[00:00:00] Speaker 03:
And it's ready to go.

[00:00:02] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:05] Speaker 00:
I think that the appropriate outcome for this case is a new trial on Counts 6 and 7 and a remand for further proceedings concerning the discovery violations on Counts 3 through 5.

[00:00:19] Speaker 00:
Focusing first on the strongest argument, which is Count 7, Karami, Agent Karami,

[00:00:27] Speaker 00:
who discovered the CDs that underlie Count 7 was not able to identify them as the specific CDs that she recovered.

[00:00:38] Speaker 00:
She said, I was in room D, I found a spindle and maybe some loose CDs, and I gave them to Agent Perez.

[00:00:47] Speaker 00:
When those CDs are presented at trial, there's no further foundation, no handwriting analysis, no fingerprint analysis,

[00:00:57] Speaker 00:
And there's lots of suspects in this house.

[00:01:02] Speaker 00:
There's 38 large boxes of evidence that are recovered.

[00:01:08] Speaker 00:
They are strewn throughout the entire house.

[00:01:11] Speaker 00:
There are other residents of the house, including my client's brother.

[00:01:17] Speaker 03:
So did she find the CD in room D?

[00:01:21] Speaker 00:
I believe that she says she found the CDs in room D. You can say there's never

[00:01:27] Speaker 00:
The record is not clear that that was his room, that he had exclusive possession or control of that room.

[00:01:35] Speaker 00:
The record is, and I'll just focus on room seven, but that is how it's referred to as his room.

[00:01:43] Speaker 00:
But in the evidence, nobody lays the foundation that that is Robert Ornelas' room.

[00:01:49] Speaker 00:
He has clear custody and control of it.

[00:01:54] Speaker 00:
That's not there in the record.

[00:01:56] Speaker 00:
But even if that were in the record, once she finds these CDs, she hands them to Agent Perez.

[00:02:04] Speaker 00:
And we don't know what happens to them after that because Agent Perez was not there to testify.

[00:02:11] Speaker 00:
Chain of custody, it's an aspect of authentication.

[00:02:16] Speaker 00:
The purpose is to say this is the same item and it's in the same condition.

[00:02:24] Speaker 00:
Defense counsel was denied the opportunity to challenge Perez's role in that chain of custody.

[00:02:32] Speaker 00:
The man had committed suicide, and it was from the stress of this case.

[00:02:41] Speaker 00:
And the entire defense was focused on the chain of custody and the competence of this investigation.

[00:02:54] Speaker 00:
That was a legitimate focus.

[00:02:57] Speaker 00:
This case is amazingly troubling on so many levels, not just the subject matter, but also Agent Perez.

[00:03:06] Speaker 03:
And the district court was very... The trouble that I'm having with your argument is that this would not be the first trial where the government did not

[00:03:18] Speaker 03:
you know, perfectly close every little loop in chain of custody.

[00:03:22] Speaker 03:
Right.

[00:03:22] Speaker 03:
And so potentially an inference can be drawn that maybe the broken link has some significance.

[00:03:29] Speaker 03:
And that was up to defense counsel to argue that now since that, and you did argue that in this particular case, right.

[00:03:37] Speaker 03:
Challenging that the chain of custody and arguing that there was no inclusive control, all the arguments that you're now raising you had.

[00:03:45] Speaker 03:
The difference now is the subsequent discovery relating to the agent.

[00:03:52] Speaker 03:
And I don't know of anything in the record beyond just speculation that there was something more.

[00:04:01] Speaker 03:
And that's the problem.

[00:04:03] Speaker 03:
Despite the in-camera review, it's all speculation at this point.

[00:04:07] Speaker 00:
Well, it's a little bit.

[00:04:09] Speaker 00:
At the first trial, there was no evidence of the suicide because it was excluded and defense counsel

[00:04:15] Speaker 00:
was not informed that this was a result of the stress from this case.

[00:04:20] Speaker 00:
After remand, defense counsel was informed of that and brought a new trial motion based on, hey, Agent Perez committed suicide, and it was based on the stress of this case, and we needed that particularly to challenge count seven.

[00:04:35] Speaker 00:
Now there's a third level to that, which is the government's response to the defense's

[00:04:41] Speaker 00:
discovery requests, which were very specific.

[00:04:44] Speaker 00:
The agent Perez's sister said he had an exit interview on August 13th and he had submitted his resignation.

[00:04:55] Speaker 00:
The government comes back and says, with a declaration from the AUSA saying, I spoke with a bunch of people and none of them have heard anything about it.

[00:05:03] Speaker 00:
But that's a very specific discovery demand for a very specific incident

[00:05:09] Speaker 00:
And the government didn't meet its obligations to provide declarations from people with knowledge that they were checking with everybody who could potentially have knowledge on this very, very specific issue.

[00:05:21] Speaker 00:
So my point is, when we're talking about items that don't involve JJ and Jen Jen, those would be the possession items.

[00:05:32] Speaker 00:
Mr. Ornelas has a right to a new trial, particularly on count seven.

[00:05:36] Speaker 00:
because there is a legitimate issue as to whether those CDs that he was convicted of possessing were in fact discovered in his room.

[00:05:44] Speaker 00:
Then going beyond that, or in the room that the government says he possesses.

[00:05:50] Speaker 00:
And then even if they were discovered in there, like the computer underlying Count 6, there is a legitimate issue as to whether he had exclusive custody and control of that computer and

[00:06:06] Speaker 00:
had exclusive custody and control of that room, so you can assume he put those things on that computer.

[00:06:14] Speaker 00:
When you don't have that, then a

[00:06:19] Speaker 00:
A wild card in the mix like Agent Perez gives the defense a lot of room to argue, which they have never had the opportunity to do in this case.

[00:06:30] Speaker 00:
And I would just like to back up and talk about Judge Carney for a moment.

[00:06:35] Speaker 00:
Judge Carney, from the very beginning of this case, wanted to keep Agent Perez out of it.

[00:06:42] Speaker 00:
I think it was a November 16 or 17 hearing

[00:06:47] Speaker 00:
November 7, 2016 hearing, he was saddened and disappointed that he couldn't keep Agent Perez's death out of this.

[00:06:57] Speaker 00:
Then once the trial starts, he's

[00:07:00] Speaker 00:
actually questioning defense counsel's good faith for even attacking that.

[00:07:06] Speaker 00:
And he was focused on Agent Perez's privacy interest and the privacy interests of his family, which I admit are very weighty and make this case really sad.

[00:07:18] Speaker 00:
But they cannot outweigh a criminal defendant's right to due process and exculpatory evidence and rule 16

[00:07:28] Speaker 00:
right to material evidence on a trial where he's facing trial for his life.

[00:07:32] Speaker 00:
So I think that Judge Carney's conclusions should be, he had lost his objectivity in this case, and I think it just has to do with how terrible

[00:07:50] Speaker 00:
the facts of this case are, and it's terrible piled on top of terrible.

[00:07:55] Speaker 02:
And then- I mean, our case law says that courts can rely on a representation from the government, that they have done the investigation, that they have been ordered to do, and that they have found nothing.

[00:08:07] Speaker 02:
And courts are allowed to rely on that.

[00:08:08] Speaker 02:
I mean, that is a real hard proposition for you.

[00:08:12] Speaker 00:
I don't think so, Your Honor, because I think Jennings said that the government can rely on

[00:08:20] Speaker 00:
The government can rely on affidavits from people in a position to know.

[00:08:24] Speaker 00:
These aren't affidavits from law enforcement.

[00:08:27] Speaker 02:
I think Jennings is a procedural argument that the government didn't present its answer in the right format.

[00:08:32] Speaker 00:
That's no.

[00:08:33] Speaker 00:
They're not under oath statements by the law enforcement officers who looked.

[00:08:38] Speaker 00:
They're not under oath statements of what they looked for.

[00:08:41] Speaker 00:
And they're not under oath statements that they are the relevant pool of people that should be asked this question.

[00:08:46] Speaker 02:
So is Jennings your best authority for that's what the government's obligation is to do?

[00:08:50] Speaker 00:
No, that's to distinguish Jennings.

[00:08:51] Speaker 00:
And then to distinguish Lucas, which is the other main case.

[00:08:55] Speaker 02:
So let's stop distinguishing.

[00:08:56] Speaker 02:
Tell me the affirmative case that you have

[00:08:58] Speaker 02:
that supports the idea that the government's obligation is to do what you just described.

[00:09:02] Speaker 00:
Pennsylvania v. Ritchie is when a defense counsel identifies specific exculpatory information that they believe exists, the court can order its production under Rule 16.

[00:09:17] Speaker 02:
OK, well, that doesn't answer my question.

[00:09:22] Speaker 02:
That the court can order production doesn't tell me that

[00:09:26] Speaker 02:
In responding to that order, the government's obligation is to present affidavits or declarations describing exactly what they did in response when they found nothing.

[00:09:35] Speaker 00:
in in under the context of this case I believe they need to do it okay you don't have authority this is your argument for this case I have the authority that is in my brief I have the authority is my reply I cannot point the court to one particular case right now I was mainly focused on the government's cases that seem to say the contrary in which the district court cited and for the reasons I stated I don't believe they do and then going to counts

[00:10:07] Speaker 00:
Three through five, I think those should be remanded for further investigation or for the government to actually respond the way that is required to these very specific discovery requests because the issue there is transportation from the Philippines to the United States.

[00:10:29] Speaker 00:
These images were obviously transported, but who actually did the transporting

[00:10:34] Speaker 00:
is an issue, and whoever possessed them is very relevant to who transported them.

[00:10:41] Speaker 00:
So if there's an argument that somebody else transported them, then Mr. Ornelas would be entitled to a new trial on those counts as well.

[00:10:52] Speaker 00:
But I think three through five should await

[00:10:57] Speaker 00:
further proceedings in the district court where the government meets its discovery obligations.

[00:11:02] Speaker 00:
I think counts one through two, excuse me, counts one through two are off the table.

[00:11:06] Speaker 00:
And that's also one other thing.

[00:11:08] Speaker 00:
When judge

[00:11:10] Speaker 00:
Carney completely rejected this.

[00:11:12] Speaker 00:
He rejected a straw man.

[00:11:13] Speaker 00:
He focused on counts one through two, like this evidence would show somebody went to the Philippines and made all of this stuff up.

[00:11:20] Speaker 00:
And that wasn't the argument at all.

[00:11:22] Speaker 00:
The argument is, this stuff is relevant to chain of custody, chain of custody is relevant to possession, and possession is relevant to transportation.

[00:11:31] Speaker 00:
And with that, I would like to reserve the balance of my time.

[00:11:34] Speaker 03:
Thank you, Council.

[00:11:45] Speaker 01:
May it please the court, Ilana Artson on behalf of the United States.

[00:11:49] Speaker 01:
In the prior appeal, the panel ruled that at least some in-camera information met the low standard of materiality under Rule 16.

[00:11:59] Speaker 01:
It ordered disclosure of the in-camera materials and it remanded to provide an opportunity for the defense counsel to try to show that this newly discovered material would have altered the outcome of the trial.

[00:12:12] Speaker 01:
The defendant had that opportunity and the district court did not err in finding that the new material was so minimal.

[00:12:21] Speaker 01:
that the defendant could not make the requisite showing that it would have altered the trial.

[00:12:29] Speaker 01:
Again, before trial, the defense knew that Agent Perez's death was due to suicide.

[00:12:35] Speaker 01:
So the new information in camera material was first AUSA Willett's declaration as to what the government did before trial.

[00:12:47] Speaker 01:
And that was to confer with the agency and her declaration at 60R992 was that Agent Perez never submitted a resignation letter to the agency.

[00:13:03] Speaker 01:
So there was no resignation letter.

[00:13:05] Speaker 01:
There was no exit interview.

[00:13:07] Speaker 01:
The new information was simply that the suicide was due to unspecified work and case-related stress.

[00:13:15] Speaker 01:
So the question before the district court was, does that new fact

[00:13:21] Speaker 01:
suggest that the jury would have seen the entire case in a completely different light.

[00:13:27] Speaker 01:
And the answer to that is clearly no because the agent had a minimal role in the search, there was overwhelming evidence of guilt, and ultimately this had very little probative value because it was based on the idea that this new idea, this new material would provide an opportunity perhaps

[00:13:47] Speaker 01:
to find some other information.

[00:13:51] Speaker 01:
The defense counsel was looking for information that Agent Perez had engaged in some misconduct or had some very serious mental health problems.

[00:14:00] Speaker 01:
That evidence simply doesn't exist.

[00:14:02] Speaker 01:
All we have is this unspecified case-related stress.

[00:14:06] Speaker 01:
So let me talk specifically about counts six and seven.

[00:14:11] Speaker 01:
So, again, the defendant says counts one and two are off the table.

[00:14:15] Speaker 01:
The evidence was overwhelming.

[00:14:16] Speaker 01:
The two victims testified.

[00:14:18] Speaker 01:
The defendant is seen and heard in those videos.

[00:14:21] Speaker 01:
And their testimony was corroborated by the chat logs found in the home, by the passport and airline records, records showing that the defendant had sent money to one of the victims and her aunts.

[00:14:35] Speaker 01:
The expert testimony that these images weren't altered.

[00:14:39] Speaker 01:
Counts six and seven involved a number of other images of child pornography, including images of J. Anne.

[00:14:51] Speaker 01:
In Count 6, there were two images that were found on the same computer in the same folder as the three videos underlying Counts 1 to 5.

[00:15:03] Speaker 01:
It included additional CP of J. Anne model's rear, which is just... I think that's why you focused on Count 7.

[00:15:11] Speaker 01:
And that J. Anne and Junalyn attack Laban, which the... Well, there's a connection between Count 6 and 7, so that's why I want to talk a little bit about Count 6.

[00:15:22] Speaker 01:
So we have great reason to believe that the child pornography in count six is possessed by the same person as count one to five, and that was the defendant.

[00:15:30] Speaker 01:
Now, count seven, again, those images included J. Anne.

[00:15:35] Speaker 01:
There were two images in a folder called J. Anne the Hottie, and those two pictures were on one of these disks.

[00:15:45] Speaker 01:
So again, who's connected to J. Anne the defendant?

[00:15:48] Speaker 01:
As to count six and seven, there were also two other very significant pieces of evidence.

[00:15:54] Speaker 01:
I'm sorry, there's another significant piece of evidence.

[00:15:57] Speaker 01:
First, that the same image of the same victim.

[00:16:00] Speaker 01:
Secondly, the defendant made a post-arrest statement.

[00:16:04] Speaker 01:
And in that statement, he essentially admitted that this was his collection.

[00:16:09] Speaker 01:
That's exhibit 65 that was played at trial.

[00:16:12] Speaker 01:
The transcript of that is not in the excerpts, but I would be happy to submit it to the court.

[00:16:19] Speaker 01:
But during that interview, the defendant acknowledged when the agent asked about all of the videos and images, he said,

[00:16:28] Speaker 01:
You're talking to me, one who saw it, but you should really be going after the people who put this up on the websites.

[00:16:35] Speaker 01:
And later in the interview, when talking about this collection, the defendant said, well, a lot of them are old and should have been thrown away years ago.

[00:16:43] Speaker 01:
So there was really overwhelming evidence tying the defendant, regardless of what room or exactly where these items were found, there was a lot of evidence tying defendant to count six and seven.

[00:16:56] Speaker 01:
Again, the agents who testified, Agent Karami testified about the CDs, Agent Kennedy testified about the computers, and both of them said, I found these in room D, which was defendant's room, and I wrote on the evidence tag where I found it.

[00:17:18] Speaker 01:
That is my handwriting.

[00:17:20] Speaker 01:
And then Agent Karami said,

[00:17:21] Speaker 01:
I took the CDs to Agent Perez, he gave me a bag, and together we sealed it.

[00:17:28] Speaker 01:
So the question in this case is not whether there is some issue about the chain of custody.

[00:17:35] Speaker 01:
Clearly, the jury knew that Agent Perez was dead, and defendants argued that there was a missing link.

[00:17:44] Speaker 01:
He argued, we don't know what happens after Agent Perez.

[00:17:47] Speaker 01:
The question is, what does any of that have to do with Agent Perez and his suicide?

[00:17:53] Speaker 01:
And I submit that the answer is essentially nothing.

[00:17:57] Speaker 01:
Because defendant's entire argument was based on the notion that there is something else there.

[00:18:05] Speaker 01:
There's something in that exit interview.

[00:18:08] Speaker 01:
There's something in that resignation letter.

[00:18:12] Speaker 01:
There's somebody who, you know, knew something about this.

[00:18:16] Speaker 01:
That evidence simply does not exist.

[00:18:19] Speaker 01:
On the evidence that was in the record, because there was overwhelming evidence of guilt, the agent had a minimal role and this new evidence was a very low probative value.

[00:18:29] Speaker 01:
The district court did not err.

[00:18:31] Speaker 01:
With respect to discovery, Agent Forrest, you are correct.

[00:18:36] Speaker 01:
There is no case law that requires in every case

[00:18:42] Speaker 01:
the government to provide a declaration as to what it did the district court did not abuse its broad discretion in relying on the government's representation instead what Lucas said is that mere speculation that Brady material exists is not enough and to challenge the government's representation the defendant has to make a concrete demonstration that there is some

[00:19:06] Speaker 01:
Favorable evidence withheld there was no such demonstration here and therefore the district court did not abuse its discretion It's the district does the court have any further questions Doesn't appear that we do thank you if the court has no further questions And we would submit that this saga has gone on for close to 20 years the court should affirm Thank You counsel

[00:19:36] Speaker 00:
I'd just like to point out there's, so far, the government is right.

[00:19:44] Speaker 00:
There's nothing more than a suicide for stress, work-related stress, related to this case.

[00:19:55] Speaker 00:
I submit that is a lot.

[00:19:57] Speaker 00:
And there is specific non-speculative evidence that this gentleman had an exit interview

[00:20:02] Speaker 00:
on I believe it was October 13th and actually submitted a resignation letter, so met with people.

[00:20:10] Speaker 00:
There has been an insufficient response to find that evidence.

[00:20:14] Speaker 00:
And in terms of Agent Kurami, she did not recall meeting with Perez.

[00:20:21] Speaker 00:
She recalled she found this stuff.

[00:20:24] Speaker 00:
She put it in a bag.

[00:20:25] Speaker 00:
She had no specific recollection of ever meeting with Perez.

[00:20:30] Speaker 00:
And for Agent Perez,

[00:20:33] Speaker 00:
They continually refer to it as a ministerial or a minimum role, but it is a really, really important role.

[00:20:40] Speaker 00:
He held on to all the evidence from this massive search for some indeterminate period of time.

[00:20:46] Speaker 00:
And again, that raises, I submit, issues with chain of custody.

[00:20:53] Speaker 00:
But with that, I will submit, and unless the court has any questions.

[00:20:57] Speaker 03:
I appreciate your argument.

[00:20:58] Speaker 03:
Thank you very much, Council of both sides.

[00:21:00] Speaker 03:
The matter is submitted.

[00:21:01] Speaker 03:
That concludes our argument calendar this morning.

[00:21:05] Speaker 03:
We'll be in recess until 9 a.m.

[00:21:07] Speaker 03:
tomorrow.