records and then something comes to me in an Excel set.

[00:08:58] Speaker 02:
So I'm trying to figure out what records he pulled.

[00:09:01] Speaker 00:
Well and I wasn't as concerned about the

[00:09:03] Speaker 01:
Historical postal records as I was them being in conjunction with the text records if we skip step one for a minute Let's say that let's say the historic postal records that were printed out that that excel spreadsheet as printed as we have it in the record Let's say for a minute that that's a public record, okay, okay?

[00:09:19] Speaker 01:
Now, if you go to step two, because that Excel spreadsheet does not have the time stamp.

[00:09:25] Speaker 01:
And the time stamp says that's what's critical because that's what ties everything to the lobby, post office lobby videos.

[00:09:31] Speaker 01:
Okay.

[00:09:31] Speaker 01:
So he's very clearly testifies.

[00:09:33] Speaker 01:
He has to go to another database to get the time entries.

[00:09:37] Speaker 01:
And I'm assuming he did that himself.

[00:09:38] Speaker 01:
I think that the transcript says that.

[00:09:42] Speaker 01:
And you've explained then he writes those down, but not on the Excel spreadsheet.

[00:09:45] Speaker 01:
He wrote those down in his report?

[00:09:47] Speaker 01:
Correct.

[00:09:47] Speaker 01:
As to the four dates.

[00:09:50] Speaker 01:
OK.

[00:09:50] Speaker 01:
And you had his report?

[00:09:51] Speaker 01:
I had his report.

[00:09:52] Speaker 01:
It wasn't introduced?

[00:09:53] Speaker 01:
It wasn't introduced.

[00:09:54] Speaker 01:
OK.

[00:09:55] Speaker 01:
And so your objection about this next bit of information is, what's your evidentiary objection as to this?

[00:10:04] Speaker 00:
Well, that in combination that he didn't provide the proper foundation for any of that.

[00:10:10] Speaker 00:
Prior to trial, the government made an offer of proof, basically.

[00:10:14] Speaker 00:
But then when it came time to testify at trial, the court had already ruled that this was coming in.

[00:10:20] Speaker 00:
And so based on that, the government then didn't offer a proper foundation for any of it.

[00:10:26] Speaker 01:
Right.

[00:10:26] Speaker 01:
So was your objection at trial was hearsay and foundation, or hearsay and authentication?

[00:10:31] Speaker 01:
Or what was your objection at trial?

[00:10:33] Speaker 00:
Well, and that got very complicated.

[00:10:34] Speaker 00:
Obviously, it was hearsay authentication.

[00:10:38] Speaker 00:
Best evidence came out as far as the text records.

[00:10:41] Speaker 01:
So I'm not talking about text records yet, because I'm trying really hard to keep these straight.

[00:10:45] Speaker 01:
So far, I'm just still at the historic postal records.

[00:10:48] Speaker 01:
What was your projection to those?

[00:10:50] Speaker 00:
that it hadn't been properly authenticated.

[00:10:53] Speaker 00:
They hadn't provided me the information prior to court as far as any of that timing.

[00:10:58] Speaker 00:
I wasn't able to go to the database and look at it myself.

[00:11:01] Speaker 01:
I think it's a hearsay objection in the transcript, isn't it?

[00:11:03] Speaker 00:
Correct.

[00:11:05] Speaker 01:
Okay.

[00:11:05] Speaker 01:
Is there more that you want to say about the historic postal records before we go on to the text records?

[00:11:09] Speaker 01:
No.

[00:11:10] Speaker 01:
Okay.

[00:11:10] Speaker 01:
What about the text records?

[00:11:12] Speaker 00:
The text records showed the border crossing data.

[00:11:14] Speaker 00:
And again, this was something that DEA Special Agent Zydak,

[00:11:19] Speaker 00:
testified that he retrieved, but then when he was questioned about that at trial, he then admitted that no, he didn't retrieve it.

[00:11:26] Speaker 00:
He actually looked over the shoulder of a Border Patrol agent who was assigned to the office, and that was the person that retrieved.

[00:11:32] Speaker 00:
That wasn't the representation made previously as far as what was available to the DEA agent.

[00:11:38] Speaker 00:
And so the judge

[00:11:40] Speaker 00:
you know, based her decision on admitting those records based on the fact that DEA agent had access to that when, in fact, he didn't.

[00:11:46] Speaker 00:
That was a border patrol agent that did that.

[00:11:48] Speaker 00:
And so those should not have been admitted.

[00:11:51] Speaker 01:
So what's your objection to that, to the introduction of the text records?

[00:11:54] Speaker 00:
Well, I had objected.

[00:11:56] Speaker 00:
This was confusing because prior to trial, I didn't know that what they were going to do was say, well, we're just going to have the officer testified to the records instead of introducing this as an exhibit.

[00:12:06] Speaker 01:
Can I stop you there?

[00:12:07] Speaker 01:
Because again, I'm piecing things together.

[00:12:09] Speaker 01:
It seems that these were marked as an exhibit.

[00:12:13] Speaker 01:
Correct.

[00:12:13] Speaker 01:
At trial, you objected because they didn't have the right witness.

[00:12:17] Speaker 01:
And then I think I'm paraphrasing.

[00:12:19] Speaker 01:
And then I think the government said, OK, we're going to get these in through a different witness.

[00:12:24] Speaker 00:
No, they were always going to be bringing those in through the DEA agent.

[00:12:28] Speaker 01:
I see.

[00:12:29] Speaker 01:
So when you objected before trial, the government responded with what?

[00:12:32] Speaker 01:
That they were going to bring it in through just the testimony and not the exhibit?

[00:12:35] Speaker 01:
Correct.

[00:12:36] Speaker 01:
I see.

[00:12:36] Speaker 00:
In circumvention of the best evidence rule.

[00:12:39] Speaker 01:
Got it.

[00:12:41] Speaker 00:
OK.

[00:12:43] Speaker 00:
I need to reserve the rest of my argument.

[00:12:45] Speaker 01:
We'll give you a little more time.

[00:12:46] Speaker 01:
We took an awful lot of it.

[00:12:47] Speaker 01:
We're just trying to get the facts out.

[00:12:50] Speaker 01:
Judge Herbert, do you have any more questions or Judge Fletcher at this point?

[00:12:53] Speaker 03:
I'm OK for now.

[00:12:54] Speaker 01:
OK.

[00:12:55] Speaker 01:
We'll be talking again with you shortly.

[00:12:57] Speaker 01:
All right.

[00:12:57] Speaker 01:
Thank you.

[00:12:57] Speaker 01:
Let's hear from the government.

[00:13:16] Speaker 01:
Morning.

[00:13:17] Speaker 03:
Morning.

[00:13:18] Speaker 03:
May it please the court, Tim Tatarka for the District of Montana on behalf of the United States.

[00:13:24] Speaker 03:
So I'll go directly to some of these factual questions.

[00:13:30] Speaker 03:
So the place to look with respect to the postal data is excerpts of the record, page 352 and 353.

[00:13:37] Speaker 03:
The agent testified that he

[00:13:45] Speaker 03:
pulled the historic, or.

[00:13:47] Speaker 02:
He says we pulled, we pulled.

[00:13:48] Speaker 03:
Yep, yep.

[00:13:50] Speaker 03:
He did say, he said we pulled the historic mailing records related to a specific address, and that comes to me on an Excel spreadsheet.

[00:14:00] Speaker 03:
The best evidence rule is clear that exports, printouts or exports from a database are

[00:14:10] Speaker 03:
to constitute originals.

[00:14:12] Speaker 01:
So just so I can be really clear, this is because an officer, I'll say in the field, had contacted the postal inspector and wanted a record of all the packages delivered to that address, the niece's address, right?

[00:14:23] Speaker 01:
That's the starting point?

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

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

[00:14:26] Speaker 03:
And so that's what they pulled.

[00:14:28] Speaker 02:
And there's no doubt in this case that the public records will show for a time period all the packages delivered to a specific address.

[00:14:37] Speaker 02:
And I don't think your friend contests that.

[00:14:40] Speaker 02:
The question is whether this witness, what did this witness do?

[00:14:46] Speaker 02:
I suppose is the question.

[00:14:47] Speaker 03:
Yeah.

[00:14:48] Speaker 03:
So I think he says we there.

[00:14:54] Speaker 03:
But at least in the end, of course, this court reviews for abuse of discretion, admissions of evidence at this point, I think the logical

[00:15:05] Speaker 03:
Reading of that was was that the that He pulled those records on an excel spreadsheet except that he says a couple times this comes to me on an excel spreadsheet hence

[00:15:21] Speaker 01:
You know, coupling that with WePoll, it's just difficult to know.

[00:15:24] Speaker 01:
And the document itself isn't, I appreciate that your briefing makes clear you're not relying on anything being self-authenticating, but it's not a printout that sort of has a title and explains to us, announces itself to us.

[00:15:35] Speaker 01:
Correct.

[00:15:35] Speaker 01:
So it's a little bit wobbly right there.

[00:15:38] Speaker 03:
Though I do think it is clear, so again, as you pointed out, this is actually included in excerpts of the record, page 471 and 472, that it has the full

[00:15:50] Speaker 03:
I think it is clear that it is an export as opposed to a filled in spreadsheet, given the kind of information that's included in there.

[00:16:02] Speaker 02:
So what you're saying is, and it wasn't admitted into evidence.

[00:16:05] Speaker 03:
It was not.

[00:16:06] Speaker 02:
But that it feels falls within the public records exception for somebody to pull a public record.

[00:16:17] Speaker 02:
And then to use a program to synthesize that record into a spreadsheet that aids his testimony?

[00:16:25] Speaker 03:
Correct.

[00:16:27] Speaker 03:
And then he does testify very clearly at excerpts of the record, page 353, that he went and correlated those with the tracking numbers

[00:16:44] Speaker 03:
to find the timestamps for those particular packages.

[00:16:47] Speaker 03:
And that's what he used to obtain the videos.

[00:16:54] Speaker 01:
So where did he write down that?

[00:16:55] Speaker 01:
He says he has to look at a second database to get the times.

[00:17:00] Speaker 01:
And on page 472, which is second page of the spreadsheet, there's his handwritten numbers.

[00:17:05] Speaker 01:
But I don't think they're times.

[00:17:06] Speaker 03:
No, I think it's just identified 1 through 22.

[00:17:09] Speaker 01:
Okay, right.

[00:17:10] Speaker 01:
That's what I thought too.

[00:17:11] Speaker 01:
So the times are written only in his report according to opposing counsel?

[00:17:14] Speaker 03:
That's correct.

[00:17:15] Speaker 03:
Only in his report, not in the printed spreadsheet.

[00:17:20] Speaker 01:
Okay, so thank you.

[00:17:21] Speaker 01:
So do I understand correctly then the objection in the courtroom was that he was reading, opposing counsel thought, reading from his report as opposed to testifying?

[00:17:31] Speaker 01:
Well, the... Or do I misunderstand the nature of what was happening there?

[00:17:36] Speaker 03:
It isn't, the objection at this point, the defense just asked for a continuing objection because defense had already made the authentication objections earlier.

[00:17:52] Speaker 03:
So it's not clear precisely what was being, the contours of that objection.

[00:18:01] Speaker 01:
You said this was, you were offering this as a public record, right?

[00:18:06] Speaker 03:
This is a public record.

[00:18:09] Speaker 03:
I think with respect to the timestamps, it doesn't even need to be a public record because I think that is not hearsay because it is a machine statement.

[00:18:18] Speaker 01:
Okay, so hold on.

[00:18:22] Speaker 01:
This wasn't admitted.

[00:18:23] Speaker 01:
You're admitting the testimony, right?

[00:18:26] Speaker 01:
Correct.

[00:18:26] Speaker 01:
And I thought that's why the objection was that he was reading from his report.

[00:18:29] Speaker 01:
And I'm just trying to understand that.

[00:18:33] Speaker 03:
Objection was so pre-trial the court did the analysis about the government being able to bring in these summary records through rule 1006 Yeah, okay, but you didn't offer it is this summary record as my understanding is you're offering oral an oral summary So yes, and then summary and summary testimony under 1006 under this court's precedent can be either oral or written

[00:19:04] Speaker 03:
But what's important with respect to the time stamps, again, as I say, for one thing, they don't fall within a hearsay exception anyway because they are machine generated.

[00:19:20] Speaker 03:
But also, they were only used, the only purpose.

[00:19:24] Speaker 01:
I'm not sure they were machine-generated.

[00:19:25] Speaker 01:
That's part of the problem that she's got.

[00:19:27] Speaker 01:
He had to look elsewhere and pull them over and write them down.

[00:19:31] Speaker 01:
So that's the room for human error.

[00:19:33] Speaker 01:
I think that's the basis of her objection, sir.

[00:19:35] Speaker 01:
It's not like somebody pushed a button and that printed out.

[00:19:39] Speaker 03:
Correct.

[00:19:39] Speaker 03:
OK.

[00:19:40] Speaker 03:
I mean, they are not machine-generated.

[00:19:42] Speaker 03:
The originals were machine-generated.

[00:19:45] Speaker 01:
I appreciate that.

[00:19:45] Speaker 03:
So the originals would not be.

[00:19:47] Speaker 01:
And part of her objection is that the originals were never produced or made available to her.

[00:19:52] Speaker 01:
I'm not trying to be pedantic.

[00:19:53] Speaker 03:
I am trying to understand.

[00:19:55] Speaker 03:
No, that's absolutely right.

[00:19:56] Speaker 03:
OK.

[00:19:57] Speaker 03:
And that is, I think that is her objection.

[00:20:02] Speaker 03:
What that fails to recognize is the contents of those records, for best evidence purposes, the contents of the timestamps were not admitted

[00:20:17] Speaker 03:
to prove their contents.

[00:20:19] Speaker 03:
It was an investigatory step to obtaining the videos.

[00:20:24] Speaker 03:
And of course, the videos are the best evidence of what the videos show.

[00:20:28] Speaker 01:
Did the government need any of the postal records to obtain this conviction?

[00:20:35] Speaker 01:
They had testimony of the niece, testimony of the confidential informant, testimony of a police officer

[00:20:44] Speaker 01:
right, who I think a total of seven controlled buys?

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

[00:20:48] Speaker 01:
OK, so I didn't want you to think I've lost sight of that, but I am having trouble with the government's responses about these evidential objections.

[00:20:54] Speaker 01:
Judge Hurwitz has a question?

[00:20:56] Speaker 02:
No, and I was going to add to that.

[00:20:57] Speaker 02:
And at least two videos that are not objected to showing the defendant in the post office at the time of alleged offenses.

[00:21:08] Speaker 03:
And those correlate to border crossings that are tied to Guaveras.

[00:21:14] Speaker 02:
Passport so yeah, I want to go back to this question that judge Krista was asking so we so let's assume for a moment that the agents testimony shouldn't have been Accepted for the truth of the matter which is that this is when packages were mailed etc.

[00:21:34] Speaker 02:
But it's just simply viewed as him saying that

[00:21:37] Speaker 02:
And then I went, this is what I did in order to determine what time period I should look for for the videos.

[00:21:46] Speaker 03:
That is absolutely correct.

[00:21:48] Speaker 03:
It is especially true with respect to the timestamps.

[00:21:53] Speaker 03:
If that information was included, that was included by error.

[00:21:57] Speaker 02:
Let me ask the question differently.

[00:21:59] Speaker 02:
Even if the evidence should not have been admitted for the truth of the matter,

[00:22:04] Speaker 02:
it could have been admitted to establish the steps that the agent took to get the videos.

[00:22:11] Speaker 02:
And under that circumstance, isn't any error harmless?

[00:22:15] Speaker 02:
Because it's really the videos that show that she was doing this that are the critical thing.

[00:22:21] Speaker 03:
That is absolutely correct.

[00:22:23] Speaker 03:
The videos themselves are the best evidence of what the videos show.

[00:22:30] Speaker 03:
And so the time stamps were merely

[00:22:34] Speaker 03:
a investigative step along that way, the question about whether or not, if none of the postal records were included, would be a closer case.

[00:22:49] Speaker 01:
But... You had the knee saying that she... And all of the texts are now not objected to.

[00:22:55] Speaker 01:
I mean, on appeal, we don't have that.

[00:22:57] Speaker 01:
So you have the niece, all the texts between the defendant and the niece, including how much to charge for the methamphetamine.

[00:23:04] Speaker 01:
Correct.

[00:23:04] Speaker 01:
We have identification of the defendant by, certainly by the niece.

[00:23:08] Speaker 01:
There's the confidential informant.

[00:23:10] Speaker 01:
There's the initial, and then the officer is at Martian.

[00:23:16] Speaker 03:
Conducted a total of seven controlled by yeah and recording it is over I'm not recording I don't mean to say that I think the evidence is overwhelming there my point is I don't think there I also don't think that there's any question that the postal records the the postal records come in in terms of that there was that the packages were mailed from San Ysidro to

[00:23:43] Speaker 01:
I have some problems with your evidence, even under the abuse of discretion standard, to be candid with you.

[00:23:47] Speaker 01:
And I don't know how we... We haven't talked about the text records yet, for example.

[00:23:51] Speaker 01:
How would that be permissible?

[00:23:53] Speaker 03:
So, the agent testified, this is an excerpt from the record 309, the agent testified, using resources we had, I checked the post... But, counsel, they have to be authenticated.

[00:24:09] Speaker 01:
And he doesn't work for Customs and Border Patrol or whatever it is.

[00:24:13] Speaker 01:
So it just seems to be really loose testimony right there.

[00:24:16] Speaker 01:
What am I missing?

[00:24:17] Speaker 03:
Well, and I think, and I would note that Judge Hurwitz mentioned earlier, these are not business records that would need to be authenticated by a custodian.

[00:24:30] Speaker 03:
These are public records.

[00:24:32] Speaker 03:
And 901B7 is clear that public records just have to be

[00:24:40] Speaker 03:
Testified to that they are stored in the place where these public records are kept to who offered that testimony agent Martin Excuse me agents white swidec And that is an excerpt of record 309 for that agency right who does not work for that agency He does not work for border patrol, but he does have access to to the database and I would

[00:25:04] Speaker 03:
Recommend the court's attention on that point to excerpts the record.

[00:25:07] Speaker 01:
What was his access?

[00:25:08] Speaker 01:
Originally, I think he told the district court that he had access.

[00:25:12] Speaker 01:
I think upon cross-examination, it turns out he had somebody else from Border Patrol access them, and he looked over their shoulder or something?

[00:25:19] Speaker 03:
No, Your Honor.

[00:25:20] Speaker 03:
What he said was consistent.

[00:25:23] Speaker 03:
On page 309, he says, using resources that... I'll read it specifically.

[00:25:30] Speaker 01:
Oh, I've read the page about the resources.

[00:25:32] Speaker 03:
Is that what...

[00:25:33] Speaker 03:
And so he says, utilizing some of the resources that we had, I checked the border crossings.

[00:25:40] Speaker 03:
Then on the next page, and so that's, I think it is entirely consistent with that, he says, when asked about the source of the border crossing data, he says, I was assigned here in the Billings office, another one of the people that were assigned there was from Border Patrol having access to border crossing activity.

[00:26:01] Speaker 03:
I think that goes to the using resources we had part of that first sentence and doesn't contradict at all the fact that he said, I checked the border crossings.

[00:26:11] Speaker 01:
I understand your argument.

[00:26:12] Speaker 02:
Can you address the recording?

[00:26:17] Speaker 02:
And as I understand it, there were also telephone text messages exchanged that were introduced into evidence.

[00:26:25] Speaker 02:
How did you authenticate that they came from the defendant?

[00:26:30] Speaker 02:
How did you prove that they came from the defendant?

[00:26:32] Speaker 03:
Oh, well, the text messages that we got either came from the niece's phone, which was seized when she was arrested, or from the undercover agent.

[00:26:41] Speaker 02:
OK, and as to those, how was it established that those messages came?

[00:26:47] Speaker 02:
Did Denise say that they came from?

[00:26:49] Speaker 02:
OK, how about the recording?

[00:26:52] Speaker 03:
So the videos or the?

[00:26:55] Speaker 02:
The telephone recording.

[00:26:56] Speaker 03:
That was recorded by the agent.

[00:27:00] Speaker 02:
How do we know the person on the other end was the defendant?

[00:27:04] Speaker 03:
Well, we know it was from the phone that she was that was associated with her name

[00:27:12] Speaker 01:
It's the same number that was associated with her name in the nieces texts and she identifies herself as dawn on the call And then you said they're not objected to at trial Those were not objected to Denise's phone was seized at the time of her arrest she allowed them to search the phone that phone included I think text showing like baby pictures family, so it's very clear that this was aunt dawn I believe and the same phone number

[00:27:40] Speaker 01:
that the niece was using to communicate with her aunt was the one that the undercover agent used to communicate with the aunt.

[00:27:45] Speaker 01:
Is that right, the defendant?

[00:27:47] Speaker 03:
Correct.

[00:27:47] Speaker 03:
And in that conversation, she identifies herself as Dawn, and she refers to Chesmore as her niece.

[00:28:02] Speaker 01:
I think her email address has her name in it.

[00:28:04] Speaker 01:
I think her email address has her name.

[00:28:06] Speaker 03:
There's an iCloud account that was gone in 1980, which again correlates with that.

[00:28:13] Speaker 03:
And I would also point out that Collinsworth, the CI, was connected to Guevara not through the niece, but through her brother, who hooked him up.

[00:28:25] Speaker 03:
So this couldn't just be a conspiracy all created by Chesmore.

[00:28:29] Speaker 01:
We've taken you almost at the end of your time.

[00:28:31] Speaker 01:
Judge Hurwitz?

[00:28:32] Speaker 01:
Judge Fletcher?

[00:28:33] Speaker 01:
I don't think we have anything further, but thank you for your patience with our questions.

[00:28:36] Speaker 03:
No, thank you.

[00:28:47] Speaker 00:
I was not even able to get to the second issue that I had raised as far as the confrontation clause, which obviously is a stronger argument based on the standard of review.

[00:28:58] Speaker 01:
I have a question about that.

[00:28:59] Speaker 01:
We can do it quickly, and I get to say that we have more time if we need it, so you can relax.

[00:29:03] Speaker 01:
But on that, at this point in the process, by the time the postal inspector wanted to look at the videos, I think he was able to access two, not able to access two others for some technological reason.

[00:29:15] Speaker 01:
But he contacted another person to pull up those videos for him.

[00:29:19] Speaker 01:
And I'm summarizing, of course.

[00:29:20] Speaker 01:
But I think he was able to say, I need the videos for, and he gave him the date and time.

[00:29:27] Speaker 01:
And in this way, I think it seems to me that your case really differs from the confrontation clause argument that you try to analogize to from.

[00:29:36] Speaker 01:
Is it the Brooks case?

[00:29:38] Speaker 00:
Right, he also gave the tracking number.

[00:29:40] Speaker 01:
So how was there any room for us to treat the response as a testimonial statement in the same way that we did in Brooks?

[00:29:50] Speaker 00:
Because that was the implicit statement from the agent back, the person who got those videos back.

[00:29:56] Speaker 00:
It was the implicit statement back that here's the person.

[00:29:59] Speaker 00:
He wanted him to send him the suspect packages being mailed with a certain tracking number, certain time.

[00:30:05] Speaker 00:
to show the sender of the package.

[00:30:07] Speaker 00:
And so when he sent those back, he was implicitly saying, here she is.

[00:30:11] Speaker 00:
Here's the sender of those two packages.

[00:30:12] Speaker 01:
We have case law where a postal inspector, again, I'm going to summarize.

[00:30:16] Speaker 01:
But a postal inspector is following a suspect, and he calls somebody inside the post office and basically says, my guy just went in there.

[00:30:23] Speaker 01:
My suspect just went in there.

[00:30:24] Speaker 01:
I want to know, intercept that package, basically, that he's just mailed.

[00:30:28] Speaker 01:
But we don't know, as the reader of that case, how many guys just walked into the post office wearing a blue shirt.

[00:30:34] Speaker 01:
Right.

[00:30:35] Speaker 01:
So in that way, it seems to me there's a much wider margin for error and really an opportunity for fertile cross examination at that link.

[00:30:46] Speaker 01:
And it's a devastatingly important link because that package, of course, winds up having, I think, marijuana in it.

[00:30:53] Speaker 01:
In your case, I think that's what you're analogizing to, but the facts here are that the postal inspector called for assistance retrieving a very specific set of two videos by date and by time.

[00:31:05] Speaker 01:
So I don't see that there's room to argue that the response has the same testimonial characteristic.

[00:31:14] Speaker 01:
In other words, it's like asking a librarian to pick a particular book off the shelf.

[00:31:19] Speaker 00:
Right.

[00:31:19] Speaker 00:
The implicit statements that he was saying was that this was of the suspect packages when he sent those to them.

[00:31:26] Speaker 01:
No, it's a statement that this is what was happening in the lobby at that date and time.

[00:31:31] Speaker 00:
When he sent those packages to the postal inspector, he's saying this is the suspect packages with the tracking number that you told me to look up.

[00:31:38] Speaker 01:
Oh, forgive me.

[00:31:39] Speaker 01:
Are you talking about Brooks now or are you talking about our case?

[00:31:42] Speaker 00:
I'm talking about my case.

[00:31:43] Speaker 01:
OK, but in our case here that we have at bar, I think the direction was not, hey, go get a video of my suspect.

[00:31:50] Speaker 01:
It was a request for two very specific videos of the lobby on a particular date and time.

[00:31:56] Speaker 00:
Well, and what I'm going off of is just what the officer put in his report, which I also put in my trial brief that said, I want you to go get the suspect packages and to include the sender of those suspect packages.

[00:32:07] Speaker 02:
Was the report introduced into evidence?

[00:32:09] Speaker 00:
The report wasn't introduced into evidence, but certainly when he testified about the videos, that's what he said happened.

[00:32:15] Speaker 02:
Well, so I'm trying to figure out what... You're making a confrontation cause objection.

[00:32:20] Speaker 02:
So I'm trying to figure out what out of court... Who made it out of court statement here to which you object?

[00:32:26] Speaker 00:
It was the out-of-court coastal surveillance specialist that made the statement.

[00:32:30] Speaker 00:
He made two implicit statements.

[00:32:32] Speaker 02:
Well, there's no statement.

[00:32:33] Speaker 02:
What you're saying is that he implicitly adopted the statement made by somebody who you did have the opportunity to cross-examine.

[00:32:41] Speaker 00:
The two implicit statements that I said he said were that here are the videos of mailing of the suspect packages, which show who mailed those packages, and then also,

[00:32:50] Speaker 00:
He said the packages in those two videos, even though you can't see it, has the same tracking number as does... But you agree he didn't say any of those things?

[00:32:59] Speaker 00:
No, no.

[00:33:01] Speaker 02:
So what you're saying is that he was adopting a statement made by the witness who was in court.

[00:33:11] Speaker 02:
There's no statement at all by this person.

[00:33:13] Speaker 02:
that was introduced.

[00:33:15] Speaker 02:
You're saying that his response by sending the videos to the testifying witness was an implicit statement that they met the description that the testifying witness gave.

[00:33:30] Speaker 02:
I understand that now.

[00:33:33] Speaker 00:
And then the government specifically asked Inspector Tubbs, okay, and is that the package that was sent using the tracking number you received?

[00:33:39] Speaker 00:
Yes.

[00:33:40] Speaker 00:
Safe to assume the person mailing the package is the person who wants it mailed?

[00:33:44] Speaker 00:
Yes.

[00:33:45] Speaker 02:
And so he's actually... But those are not confrontation clause problems.

[00:33:49] Speaker 02:
Your confrontation clause argument is that the person who retrieved these videos somehow was making an implicit statement by retrieving them.

[00:33:58] Speaker 02:
Isn't that your argument?

[00:34:00] Speaker 00:
Yes, based on the fact that he was using information that wasn't in that video.

[00:34:05] Speaker 00:
There's only the time in that video.

[00:34:07] Speaker 00:
And even then, you know, you could cross-examine

[00:34:09] Speaker 00:
that person about that because the video displays a UTC code time stamp.

[00:34:14] Speaker 00:
It's not even the same time stamp that was in the officer's report.

[00:34:18] Speaker 00:
We've taken you well over your time.

[00:34:19] Speaker 01:
Thank you for your advocacy, both of you.

[00:34:21] Speaker 01:
Thank you.

[00:34:21] Speaker 01:
We're going to take this under advisement and stand in recess for the day.

[00:34:27] Speaker 01:
All rise.

[00:34:36] Speaker 00:
The court stands adjourned until tomorrow morning.

[00:34:39] Speaker 00:
Thank you.