[00:00:14] Speaker 00:
America versus Hernandez.

[00:00:36] Speaker 04:
Good morning.

[00:00:37] Speaker 04:
May it please the court, Kara Hartzler on behalf of Mr. Hernandez.

[00:00:58] Speaker 03:
basically agreed at one of the pre-trial hearings that all discovery had been provided several weeks before the trial.

[00:01:07] Speaker 04:
So that hearing was actually about I would say 10 months or even 10 or 11 months before trial and what happened is that the defense asked in their initial discovery request that there be all of this information turned over and one of the important things

[00:01:27] Speaker 04:
member of the group on 10-15.

[00:01:30] Speaker 04:
Then what happened is we went to this hearing.

[00:01:32] Speaker 01:
Does that really matter?

[00:01:34] Speaker 01:
I mean the evidence against your client is based on where he was caught and whether or not the agents were members of that group doesn't change the fundamental fact that your client was caught inside this country without authorization in a rural rugged area.

[00:02:08] Speaker 04:
doesn't have a case.

[00:02:09] Speaker 04:
Can your client credibly claim it wasn't him that was arrested?

[00:02:12] Speaker 01:
Well, I don't think, I think that's a little bit of a virtual shifting.

[00:02:15] Speaker 01:
That's why this whole argument seems to me to be theoretical, not real.

[00:02:19] Speaker 01:
What could possibly matter, I mean, suppose the agent had the enormous bias against people coming into the country unlawfully.

[00:02:30] Speaker 01:
Your client was caught inside the country unlawfully.

[00:02:39] Speaker 04:
the right to go after the credibility of any witness.

[00:02:42] Speaker 04:
How could it possibly be prejudicial?

[00:02:44] Speaker 00:
I think this is what you're not saying.

[00:02:46] Speaker 00:
But my understanding is this is one of those rare cases where the charge is 1325, granted I think 26.

[00:02:53] Speaker 00:
So the question is, it's a skinny defense, right?

[00:02:56] Speaker 00:
It's a very skinny defense to Judge Clifton's point.

[00:02:59] Speaker 00:
But I think your position is they had to prove, found a reasonable

[00:03:11] Speaker 00:
exactly okay so it's a very skinny defense because to judge Clifton's point he's found here and he doesn't have any papers and he this is it right that's the only thing he's got exactly one of the elements is that he had the government had to prove the way he entered and the agent didn't say I saw him go over offense not at a port of entry it was where he was caught that made the

[00:03:45] Speaker 01:
this group but I don't see how that changes the fact that the location where your client was apprehended is a place that doesn't

[00:03:59] Speaker 04:
So I think this then would shift to the Miranda issue a little bit, because the magistrate judge basically said, and I'm going to read from the judge's decision, I would rely on that statement, the post-arrest statement, as the body of the evidence against you.

[00:04:15] Speaker 04:
The which post-arrest statement?

[00:04:17] Speaker 04:
The post-arrest statement.

[00:04:18] Speaker 04:
In the field or in the station?

[00:04:20] Speaker 04:
Post-Miranda.

[00:04:30] Speaker 04:
whether this court would say, if I was looking at this evidence for the first time, I would say it's overwhelming.

[00:04:37] Speaker 04:
The question is, did it contribute to the verdict?

[00:05:25] Speaker 04:
Well, there was evidence, for instance, that there were roads, that there were houses, that there was a gun club a mile away.

[00:05:32] Speaker 04:
In other words, this was not as remote as some areas are.

[00:06:03] Speaker 04:
he walked through the mountain.

[00:06:05] Speaker 04:
Correct.

[00:06:05] Speaker 04:
And that was in the post-arrest statement, and that's what the Magistrate Judge relied on.

[00:06:09] Speaker 01:
So, again... So, why does the potential membership of the agent in this organization possibly affect the outcome of that analysis?

[00:06:19] Speaker 01:
Well, that would go to the discovery issue, if we switch back to the discovery issue.

[00:06:26] Speaker 01:
I couldn't figure out what possible relevance

[00:06:36] Speaker 01:
doesn't matter they don't have to give you the world and there are a whole other issues involving with the discovery in terms of the time it would take and so forth but just at any point I don't see how any of these requests could have made a difference to the outcome and if it didn't make a difference why we care well the government has

[00:07:23] Speaker 01:
It makes it a very difficult cell that he was smuggled.

[00:07:37] Speaker 04:
And I understand, Your Honor, that that may seem like overwhelming evidence to you.

[00:07:42] Speaker 04:
But the test is not, do you look at the evidence and see if it's overwhelming?

[00:07:47] Speaker 04:
The test is, did it contribute to the verdict?

[00:07:50] Speaker 04:
And here we know it contributed to the verdict because the magistrate judge said, I would rely on that statement as the body of the evidence against you.

[00:07:57] Speaker 00:
Okay, but we're talking about this evidence of this participation in this case.

[00:08:16] Speaker 00:
We understand that.

[00:08:17] Speaker 00:
But that was disclosed by the government that the arresting officer had been part of that group.

[00:08:24] Speaker 00:
And my understanding is sort of the protocol is that the government has to give that notice and has to have checked what I understand to be a database to see whether this officer did more than sort of be a member of the group.

[00:08:36] Speaker 00:
That is, did he post?

[00:08:37] Speaker 00:
Did he really participate in this banter that's offensive and

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him to a credibility attack.

[00:08:48] Speaker 00:
And my understanding is they did that.

[00:08:50] Speaker 00:
And so, right?

[00:08:51] Speaker 00:
And in other cases where I have seen this, counsel, which you're probably familiar with, the government has given that notice.

[00:09:01] Speaker 00:
And when there's a hit, that is when the officer didn't just sort of, there was more than just membership in the group, but he actively participated in the offensive, Paula Stings, then there's an in-camera review by the court.

[00:09:14] Speaker 00:
So why is it in this case that the government had to do more than give notice?

[00:09:18] Speaker 00:
I understand that you thought that notice was late, but it was before trial.

[00:09:23] Speaker 00:
And I'm also sure the judge, his office of the court, that they had done that review.

[00:09:35] Speaker 04:
something that an agent likes on a Facebook group doesn't rise to the level of disciplinary action against that agent, doesn't mean that it wouldn't be an impeachment material.

[00:09:44] Speaker 04:
There could be something that would be serious enough that you would go after the agent in an investigation, but not necessarily, but something that could be used at trial and not necessarily rise to the level of discipline.

[00:09:57] Speaker 04:
And the late disclosure, the night before trial, basically prevented us from having any ability to go on our own.

[00:10:20] Speaker 04:
That's true, but the problem, as we've argued, Your Honor, is that that was putting Mr. Anandas in a coercive position, where he had to decide between his rights.

[00:10:29] Speaker 03:
And in Garrity... But he'd previously assured the court that there were no discovery issues, and this material apparently didn't reach the prosecutor until the night before the trial.

[00:10:40] Speaker 04:
There's nothing in the record saying that.

[00:10:43] Speaker 04:
And in fact, Your Honor, when we said, no, the government's complying with discovery, that was because we had made a request for this evidence.

[00:10:52] Speaker 04:
The government had not given us anything.

[00:10:54] Speaker 04:
And so we made a good faith assumption that he was not a member of this group.

[00:10:57] Speaker 04:
And so the government had more than a year to...

[00:11:21] Speaker 04:
The arresting agent is the most important witness at trial.

[00:11:26] Speaker 03:
Okay, but that still doesn't answer.

[00:11:28] Speaker 03:
I mean, we don't know what, if anything, he posted on the Facebook page, right?

[00:11:33] Speaker 04:
And that's the whole point of if we don't get discovery, then the remedy that we're seeking for that is a remand for the production of that evidence.

[00:11:48] Speaker 00:
of the government, that's been established where – Henthorne?

[00:11:53] Speaker 00:
No, no, for this particular Facebook group, that the government would go through this protocol.

[00:11:58] Speaker 00:
Is it just Henthorne, or was there not some kind of an agreement as to this particular incident with this Facebook group?

[00:12:04] Speaker 04:
I'm – government council can speak to this as well, but I'm not aware that there's a particular sort of agreement, but I think the government

[00:12:20] Speaker 00:
But my understanding, so you can both have an opportunity to correct me if I'm wrong, is that the government has agreed that it would be impeaching.

[00:12:27] Speaker 00:
So they're giving notice of who was impeaching.

[00:12:44] Speaker 04:
But if I've got that

[00:13:05] Speaker 00:
So you're not contesting they gave you a notice that this officer was a member of the Facebook book group and they on record said that they had looked to see whether or not he had posted.

[00:13:14] Speaker 00:
Is your objection that they didn't look to see whether or not he might have otherwise been disciplined or that there maybe it's that there might have been

[00:13:24] Speaker 00:
material, impeachment material, short of discipline.

[00:13:28] Speaker 04:
I'm not, it's not my understanding from the record that they said he never posted.

[00:13:33] Speaker 04:
It's my, and that was the case in, for instance, the Bernal Sanchez case.

[00:13:37] Speaker 04:
I'm not aware that they have claimed that here.

[00:13:39] Speaker 04:
I think they've only said here that this, he was not disciplined, and government counsel can certainly correct me if I'm wrong.

[00:13:46] Speaker 04:
I would like to save some time to rebuttal if it's possible.

[00:13:54] Speaker 00:
We'll have two minutes on the clock when you come back.

[00:13:58] Speaker 00:
Maybe government's counsel can clear this up.

[00:14:02] Speaker 02:
I'll try to, Your Honor.

[00:14:03] Speaker 02:
May it please the Court, interchanging for the United States, and I'll start with the 1015 issue.

[00:14:10] Speaker 02:
First, I want to share my agreement with Judge Clifton that to the extent that there was any

[00:14:18] Speaker 02:
material, it was harmless.

[00:14:21] Speaker 02:
But I want to focus my attention on the fact that our position is that there was no discovery violation.

[00:14:28] Speaker 02:
What happened in this case was that Hernandez requested in his written discovery request just for whether or not Agent O'Reilly was part of that group, whether he was a member of that group, and we provided that information.

[00:14:45] Speaker 00:
I don't have the dates.

[00:14:47] Speaker 00:
There's the one hearing at which defense counsel represented to the court that it didn't need to rule on the other discovery motions, and I think it's an express waiver, but the request you're speaking of now for the 10-15 information, did that come later, closer to trial?

[00:15:03] Speaker 02:
Well, that request had been made early on in the case.

[00:15:07] Speaker 02:
I think it was about

[00:15:13] Speaker 02:
And then the day before the trial, the AUSA disclosed to the defendant that the agent- So back up then, if you would forgive me if I'm interrupting, back up then to the first hearing.

[00:15:25] Speaker 00:
This is where the judge is going through and ruling on a bunch of discovery motions.

[00:15:29] Speaker 00:
Correct.

[00:15:30] Speaker 00:
And then the defense counsel says he's going to hold the motion in advance, and then defense counsel says,

[00:15:40] Speaker 00:
boxes produced substantial discovery.

[00:15:42] Speaker 00:
The judge says, I'll deny that as moot.

[00:15:43] Speaker 00:
The judge says, I think that's fine at this time.

[00:15:46] Speaker 00:
So at that point of this hearing, you're saying that the 1015 request was outstanding?

[00:15:52] Speaker 02:
Well, I think the 1015 request was outstanding.

[00:15:55] Speaker 02:
And I think that what had happened was the government had conducted its henthorne checks, and its henthorne checks came back negative.

[00:16:04] Speaker 02:
And so that was probably-

[00:16:14] Speaker 02:
hearing.

[00:16:15] Speaker 02:
And so what happened in this case was the AUSA said that, first of all, let me back up and talk about HENFORN.

[00:16:22] Speaker 02:
What HENFORN requires is for the AUSA to go to the agency and ask, is there any impeaching material on this agent that we need to turn over to the defense?

[00:16:36] Speaker 02:
Correct.

[00:16:36] Speaker 02:
And so that's what the

[00:16:50] Speaker 02:
at the discovery hearing.

[00:16:52] Speaker 00:
Now, the record is in clear- Because you're still packing too much in there.

[00:16:56] Speaker 00:
Okay.

[00:16:56] Speaker 00:
What does that involve?

[00:16:57] Speaker 00:
Is there- this is- we're really very interested in this because it's an important obligation.

[00:17:01] Speaker 00:
Yeah.

[00:17:01] Speaker 00:
And so is it the government's practice or has it been a court order or a stipulation or an agreement that within its hands-on duties, once this group popped up, is it the government's practice to look to see whether or not an agent is a member of the group and whether he posted, he or she posted?

[00:17:17] Speaker 00:
I can't speak to what is outside the record of this case, but I can say... Well, maybe I can help you, because I was on the Bernal Sanchez case, and that was the representation of the government at that time, and if I'm misunderstanding that, it would be helpful for me to know.

[00:17:29] Speaker 02:
I believe that what happened in this case, what the EOSA did in this case, was the EOSA went to the General Counsel's office for CPP and asked that office whether or not there was any impeaching material that was

[00:17:47] Speaker 02:
that it wasn't.

[00:17:50] Speaker 02:
I think that was the check.

[00:17:51] Speaker 02:
That was the particular check.

[00:17:56] Speaker 02:
Yes, and I think here it might be a good time to for me to explain why Bernal

[00:18:11] Speaker 00:
in your way but I think there had to have been more than just no there's no impeachment material because I think that the US attorney represented to the court we've checked he was a member of the group that was a discovery request was a member of the group and I think there's confirmation that he was a member of the group

[00:18:30] Speaker 02:
He did tell the court that he was a member of the group and that he provided this information, the date for trial, but the record does not explain how he learned that information.

[00:18:41] Speaker 00:
Well, presumably it's from checking with his clients, but okay.

[00:18:44] Speaker 00:
Well, I think... What difference does it make how he learned that?

[00:18:46] Speaker 00:
Maybe I'm missing something there.

[00:18:48] Speaker 00:
Why do I care about that?

[00:18:49] Speaker 02:
I don't think it doesn't make a difference.

[00:18:51] Speaker 02:
I think he disclosed that information to the defense, and that was the information that the defense requested.

[00:18:58] Speaker 02:
The defense did not ask for additional information.

[00:19:01] Speaker 02:
It was apparently satisfied with the information that it

[00:19:09] Speaker 00:
So could I ask you the other question that I promise I'm going to try to go into another subject, but is there anything in any of these cases where the government has taken on this burden or been ordered to take on the burden to, as part of Hanthorne or otherwise, to check to see about membership in the group, to check to see about whether or not there have been any postings?

[00:19:31] Speaker 00:
And I think the practice, as it was represented in Bernard Sanchez, is if there had been postings by the officer, then there's to be an in-camera review.

[00:19:40] Speaker 00:
maybe that's just all happening under the rubric of Henthorne, is that right?

[00:19:45] Speaker 02:
Well, Your Honor, my understanding is that, and I know you're very familiar with Bernal-Sanchez, but my understanding of what happened in Bernal-Sanchez was that the court had ordered the government to, that the court had held the government should have gone above and beyond what was required in Henthorne, because due to the contemporaneous nature

[00:20:09] Speaker 02:
activity in that case.

[00:20:11] Speaker 02:
The record of that case was not clear whether or not any findings by CBP of improper Facebook activity would have made it into the agent's personnel file in time.

[00:20:30] Speaker 00:
And then from one of these other cases that I've had, I became aware that that process was complete, right?

[00:20:37] Speaker 00:
And the idea was any disciplinary action that flowed out of that investigation would have made it into the personnel files.

[00:20:58] Speaker 02:
And that any improper activity on that Facebook site would have been transmitted to CBP's counsel's office by June of 2020.

[00:21:07] Speaker 02:
And that's a very important date because in the record of this case, the defendant did not make the request for Agent Norelli's personnel file until October of 2020.

[00:21:17] Speaker 02:
And we know from the record of this case that in response to that motion,

[00:21:34] Speaker 02:
Thorn was insufficient.

[00:21:36] Speaker 02:
It was not insufficient for purposes of this case.

[00:21:38] Speaker 00:
Okay, so some of what you just said I think was not in our record or in the briefing here, but it's in both of your heads.

[00:21:43] Speaker 00:
So that was helpful to get that, but I think we're all caught up.

[00:21:46] Speaker 00:
That brings us right to the point of opposing counsel's argument today, which is that her concern about her ongoing, which she considers to be an ongoing discovery request, is that there may be some delta between defense counsel's

[00:22:05] Speaker 00:
a triggering event for purposes of discipline.

[00:22:08] Speaker 00:
What about that?

[00:22:09] Speaker 02:
Well, I think what the defense was asked – well, first of all, again, I want to emphasize that in the discovery, in this trial, they didn't ask for anything more than whether or not Agent Early was a member of that group, and we provided that information.

[00:22:28] Speaker 02:
But to the extent that

[00:22:32] Speaker 02:
beyond that and provided, you know, any evidence of improper Facebook activity.

[00:22:39] Speaker 02:
Our understanding is that to the extent that there was any active Facebook activity that would have responded or interacted with any of the derogatory information, that information would have been transmitted to CBP, CBP generals, general counsel's office.

[00:22:58] Speaker 00:
The council were just talking right past each other.

[00:23:00] Speaker 00:
Her concern is I'm going to give you a hypothetical.

[00:23:05] Speaker 00:
But perhaps he had not posted, but he had, you know, liked something that was very offensive, for example.

[00:23:11] Speaker 00:
I can imagine defense counsel would want that.

[00:23:13] Speaker 00:
And the description that you're describing, I mean, that you're giving me is one that would have

[00:23:22] Speaker 00:
response, he's getting ready to get up and say that would be a hint for an obligation.

[00:23:26] Speaker 00:
What is your response, please?

[00:23:27] Speaker 02:
Our understanding is that to the extent that there was any type of interaction with improper content, whether it was a response like or any type of your thumbs up, that was something that would have been covered.

[00:23:41] Speaker 00:
Impeaching, even if not subject to discipline, would be impeaching and discoverable?

[00:23:45] Speaker 02:
That would have been something that would have been snatched up by the CBP.

[00:23:55] Speaker 00:
discipline or not, why wouldn't it just be impeachment under a hand-throwing that would have to be produced to, or Brady, or however you want to, whichever of these obligations, because they're overlapping obligations, and why wouldn't that be discoverable?

[00:24:09] Speaker 02:
Well, in this case, I think we've established that that information didn't exist.

[00:24:13] Speaker 00:
We have.

[00:24:15] Speaker 02:
Well, we believe that we've established in our briefing that that information didn't exist.

[00:24:19] Speaker 02:
Because he didn't post it.

[00:24:23] Speaker 02:
that's what Agent Neroli testified to at the trial and to the extent that there was any type of posting that would have made it to CBP's CBP General Counsel's office and that that would have been that would have been disclosed to the AUSA during the handbook check.

[00:24:41] Speaker 00:
So when you use the word post, you're including any response, any thumbs up?

[00:24:44] Speaker 00:
Correct.

[00:24:45] Speaker 00:
That's helpful.

[00:24:46] Speaker 00:
Correct.

[00:24:50] Speaker 00:
But I think we got there.

[00:24:52] Speaker 00:
Did you want to speak to the Miranda issue?

[00:24:55] Speaker 02:
Yes, I'll get to Miranda.

[00:24:59] Speaker 02:
I think the defense takes issue with whether or not the Miranda warning used the word can instead of will.

[00:25:09] Speaker 02:
And we'll concede that if you open up a dictionary and you look at the word can and will, you're going to get a different definition.

[00:25:17] Speaker 02:
But I think everyone knows.

[00:25:20] Speaker 02:
words are used in the context of a sentence matters a great deal.

[00:25:26] Speaker 02:
And the way that the word was used in this case, can as part of a directive with no other limiting language, I don't think there's any uncertainty with the use of the word can in this case.

[00:25:38] Speaker 02:
And I'll just pick up on the example that Hernandez used in his replay brief about the child asking a parent for a cookie.

[00:25:47] Speaker 02:
If a parent tells a child, if you go

[00:25:51] Speaker 02:
I think the child is going to pretty much expect that cookie justifiably if he goes and cleans his room.

[00:25:59] Speaker 02:
So there wasn't any Miranda violation in this case.

[00:26:03] Speaker 02:
It was reasonably conveyed to the defendant, and we urged the court to find that there was nothing wrong with the Miranda defiasal.

[00:26:11] Speaker 00:
Could you follow up on Judge Clifton's concern?

[00:26:13] Speaker 00:
I think it's a really good one.

[00:26:15] Speaker 00:
This is a very skinny defense about whether

[00:26:26] Speaker 00:
across the border somewhere other than at a port of entry.

[00:26:29] Speaker 00:
And I don't know where the best place is to look in the record to figure out just how remote this location was.

[00:26:36] Speaker 00:
I fully appreciate that when asked whether he came through the mountains, he said he came through the mountains.

[00:26:40] Speaker 00:
But there's this Miranda issue.

[00:26:42] Speaker 00:
So can you fill us in about where should we look in the record for this geography?

[00:26:55] Speaker 02:
look at the testimony of the agent who was operating the surveillance scope.

[00:27:02] Speaker 02:
Agent Norelli testified that this person was apprehended eight miles away from the nearest port of entry, about two miles into the United States from the border.

[00:27:13] Speaker 02:
And eight miles away from the port of entry is pretty far ways away.

[00:27:18] Speaker 02:
And Agent Norelli also testified that

[00:27:25] Speaker 02:
there and so it was a place where you know illegally illegal aliens were known to frequently cross because there were no border walls and that's consistent with Mr. Hernandez's confession that he had walked through the mountain.

[00:27:38] Speaker 02:
Now I want to also turn to the testimony of the surveillance operator and what he had testified to was that it was a remote area very rugged and he had surveilled

[00:27:51] Speaker 02:
minutes watching him kind of cross through rugged terrain while brush and I'll you know I'll also add in the point that he gave no indication that there were any cars in the area and so I think that is another sort of there are many ways to find that you know it's highly unlikely that he was smuggled through the border but that's just another

[00:28:19] Speaker 02:
The van, I don't know that that is part of their appeal.

[00:28:22] Speaker 02:
I don't think they've challenged the discovery.

[00:28:25] Speaker 03:
Well, it's in the record somewhere, so, I mean, it's before us.

[00:28:28] Speaker 03:
I just don't, I just couldn't tell from the reference to it how far away the vehicle was from where it was.

[00:28:35] Speaker 02:
Yeah, and that was never developed in the record because the judge denied that discovery and they haven't developed that in this opinion.

[00:29:00] Speaker 02:
go for the helicopter dispatch.

[00:29:03] Speaker 02:
But that's all different.

[00:29:04] Speaker 02:
You mean the recordings of the radio traffic?

[00:29:07] Speaker 02:
The recordings of the radio traffic that was taken from the helicopter.

[00:29:13] Speaker 02:
Yeah.

[00:29:14] Speaker 02:
OK.

[00:29:14] Speaker 02:
OK.

[00:29:15] Speaker 02:
I know there's some other issues that we haven't gone to, but I'm happy to answer.

[00:29:18] Speaker 02:
I think the question's all briefed.

[00:29:20] Speaker 00:
It looks like we're out of questions.

[00:29:22] Speaker 00:
Thank you.

[00:29:22] Speaker 02:
Thank you very much.

[00:29:30] Speaker 04:
I would take dispute the factual characterization by opposing counsel.

[00:29:37] Speaker 04:
I'm reading from ER 89, and this is going to the issue of if Agent Norelli ever posted.

[00:29:43] Speaker 04:
And on ER 89, it says, turning briefly to the Facebook group, did you ever post anything that is xenophobic, racist, prejudiced?

[00:29:50] Speaker 04:
No, sir.

[00:29:51] Speaker 04:
That's the only reference to it, and that's a subjective

[00:29:55] Speaker 04:
self-representation by the agent.

[00:29:57] Speaker 03:
It's not an admission that he posted.

[00:29:59] Speaker 03:
I mean, it's kind of an ambiguous answer.

[00:30:01] Speaker 04:
And that's the point.

[00:30:02] Speaker 04:
And that's the point.

[00:30:03] Speaker 04:
I think this goes to Judge Christian's question about was there evidence that he posted or not.

[00:30:10] Speaker 04:
There's nothing in the record that I'm aware of.

[00:30:11] Speaker 04:
The only thing in the record is that he didn't post anything racist, xenophobic, but things that he posted

[00:30:23] Speaker 04:
idea that he did post something that in our opinion, subjectively, or his subjective opinion, that could have gone towards impeachment.

[00:30:32] Speaker 00:
Was there not also representation by counsel to the court that this check had been made?

[00:30:38] Speaker 04:
There was a representation that the check had been made, but again, I don't think that that necessarily

[00:30:45] Speaker 04:
put both parties on the same plane in terms of, well, was this post something that could be impeachable or not?

[00:30:52] Speaker 00:
Okay, so opposing counsel's other position on this, or a counter on this, is that they answered the discovery request that they received.

[00:31:00] Speaker 00:
And the question was, is Agent Narelli a member of the group, or was he a member of the group?

[00:31:07] Speaker 00:
What is your response to that?

[00:31:08] Speaker 04:
They said that the night before.

[00:31:10] Speaker 04:
That didn't give us enough time.

[00:31:11] Speaker 04:
So that was a problem.

[00:31:12] Speaker 04:
In my last few seconds, I want to briefly touch on Miranda.

[00:31:16] Speaker 04:
The example that I would give, for instance, would be if you practice every day, you can become a major league baseball pitcher.

[00:31:25] Speaker 04:
There are situations where can means may.

[00:31:28] Speaker 04:
If you go to law school, you can make a million dollars.

[00:31:30] Speaker 04:
If it rains in March, flowers will grow in April.

[00:31:34] Speaker 04:
Can is not

[00:31:40] Speaker 03:
Your argument almost requires a talismanic incantation of specific rules, and the Supreme Court has told us on more than one occasion.

[00:31:50] Speaker 03:
There are no magic words here.

[00:31:52] Speaker 03:
As long as in the totality of the circumstances, the court can satisfy itself that the defendant knowingly and voluntarily waved, understood and waved his rights.

[00:32:04] Speaker 04:
Can is very similar to may, and may is not good enough.

[00:32:07] Speaker 04:
This court has held that may is not good enough.

[00:32:09] Speaker 04:
And so the problem is that if, for instance, that's why the ABA model Spanish advisor doesn't use the translation that was used here, it uses something else.

[00:32:19] Speaker 03:
But in an hypothetical case, if the defendant has too many assets and doesn't qualify for appointment of counsel, then the court doesn't appoint one.

[00:32:38] Speaker 04:
It is correct that there are times when can is used in a way that there is a condition that has not been satisfied.

[00:32:47] Speaker 04:
The problem is it can be used both ways and because it's ambiguous it wasn't good enough here.

[00:32:52] Speaker 04:
One last question.

[00:32:53] Speaker 04:
Sure.

[00:32:53] Speaker 03:
I think what I read to be a factual finding on the coercion issue that the defense basically was engaged in.

[00:33:11] Speaker 03:
that was going to expire the next day.

[00:33:15] Speaker 03:
What do we do with that finding by the trial court that there was no coercion here because it was a tactical move?

[00:33:23] Speaker 04:
Well, tactical moves are still not something that can be coerced.

[00:33:28] Speaker 04:
In other words, for instance, in Garrity, the Supreme Court case, what happened is there were police officers

[00:33:35] Speaker 04:
misconduct and they told the police officers well you have a Fifth Amendment right not to say anything but if you don't say anything you'll be fired.

[00:33:43] Speaker 04:
They made a tactical decision and that the Supreme Court said is not good enough.

[00:33:48] Speaker 03:
But that's a Fifth Amendment right to remain silent.

[00:33:51] Speaker 03:
Here there is no constitutional right to avoid a civil arrest for being an illegal alien found unlawfully in the United States.

[00:33:58] Speaker 04:
We would disagree we would hold that the Tierra

[00:34:04] Speaker 04:
actually said that there was a constitutional right under the common law to avoid a courthouse arrest.

[00:34:38] Speaker 04:
court until the morning of trial.

[00:34:40] Speaker 04:
That's not correct.

[00:34:41] Speaker 04:
It actually reached the court.

[00:34:42] Speaker 04:
It was finished briefing 12 days before trial.