[00:00:00] Speaker 00:
Thank you, Your Honor.

[00:00:02] Speaker 00:
Good morning.

[00:00:02] Speaker 00:
Xandra Lopez of the Federal Defenders on behalf of Ms.

[00:00:05] Speaker 00:
Martinez.

[00:00:06] Speaker 00:
I will be watching the clock and attempting to reserve two minutes of my time for rebuttal.

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At trial, the jury heard multiple pieces of inadmissible evidence regarding a prior 2013 border crossing.

[00:00:20] Speaker 00:
They then heard that Ms.

[00:00:21] Speaker 00:
Martinez was involved in a, quote, prior smuggling incident where she was driving a different car loaded with drugs.

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By then, the damage was too big and the ability to cure was too late.

[00:00:35] Speaker 00:
This court must reverse her conviction.

[00:00:38] Speaker 00:
The district court applied the wrong legal standard for determining whether to grant a mistrial, and its analysis was illogical and without support in the record.

[00:00:49] Speaker 00:
The air was not harmless.

[00:00:51] Speaker 02:
So first question for you.

[00:00:52] Speaker 02:
We were trying to figure out if there was a witness list that was presented that the parties shared in advance of trial.

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And the docket is a little unclear about that.

[00:01:03] Speaker 02:
So was there a witness list that was provided to the defense so that you would know which witnesses were coming forward?

[00:01:09] Speaker 00:
I'm not sure your honor I can look into that I know there's some confusion and regarding the docket But what I from the record it's clear that the defense attorney is the one that brought up that looking at the witness list By the time that agent Bernal was testifying that there was witnesses missing If there was a witness list provided in advance of trial then the defense would have been on notice of

[00:01:37] Speaker 02:
of how the government intended to demonstrate their case and if there was no person listed on that list that would have had information about that prior incident could have raised the objection earlier.

[00:01:49] Speaker 00:
Well, Your Honor, it's our position that the defense did raise the argument in the pretrial motions and specifically said that there weren't similarities.

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The government is the one that made representations that it would have witnesses and evidence to prove these similarities, and the district court itself found that it relied on the representations of the government in allowing the evidence in.

[00:02:19] Speaker 02:
Yeah, I think that argument makes total sense from your side.

[00:02:23] Speaker 02:
I'm trying to figure out exactly how that plays out.

[00:02:25] Speaker 02:
Because if everybody knew who the possible witnesses were in advance, then maybe you would be able to test that.

[00:02:31] Speaker 02:
If not, if there was no witnesses provided, then it does seem like the defense was put at a bit of a disadvantage in terms of the motion and limiting ruling and the expectation the court had about how this information was going to come in.

[00:02:43] Speaker 02:
The defense sort of lets the air out of the sail a little bit

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preemptively and then it's too late, right?

[00:02:50] Speaker 02:
I mean, that's your argument.

[00:02:51] Speaker 00:
Well, the argument is that the district court applied the wrong legal analysis when it was finally discovered that the government couldn't prove what it promised that it was going to prove.

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So the district court abused its discretion when it denied the motion for mistrial when it relied on only two factors, and those were bad faith.

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And the court specifically referenced

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only bad faith when denying the motion for mistrial it said it was denying it because number one it didn't find that the government acted intentionally and then number two in its pretrial motions it found that it was in bad faith and the court said at this point I'm not prepared to grant a motion for mistrial for the government's papers even if the even if we were to agree that the district court applied the wrong standard why wouldn't it be harmless error

[00:03:46] Speaker 00:
Your Honor, I urge Your Honors to look at Foster, which is a border smuggling case similar to this case where the court found that it was not harmless.

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There, there were similar facts.

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including more than 100 of packages concealed throughout the car in consistent statements by the defendant.

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But this court found that although the deny knowledge story was less than compelling, the story is plausible.

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And because of that, it was harmless.

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And I'd like to address several of the circumstantial evidence that the government uses in order to argue that there was knowledge.

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So first, the non-factory compartment.

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I think the argument by the government is it could not have been built the night before Ms.

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Martinez's arrest.

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But the way that evidence was developed at trial at ER 107, 288, 32,

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321, Armando had access to that car well in advance before Ms.

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Martinez's July arrest.

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In fact, he admitted to purchasing the car and the car was purchased in April, although he said that was the only time that he was in the car.

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That was a lie because it later came out that he was also in the car in May when it crossed from Mexico into the United States.

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So Armando had access to the car well before the date of arrest, well before that night.

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Also, the drugs weren't visible to the driver.

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At ER 191, 193, there's a discussion about the pictures that were taken by the primary officer, and those pictures do not show that from Ms.

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Martinez's position she would have seen the drugs hidden in her car.

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Also, the primary officer at 134 described how he drove the car from primary to secondary, and he did not state that he saw the drugs at any point from when he was in the same position as Ms.

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Martinez.

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Finally, as to Armando, the government's argument is that Armando destroys Ms.

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Martinez's credibility.

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But Armando also had a motive to lie.

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He was being implicated in this offense, and so, of course, he's going to lie.

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Also, his daughter was detained at the border, so he had reasons to lie, and he was also impeached multiple times.

[00:06:15] Speaker 02:
He tried to distance... The problem for you there is, if you're coming down to a credibility,

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issue then, I mean, we give a lot of deference to the jury, right?

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The jury heard the evidence and heard the witnesses and so that seems like a hard argument to make.

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But the difference is given when the problem here is that the jury heard that Ms.

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Martinez had smuggled a car, smuggled drugs in a similar fashion to the way she did now.

[00:06:45] Speaker 03:
Well, there was a curative instruction and jurors are presumed to follow the instructions.

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So can you tell me, despite that presumption, why there's still prejudice?

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You're focusing on the weakness of the evidence.

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I understand that.

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But this was a curative instruction

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offered by the defense and the court read it as the defense asked it to, right?

[00:07:08] Speaker 00:
Yes, Your Honor, but there's two things.

[00:07:10] Speaker 00:
There's two problems with it.

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One, our position is that the prejudice was too big to cure.

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And by the time the curative was given, it was way too late.

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So it was insufficient because of the amount of cumulative prejudicial evidence that came in.

[00:07:30] Speaker 00:
The jury heard that Miss Martinez was suspected of smuggling something back in 2013, and they heard that from Agent Dawson.

[00:07:40] Speaker 00:
They heard that she was suspected of smuggling something like human smuggling, drugs, or bringing medications.

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And then through Agent Bernal, they heard that after he arrested Ms.

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Martinez, he went back and investigated the events of 2013.

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And he interviewed Ms.

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Martinez's associate back from that time.

[00:08:02] Speaker 03:
So basically, the gist of your argument is, even though the jury was told to ignore the hat,

[00:08:07] Speaker 03:
It's too hard to unring the bell when you weigh in the weakness of the knowledge evidence.

[00:08:13] Speaker 00:
That's correct, Your Honor.

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Plus, it was way too late.

[00:08:16] Speaker 00:
This is different because in this case, the evidence came in with the anticipation that it could come in.

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So it all came in freely without any immediate instruction.

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So for the jury, they heard.

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piece by piece all of these inadmissible evidence, layers of evidence.

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So at the very end it was natural for the jury to conclude that in 2013 Miss Martinez was again smuggling, driving a car loaded with drugs just like she did in 2013.

[00:08:52] Speaker 00:
So I see my time is running out.

[00:08:55] Speaker 03:
Thank you counsel.

[00:09:09] Speaker 01:
Good morning, Your Honors.

[00:09:11] Speaker 01:
May it please the Court, Mark Rahe, for the United States.

[00:09:14] Speaker 01:
Judge Forrest, to get to the question you asked, an excerpt, or not excerpt, ECF document 46 was the government's trial brief, and that was filed 10 days before the trial.

[00:09:27] Speaker 01:
That list, the witnesses, and none of the witnesses on that list were from Arizona.

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And, you know, the government...

[00:09:36] Speaker 02:
suggest or directly tell the district court when you are arguing the motion and limiting that you're going to have somebody who was going to be able to talk about the Arizona incident?

[00:09:45] Speaker 01:
Not from Arizona.

[00:09:46] Speaker 01:
And I'm glad you brought that up, too, because as I was reviewing the record again, and you know, this is primarily one volume of excerpt of record 23 through 26.

[00:09:56] Speaker 01:
At the time this was litigated pre-trial, there was never any specific commitment to exactly how this was going to be proven when the district court admitted it.

[00:10:05] Speaker 01:
Some district judges say, all right, I want to know up front, how is this going to be proven?

[00:10:10] Speaker 01:
You don't see that here.

[00:10:11] Speaker 01:
But what you do see is a consistency.

[00:10:13] Speaker 01:
And maybe in retrospect, it wasn't enough.

[00:10:16] Speaker 01:
But if you compare excerpt of record volume one, page 24, that's during the motion in Lemony here.

[00:10:22] Speaker 01:
And the prosecutor's saying, look, we have text records.

[00:10:25] Speaker 01:
that showed the crossing and the stop at the border patrol checkpoint.

[00:10:30] Speaker 01:
And we have her statements in her plea agreement.

[00:10:32] Speaker 01:
And that was the pretrial litigation.

[00:10:34] Speaker 01:
And then during the mistrial motion, the judge said, OK, hey, wait a second.

[00:10:39] Speaker 01:
How exactly are you proving this?

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And this is at one excerpt of record, page 35.

[00:10:44] Speaker 01:
The same prosecutor says the text records and the plea agreement statements.

[00:10:48] Speaker 01:
Now, at that point, the judge felt that that wasn't good enough, but the only reason I bring that up is to say, you know, I know that you see a current in the defense briefing or even below, they pulled the rug out from under us.

[00:11:00] Speaker 01:
It would be one thing.

[00:11:01] Speaker 01:
I wouldn't be able to stand up here and represent otherwise if we had told the court, you know what, we want this prior incident.

[00:11:09] Speaker 01:
And here's Agent Smith, Agent Thompson.

[00:11:11] Speaker 01:
They're on the witness list.

[00:11:13] Speaker 01:
And then at the last second, they get pulled away.

[00:11:15] Speaker 01:
None of that happened.

[00:11:17] Speaker 01:
Here, 10 days before trial, the defense was given that witness list.

[00:11:22] Speaker 01:
I know your clerk's going to access that ECF 46.

[00:11:25] Speaker 01:
I'm happy to provide a copy and a 28-J letter.

[00:11:28] Speaker 01:
But the only point I want to make out is that this wasn't some reckless roughshod thing.

[00:11:33] Speaker 01:
The government pretty much was consistent.

[00:11:36] Speaker 01:
They were consistent with how they wanted to prove it.

[00:11:38] Speaker 01:
Now that said, I know my counsel is also claiming that the court applied the wrong legal standard.

[00:11:45] Speaker 01:
You know, there really is no bright line defined standard.

[00:11:49] Speaker 01:
And even in the reply brief, we point out that it's just a totality of the circumstances.

[00:11:54] Speaker 01:
In the reply brief, the defense cites a case, United States versus Escalante, from 1980 that makes the exact same point.

[00:12:01] Speaker 01:
Here, what the court did, and I believe it is a federal rule of criminal procedure that also

[00:12:08] Speaker 01:
governs 26.3.

[00:12:10] Speaker 01:
What it says is that before a court considers a mistrial, it has to give both parties the opportunity to be heard.

[00:12:16] Speaker 01:
That's exactly what the court did here.

[00:12:19] Speaker 01:
When that mistrial, when you look at that transcript, the judge already had all the transcripts up, said, let's talk about this.

[00:12:27] Speaker 01:
He heard a whole bunch of considerations.

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The defense wants to make it seem like somehow it was just about his finding that the prosecutor didn't have bad faith.

[00:12:36] Speaker 01:
We would disagree with that.

[00:12:38] Speaker 01:
That wasn't the only thing the court said.

[00:12:40] Speaker 01:
Obviously, in a totality of circumstances analysis, every district judge is free to give certain circumstances more weight than others.

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Had the district court denied a mistrial but found bad faith by the government, you would be hearing the defense saying that that would be an abuse of discretion.

[00:12:58] Speaker 01:
So here, if the district judge three times found inappropriate or bad faith conduct, that doesn't mean the court applied the wrong legal standard.

[00:13:08] Speaker 01:
That's just a circumstance that the court pointed out.

[00:13:12] Speaker 01:
But the defense also claims that the court didn't take into account prejudice enough.

[00:13:16] Speaker 01:
Again, the government would disagree.

[00:13:18] Speaker 01:
The court said, look, it was just one question.

[00:13:21] Speaker 01:
I immediately asked the jurors to disregard the question.

[00:13:25] Speaker 01:
Earlier during defense counsel's presentation, the question was posed, why?

[00:13:30] Speaker 01:
shouldn't we assume that the judge followed the instructions?

[00:13:33] Speaker 01:
And here, of course, the curative instruction that the defense asked was given verbatim.

[00:13:38] Speaker 01:
You have Supreme Court cases, I believe March versus Richardson, going back decades that say we presume.

[00:13:44] Speaker 01:
I've been doing this 25 years.

[00:13:46] Speaker 01:
This is the first time I've ever seen a record where we have the voir dire.

[00:13:50] Speaker 01:
This jury was actually vetted for bias on this.

[00:13:54] Speaker 01:
Two questions were asked.

[00:13:55] Speaker 01:
If you ever hear, and this is again, this is at volume two of the excerpt of record, pages 52 to 53.

[00:14:03] Speaker 01:
If you were to hear that Ms.

[00:14:04] Speaker 01:
Martinez was arrested on a prior drug case, would that affect your views?

[00:14:08] Speaker 01:
Would anyone think that because she has an experience with the drugs in the past, she's more likely to have committed the charge defense, which goes right to the heart of 404B?

[00:14:17] Speaker 01:
Nobody responded to that, and the only two jurors who later harken back to that didn't make it onto the jury.

[00:14:24] Speaker 02:
What is your main evidence that you would point to to establish knowledge?

[00:14:30] Speaker 01:
I'm glad you asked that too, Your Honor.

[00:14:31] Speaker 01:
Driver sole occupant registered owner of a car with 100 pounds of meth, 2.94 kilograms of fentanyl, worth up to $300,000 wholesale.

[00:14:44] Speaker 01:
Those drugs were in packages literally surrounding her.

[00:14:46] Speaker 01:
There was a point during the opening presentation about how the drugs were all hidden.

[00:14:51] Speaker 01:
That's not entirely true.

[00:14:52] Speaker 01:
This defendant had a dog in the back of the trunk.

[00:14:55] Speaker 01:
There's bags of dog food right over the spare tire well.

[00:14:59] Speaker 01:
The officer testified.

[00:14:59] Speaker 01:
All he had to do was lift it up, and you see multiple packages there.

[00:15:03] Speaker 01:
But beyond that, that's just physical evidence.

[00:15:06] Speaker 01:
Text records were introduced.

[00:15:08] Speaker 01:
If the whole point is, you know, somebody, some third party set me up, am I following the same pattern every day?

[00:15:15] Speaker 01:
No.

[00:15:16] Speaker 01:
In 26 border crossings, she only had a passenger once and it was never that she crossed at the same time of day.

[00:15:23] Speaker 01:
you know, the same time of the week.

[00:15:26] Speaker 01:
When she got to primary inspection, she was overly talkative, even though it was 4.30 in the morning.

[00:15:32] Speaker 01:
She had $4,100 in cash on her.

[00:15:35] Speaker 01:
And then the final thing I'll point out, because this was also brought up, Armando Carballo, this is the, you know,

[00:15:42] Speaker 01:
The majority of our importation cases plead out.

[00:15:45] Speaker 01:
The ones that go to trial, it's always the same.

[00:15:48] Speaker 01:
Oh, it's not me.

[00:15:49] Speaker 01:
A third person sent me up.

[00:15:51] Speaker 01:
Here, that third person was a man named Armando Carballo, a close family friend, a part-time lover of the defendant.

[00:15:59] Speaker 01:
He testified.

[00:16:00] Speaker 01:
I've never seen that either.

[00:16:01] Speaker 01:
He literally took the stand.

[00:16:03] Speaker 01:
The defense can quibble with the credibility.

[00:16:05] Speaker 01:
She claimed that he gave her the car the morning of her arrest.

[00:16:10] Speaker 01:
That's an incredibly important fact.

[00:16:11] Speaker 01:
He got up and testified directly to the contrary.

[00:16:15] Speaker 01:
She tested, or the defendant claimed in her post-stress statement that Armando gave her the $4,100 in cash.

[00:16:22] Speaker 01:
He directly testified otherwise.

[00:16:25] Speaker 01:
That kind of a thing.

[00:16:26] Speaker 01:
And he was the first witness out of the gate.

[00:16:29] Speaker 01:
We didn't even do our usual thing of, oh, I'm the primary officer.

[00:16:33] Speaker 01:
Here's the secondary officer.

[00:16:34] Speaker 01:
No.

[00:16:35] Speaker 01:
The first witness we called was Armando Carballo.

[00:16:39] Speaker 01:
And then the one last thing I forgot to mention, too, is that the automobile expert.

[00:16:43] Speaker 01:
He testified.

[00:16:45] Speaker 01:
the drugs could only be accessed from inside the car, no signs of external force entry, the car could only be open with the transponder key that the defendant had in her possession, and that whole thing about the compartment, it needed at least 24 hours for the sealant to dry, which was dried, so if we somehow

[00:17:03] Speaker 01:
After all that, that's, the government would say, is overwhelming.

[00:17:07] Speaker 01:
Of course it's still circumstantial.

[00:17:09] Speaker 01:
Cases where people confess rarely go to trial, but when one considers the totality of the circumstances here, the government would stand on that evidence as proof of harmless error.

[00:17:21] Speaker 01:
And unless the court has any further questions, the government would submit.

[00:17:25] Speaker 03:
Thank you, counsel.

[00:17:36] Speaker 00:
A couple of factual points.

[00:17:37] Speaker 00:
The government keeps mentioning $40,000, and that's nowhere in the record.

[00:17:42] Speaker 00:
I believe $3,500 in cash was found in her possession.

[00:17:47] Speaker 00:
That's at ER 32.

[00:17:52] Speaker 00:
The issue of duplicate keys, the testimony came out at trial that the keys could have been duplicated, and as stated in Velarde Gomez, Ms.

[00:18:04] Speaker 00:
Martinez could have been followed.

[00:18:05] Speaker 00:
So there was all these explanations as to how the drugs either got in or got out of the car, and that was all presented during trial.

[00:18:13] Speaker 00:
As to the district court's analysis of prejudice, the government references the fact that the court said it was limited.

[00:18:21] Speaker 00:
But that limited analysis was only based on that one question posed to Agent Bernal.

[00:18:28] Speaker 00:
The district court failed to grapple with all of the evidence, all of the cumulative evidence admitted against Ms.

[00:18:36] Speaker 00:
Martinez.

[00:18:36] Speaker 00:
Evidence that the court below found to be inadmissible under 404B.

[00:18:43] Speaker 00:
And unless the court has any other questions,

[00:18:49] Speaker 03:
It doesn't appear that we do.

[00:18:51] Speaker 03:
Thank you very much, counsel, to both sides for your argument.

[00:18:53] Speaker 03:
The matter is submitted.