[00:00:00] Speaker 03:
My name is Celia Hooman and I represent Mr. Vega Perez.

[00:00:03] Speaker 03:
I'm going to try to reserve two minutes for rebuttal in this case.

[00:00:06] Speaker 03:
Mr. Vega Perez has identified three bases for this case to be overturned.

[00:00:10] Speaker 03:
Two of them deal with improper statements made by the prosecution in both the opening and in the closing.

[00:00:15] Speaker 03:
The one in the closing was formed the basis of a motion for

[00:00:18] Speaker 03:
a new trial.

[00:00:19] Speaker 03:
There was also error in the instructions.

[00:00:22] Speaker 03:
With regard to the opening and closing statements, in the opening each of these are independent but they're related in some ways because in each of them the prosecutor made a strategic choice.

[00:00:35] Speaker 03:
In the opening she said, now the story now, nine months later, may be different.

[00:00:40] Speaker 03:
This is before any statement was made by the defense counsel to

[00:00:45] Speaker 03:
the jury because this was the government's opening statement.

[00:00:48] Speaker 02:
The district court multiple times instructed the jury that opening statements are not evidence, right?

[00:00:54] Speaker 03:
That's correct.

[00:00:55] Speaker 03:
That's correct.

[00:00:55] Speaker 03:
But this court, I think it has recognized that in some cases, the court needs to go beyond the generic instruction that the statements by counsel are not.

[00:01:03] Speaker 04:
What exact category of constitutional problem do you see?

[00:01:07] Speaker 03:
I'm sorry.

[00:01:07] Speaker 04:
What exact constitutional issue do you think this raises?

[00:01:12] Speaker 03:
I think it raises the presumption of innocence, it raises the right to hold the government to the burden of proof, and it offends the right to remain silent, because it put Mr. Vega-Perez in a position where he had to address what had already been said.

[00:01:26] Speaker 03:
Why did he?

[00:01:27] Speaker 04:
First of all, he said it was May.

[00:01:29] Speaker 04:
And second of all, it just seemed a fairly offhand comment about the fact that there were

[00:01:40] Speaker 04:
I mean, he already knew that they were going to put on a defense, so it wasn't as if he was making it up.

[00:01:45] Speaker 04:
And he didn't say the defendant's story.

[00:01:48] Speaker 04:
He said the story.

[00:01:48] Speaker 04:
He didn't say the defendant.

[00:01:50] Speaker 04:
The defendant may say otherwise.

[00:01:52] Speaker 04:
The story may be otherwise.

[00:01:54] Speaker 04:
So why does that put any burden on the defendant?

[00:01:57] Speaker 03:
Well, there's a few things I would first note that the prosecutor in the brief at page 24

[00:02:04] Speaker 03:
Makes it clear this wasn't an inadvertent statement.

[00:02:06] Speaker 03:
This was a deliberate strategic choice.

[00:02:08] Speaker 03:
The prosecutor in the brief says this was deliberately vague.

[00:02:11] Speaker 03:
So getting to the question of vagueness in this case.

[00:02:16] Speaker 03:
deliberately vague.

[00:02:17] Speaker 03:
So there was thought about this, and I'll get back to that, but going to your point, the statement is not that the defendant will necessarily testify, but that the story that is going to be told by the defense, the defense never has to tell a story.

[00:02:33] Speaker 03:
The government has to prove a case.

[00:02:35] Speaker 03:
So it put before the jury.

[00:02:37] Speaker 04:
And maybe they will and maybe they won't.

[00:02:38] Speaker 04:
I just think this is really weak.

[00:02:41] Speaker 03:
Well, I would agree that this isn't the strongest argument, but I think it is a clear violation and I think this court should be concerned about this because what happened in this case is in a case where the evidence in this case was weak on the issue of knowledge, which was the critical issue for the jury to decide because there was no question.

[00:02:56] Speaker 02:
Weak on the issue of knowledge?

[00:02:58] Speaker 02:
Didn't the defendant testify he knew?

[00:03:00] Speaker 03:
He did not.

[00:03:01] Speaker 03:
I believe what he testified was that he did not know.

[00:03:04] Speaker 03:
What the government presented was the statement that was presented from the overnight interrogation where he said that he knew.

[00:03:14] Speaker 03:
Okay, I'm sorry.

[00:03:14] Speaker 04:
He said that he knew that they put stuff in the car.

[00:03:16] Speaker 04:
They took his car and they put stuff in it.

[00:03:19] Speaker 04:
I'm sorry?

[00:03:19] Speaker 04:
They took his car and they put stuff in it somewhere he couldn't see it.

[00:03:23] Speaker 04:
And he knew that that was going on.

[00:03:25] Speaker 02:
Right.

[00:03:25] Speaker 02:
Yes.

[00:03:25] Speaker 02:
So maybe, I don't know, maybe I'm looking at the wrong thing here, but I'm looking

[00:03:30] Speaker 02:
Page 455, I think of the ER, but it's page 394 of some transcript.

[00:03:38] Speaker 02:
And maybe I'm reading it wrong.

[00:03:40] Speaker 02:
On April 2, 2022, when you entered the port of entry, did you know that you had methamphetamine in the vehicle you were driving?

[00:03:47] Speaker 02:
No.

[00:03:48] Speaker 02:
So he denied having the meth, right?

[00:03:51] Speaker 03:
He denied knowing that there were drugs in the car.

[00:03:53] Speaker 02:
Right.

[00:03:53] Speaker 02:
Even though the prior things were both ways.

[00:03:58] Speaker 03:
Correct.

[00:03:59] Speaker 03:
The statement that he gave during the overnight interrogation contradicted the testimony that he gave on the stand.

[00:04:06] Speaker 03:
But what we have here is the prosecution putting the defendant in the position where he has to get on the witness stand and to address this or to at least present evidence, which he has no constitutional obligation to present.

[00:04:18] Speaker 03:
And the prosecutor, as I said, this wasn't a slip of the tongue.

[00:04:22] Speaker 03:
They not only set it in opening, they returned to the same language during their cross-examination of the defendant.

[00:04:27] Speaker 03:
at ER 464, the exact kind of, they did a recall back.

[00:04:35] Speaker 03:
They did the exact same thing.

[00:04:37] Speaker 03:
They talked about that it had been nine months, that his statement was different.

[00:04:40] Speaker 03:
So it's a very persuasive proposition in a case for the prosecution to do that.

[00:04:45] Speaker 03:
But they then returned to it again in closing, and they went even beyond it in closing.

[00:04:50] Speaker 03:
What they did in closing was they didn't just say that the story was untrue.

[00:04:55] Speaker 03:
They said, I believe

[00:04:57] Speaker 03:
I may say that this is not true.

[00:04:58] Speaker 03:
I'm sorry?

[00:05:01] Speaker 04:
I would say that it's not believable.

[00:05:04] Speaker 03:
That's correct.

[00:05:04] Speaker 04:
I would say that it's not believable.

[00:05:06] Speaker 04:
I would say it's sort of a throat clearing thing.

[00:05:09] Speaker 04:
It doesn't have any meaning.

[00:05:11] Speaker 04:
It doesn't mean I believe it.

[00:05:14] Speaker 04:
It just means it's just a way of introducing a sense.

[00:05:19] Speaker 03:
This court has said that when the government gets up to make an argument and they say something affirmatively on behalf of the government, it's more than just a throwaway.

[00:05:26] Speaker 04:
And we know it's not a throwaway here because... All he said was that I will say this, and then he said it.

[00:05:30] Speaker 04:
And all he said was that it was believable.

[00:05:32] Speaker 04:
It's not believable, not that he didn't believe it.

[00:05:33] Speaker 04:
It's no different than saying... I'm sorry, Your Honor.

[00:05:35] Speaker 04:
Suppose he had just said, what, the story is not believable.

[00:05:39] Speaker 04:
Would that be okay?

[00:05:42] Speaker 04:
Yes.

[00:05:43] Speaker 04:
All right.

[00:05:43] Speaker 04:
And he said, I'm going to... And he said,

[00:05:48] Speaker 04:
I'm telling you that the story is not believable.

[00:05:51] Speaker 04:
That's not okay.

[00:05:53] Speaker 03:
That's exactly right.

[00:05:54] Speaker 03:
And this court has recognized that when the government says, essentially, I think this isn't believable, they're putting the power of the United States.

[00:05:59] Speaker 03:
I didn't say I think this isn't believable.

[00:06:02] Speaker 03:
But there is no functional difference between I would say because you had to have thought it and I think.

[00:06:09] Speaker 03:
It's the same argument, Your Honor, but be that as it may.

[00:06:12] Speaker 02:
So, counsel, am I correct?

[00:06:15] Speaker 02:
that the only relief you sought from the district court is a mistrial.

[00:06:19] Speaker 02:
You did not seek a curative instruction or that it be struck?

[00:06:24] Speaker 03:
I was, first of all, I was not trial counsel.

[00:06:26] Speaker 03:
Okay.

[00:06:26] Speaker 03:
But trial counsel in this case did not seek any further redress for this statement.

[00:06:34] Speaker 03:
But that doesn't, that just means that it's subject to plain error before this court.

[00:06:38] Speaker 03:
And we think that when the government puts the power of the United States behind itself and tells the jury what it thinks the evidence shows,

[00:06:45] Speaker 03:
that there is a problem and that this court should be concerned about.

[00:06:48] Speaker 03:
And it's because of that and because we think it meets the plain error standard, we ask this court to reverse on that issue.

[00:06:54] Speaker 00:
Even if the statement might have been, you know, slightly inappropriate, doesn't the fact that the defendant had indicated the intent to raise a duress defense allow the prosecution some additional leeway to get into that question in opening statement?

[00:07:15] Speaker 03:
Because the defendant always can wait and see what the government's case is and decide at that point it's not worth putting on a case.

[00:07:23] Speaker 03:
You know, excuse me, Your Honor.

[00:07:26] Speaker 03:
The defendant always has that option.

[00:07:27] Speaker 03:
Even if they've given notice of a defense, they don't have to put on any evidence except for in this case where there was some compulsion on them by the government's actions to put on a case.

[00:07:37] Speaker 03:
And it's because of that that this is problematic.

[00:07:40] Speaker 03:
It's appropriate, as the government said in their brief, for them to anticipate what's going to happen.

[00:07:44] Speaker 03:
It's not appropriate to argue it before the defendant has had a chance to put on any information.

[00:07:49] Speaker 03:
Turning to the jury question.

[00:07:52] Speaker 02:
So let me just ask you a question on that, counsel.

[00:07:54] Speaker 02:
The part that I read, on April 2, 2022, when you entered the port of entry, did you know that you had methamphetamine in the vehicle you were driving?

[00:08:03] Speaker 02:
No.

[00:08:04] Speaker 02:
Doesn't that alone justify a Juul instruction given the facts here?

[00:08:07] Speaker 03:
Absolutely not, Your Honor.

[00:08:09] Speaker 02:
The fact that the defendant testified he didn't know and the other facts we have, including that men loaded things in his car, that doesn't justify a deliberate indifference in Juul instruction?

[00:08:24] Speaker 03:
I don't think so because this court in the Heredia decision has recognized that a decision that is influenced by coercion is not one that is deliberate.

[00:08:34] Speaker 03:
And I would suggest to the court, even in the Ramos-Antondo case, where the court articulated there's two parts.

[00:08:41] Speaker 04:
But if the jury believes the coercion, then the instruction was basically irrelevant.

[00:08:49] Speaker 04:
The question isn't... If he was in fact coerced, whether he knew or he didn't know, it would still prevail.

[00:08:59] Speaker 04:
The question wasn't whether he knew and

[00:09:01] Speaker 04:
because of the coercions, I understood this to be an alternative argument.

[00:09:06] Speaker 04:
That is, if they don't believe the coercion.

[00:09:09] Speaker 03:
I think the question of whether to give an instruction is whether the evidence is legally, there's evidence that would support the instruction.

[00:09:18] Speaker 03:
And where there's evidence of coercion, there's not evidence of deliberation.

[00:09:22] Speaker 02:
That's if they believe it.

[00:09:23] Speaker 03:
They don't have to believe it, but not for the giving of the instruction.

[00:09:26] Speaker 03:
That's for the court.

[00:09:27] Speaker 03:
That's that whether they believe it is whether they are sorry.

[00:09:30] Speaker 02:
I don't understand your argument counsel.

[00:09:32] Speaker 02:
I mean, if he testified, he didn't know.

[00:09:34] Speaker 02:
And there is evidence to suggest that even if he didn't know he was deliberately indifferent, he was deliberately ignorant.

[00:09:43] Speaker 02:
I don't understand what the problem could be with the jewel instruction, even if it hadn't been jointly proposed.

[00:09:49] Speaker 03:
Well, I think that the concern is, and I'm running out of time, but I would just say I think the concern is that I think the court is thinking about what the jury does with the instruction.

[00:09:58] Speaker 03:
The question here is in the first instance, whether there is a legal basis to give the jury instruction.

[00:10:02] Speaker 03:
And this court in Heredia said was when there's evidence of coercion.

[00:10:05] Speaker 04:
I understood you were making a different argument about this instruction.

[00:10:10] Speaker 04:
The coercion point, it seems to me, doesn't work at all because it's completely dependent on whether it's believed or not.

[00:10:16] Speaker 04:
So the jury, the judge could certainly give an instruction on the assumption that it isn't believed.

[00:10:22] Speaker 04:
So the question is, if it isn't believed, is it an appropriate, if the coercion point is not believed, is this an appropriate instruction?

[00:10:32] Speaker 04:
And your argument I thought was earlier was that there had to be some affirmative showing, affirmative action taken to not discover it.

[00:10:44] Speaker 04:
That's what I understood your argument to be, that it isn't simply enough that he

[00:10:47] Speaker 04:
knew it and didn't do anything.

[00:10:48] Speaker 04:
He has to affirmatively do something to not do it.

[00:10:51] Speaker 04:
I don't understand what that means, but that's what I thought your argument was.

[00:10:54] Speaker 03:
I was making both arguments, Your Honor.

[00:10:56] Speaker 03:
I'm sorry if I wasn't clear, because I think there are two bases here that this was a problem to give.

[00:11:01] Speaker 03:
And I think one is that there is absolutely no evidence of deliberate actions to avoid knowing that there's drugs in the car.

[00:11:06] Speaker 04:
And what would that mean?

[00:11:07] Speaker 04:
I mean, if you don't know and if you know that, I mean, this is an unusual case because usually they say they didn't know there was anything in the car.

[00:11:15] Speaker 04:
He knew there was something in the car.

[00:11:17] Speaker 04:
And he knew it was put, who put it there, which was these people that he knew had been drug dealers at some earlier point.

[00:11:24] Speaker 04:
And he knows that they put it somewhere where he couldn't see it.

[00:11:33] Speaker 04:
So what would be a plausible affirmative step he could take?

[00:11:38] Speaker 04:
He could stand there and look at the car or what could he do to not look at it?

[00:11:42] Speaker 03:
Well, I think there's a lot of cases where the court has analyzed this step.

[00:11:46] Speaker 03:
And I think the Ramos-Atono case, the court articulates quite a long series of actions the defendant took that were indicative of deliberate avoidance of knowing what was going on.

[00:11:58] Speaker 04:
What about driving the car across the border when he knew that the stuff had been put in it by a group of shady people?

[00:12:05] Speaker 03:
That goes to knowledge.

[00:12:06] Speaker 03:
That goes to direct knowledge that there's drugs in there.

[00:12:09] Speaker 04:
Well, it also goes to not stopping the car and looking at it.

[00:12:11] Speaker 03:
Well, and I think, again, the Heredia decision would indicate that it's error for the court to give a dual instruction in the evidence, where there is evidence of coercion.

[00:12:21] Speaker 03:
And I'm out of town sometimes.

[00:12:22] Speaker 02:
We're going to give you some time.

[00:12:23] Speaker 02:
Thank you.

[00:12:24] Speaker 02:
For a rebuttal.

[00:12:25] Speaker 02:
Thank you.

[00:12:44] Speaker 01:
May it please the court, my name is Vanessa Kubota and I represent the United States.

[00:12:50] Speaker 01:
Excuse me, I'm nervous.

[00:12:53] Speaker 01:
So, it looks like Your Honours have voiced many of the arguments I was prepared to make today, but there is one matter that has not been aired yet.

[00:13:04] Speaker 01:
And with Your Honours' permission, I'd like to discuss waiver, if that's

[00:13:08] Speaker 01:
something that might be a consideration, if not.

[00:13:11] Speaker 02:
You can argue it in any way you deem appropriate, counsel.

[00:13:14] Speaker 01:
Thank you, your honor.

[00:13:15] Speaker 01:
So as far as the waiver question goes, the case that counsel cited in her 28-J notice, Lindsay, seems to imply that Perez holds that

[00:13:31] Speaker 01:
a mere avowal by a counsel on a stipulation absent any indication in the record of further relinquishment of a right is insufficient.

[00:13:41] Speaker 01:
However, the government would argue that in this case we have more than what was present in Lindsay.

[00:13:49] Speaker 01:
And even though we firmly believe that we win on the merits anyway, for the sake of the legal question,

[00:13:56] Speaker 01:
as to whether waivers should apply when a party stipulates knowingly.

[00:14:01] Speaker 01:
The government's position is that when an individual, when a party signs or avows in a jury stipulation, that they are stipulating to an instruction and the law is clear.

[00:14:15] Speaker 01:
And then the district court in this case gave the parties ample opportunities to review the totality of those jury instructions in the record, asked the parties

[00:14:25] Speaker 01:
if they had any remaining qualms or objections, aired some of those remaining disputed issues and then went further and actually printed out the final instructions before a break and asked the parties to look at them one more time.

[00:14:39] Speaker 01:
That is that additional step that is... Council, we don't have to though reach that question.

[00:14:45] Speaker 02:
Okay.

[00:14:46] Speaker 02:
No, no, no.

[00:14:47] Speaker 02:
It's a question we could find even assuming there wasn't waiver that the evidence justified the instruction.

[00:14:54] Speaker 01:
Yes, Your Honor.

[00:14:54] Speaker 01:
That's absolutely true.

[00:14:56] Speaker 01:
And so going straight into that then, Your Honors, as Your Honors have mentioned, Alvarado, for example, even in the case where there was only an actual knowledge presented to the jury, it was still harmless because the evidence of actual knowledge is so strong.

[00:15:16] Speaker 01:
So that goes to counsel's argument that, well, actual knowledge was so clear that there was no need for a deliberate ignorance instruction, or it was harmful.

[00:15:24] Speaker 01:
But that would then sort of go into the harmless error, or in this case, no plain error, if we aren't waiving that argument.

[00:15:32] Speaker 01:
And as far as just to touch briefly on the other issues, Your Honors, as Judge Berzon noted, that the anatomy of the sentence itself was so vague and sort of nondescriptive, the use of the conditional word may, that it really didn't

[00:15:52] Speaker 01:
reach the level of harm that counsel is avowing.

[00:15:57] Speaker 01:
And as far as whether or not the defendant could have, Mr. Perez, could have decided at the 11th hour to abandon his notice duress defense, still even then the statement could have been

[00:16:11] Speaker 01:
just a floating throwaway statement left in the air, and it could have been cured by a curative instruction in that case.

[00:16:18] Speaker 01:
But even so, it didn't force Mr. Perez to take the stand.

[00:16:21] Speaker 01:
Mr. Perez compelled himself to take the stand because in order to support his duress defense, whatever was on the record before, whatever was on the prosecution's case in chief, there was nothing there that could have supported Mr. Perez's affirmative burden

[00:16:38] Speaker 01:
to advance that duress defense.

[00:16:40] Speaker 01:
So if Mr. Perez wanted to support that defense, he would have had to have testified anyway.

[00:16:46] Speaker 01:
There was no compulsion to testify in this case.

[00:16:50] Speaker 01:
I see there are no questions.

[00:16:51] Speaker 01:
So if there's nothing further, I can cede the remainder of my time.

[00:16:57] Speaker 02:
All right.

[00:16:57] Speaker 02:
Thank you, counsel.

[00:16:58] Speaker 01:
Thank you for your patience.

[00:17:00] Speaker 02:
We'll give you two minutes for rebuttal.

[00:17:01] Speaker 03:
Thank you, your honor.

[00:17:02] Speaker 03:
I just have two points I'd like to make.

[00:17:05] Speaker 03:
I think counsel suggested that I

[00:17:07] Speaker 03:
agreed that the evidence of knowledge was strong.

[00:17:09] Speaker 03:
I did not.

[00:17:09] Speaker 03:
What I said was that the evidence of knowledge came from this one statement that was taken by the defendant.

[00:17:15] Speaker 03:
And as we repeatedly argued, that wasn't strong evidence, but it was evidence of knowledge in this case.

[00:17:22] Speaker 03:
And the statement that the prosecutor made in opening that the

[00:17:27] Speaker 03:
The word may addresses not whether it would be different, excuse me, it addressed whether the statement would be different.

[00:17:35] Speaker 03:
So it may be different, but that he would put on a story, that he would tell a story.

[00:17:40] Speaker 03:
So the conditional doesn't say that they won't, he might tell a story, it's that he's going to tell a story and it may be different.

[00:17:46] Speaker 03:
And I think that's important here in assessing whether this statement, and again, this was a deliberate strategy by the government.

[00:17:53] Speaker 03:
It wasn't an offhand comment, and it was repeated.

[00:17:56] Speaker 03:
They've used the same language about the nine months, the story.

[00:18:01] Speaker 03:
I mean, the repetition was a strategic and a litigation strategy in this case.

[00:18:07] Speaker 03:
Because of that, we asked this court to reverse and remand Mr. Vega-Perez's conviction.

[00:18:12] Speaker 02:
Thank you.

[00:18:13] Speaker 02:
We thank counsel for their arguments.

[00:18:14] Speaker 02:
The case just argued is submitted and we will take a 10 minute recess.