[00:00:14] Speaker 02:
Your honor, as it may please the court, Jamie Elizabeth Schmidt, Federal Defender, is on behalf of Mr. Ruiz.

[00:00:19] Speaker 02:
I would like to try to reserve two minutes of my time for rebuttal, and I'll try to keep my eye on the clock.

[00:00:25] Speaker 02:
Mr. Ruiz's conviction must be reversed for two reasons.

[00:00:29] Speaker 02:
First, the agent's Miranda advisor was inadequate, and second, Mr. Ruiz's Miranda waiver was not knowing and intelligent.

[00:00:56] Speaker 02:
will decide if he returns you or not.

[00:00:59] Speaker 02:
And that is why you have these rights.

[00:01:01] Speaker 02:
And then he ends the advisor explaining that he ends the advisor, the administrative advisor saying that Mr. Ruiz, his statements would be used against him in administrative proceedings.

[00:01:35] Speaker 02:
he gets returned or not and that's why he has those rights.

[00:02:09] Speaker 02:
But then I would just, it's the muddying of both of them, though, because on, yes, on one hand, he does say that, but then on the other hand, he incorrectly explains what a criminal judge does.

[00:02:22] Speaker 02:
And it's exactly that muddying of saying the right thing, but then saying the wrong thing that leaves someone like Mr. Ruiz confused and unable to determine if he wants his right to counsel because he believes, as he said in his declaration, he believed that he was going to be seen in immigration

[00:02:42] Speaker 02:
to be put in jail no matter what.

[00:02:44] Speaker 02:
I think, and also to answer your question, Your Honor, Mr. Ruiz also noted in his declaration that he didn't understand the word prosecute.

[00:02:53] Speaker 02:
So saying that you're being prosecuted for a federal crime didn't really mean much to him when he doesn't understand what that word means.

[00:03:01] Speaker 03:
Did the agent say crime or criminal multiple times as well in the advisal?

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a criminal judge would do.

[00:03:13] Speaker 02:
And I would just note, again, Mr. Ruiz's advisor, Mr. Ruiz's declaration where he said that he did not understand he was being criminally prosecuted.

[00:03:22] Speaker 02:
And that's also clear throughout the back and forth in the advisor because he keeps saying, well, I don't want an attorney.

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I want to go home.

[00:03:29] Speaker 02:
So he's looking at this through the perspective of immigration court and immigration judge.

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And I know I'm kind of talking about Mr. Ruiz's perspective, and we're kind of talking about the adequacy of the waiver.

[00:03:42] Speaker 02:
But I do think those things blend together because in San Juan Cruz, even though it was only a question of were the Miranda warnings adequate, this court also looked at what happened from the perspective of San Juan Cruz and said that from San Juan's perspective, it was entirely unclear the nature of his rights.

[00:04:01] Speaker 02:
That's what we have here from Mr. Ruiz's perspective.

[00:04:09] Speaker 02:
used against him in criminal court at all or just administratively and it was also unclear to him what his his right to counsel because the agent placed that in a Miranda the agent placed the right to counsel in an immigration context so if he understood that he was going to be charged criminally and was going to be put in jail and that the judge had no say on whether or not he returned Mr. Rees said in his declaration he would have asked for counsel but again he didn't understand the word prosecution

[00:04:41] Speaker 03:
I have no idea what was going on.

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further explanation, then he would say eventually, like, yes, I do understand.

[00:05:16] Speaker 03:
So given the standard of review, what would you point to to say that the magistrate judge is finding here is clear error?

[00:05:27] Speaker 02:
Thank you, Your Honor.

[00:05:28] Speaker 02:
So I would point to a couple things that would show clear error here.

[00:05:33] Speaker 02:
First of all, the magistrate judge didn't even really go through a knowing and intelligent analysis.

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She solely focused on voluntariness, indicia of voluntariness,

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but she didn't apply the standard that we have that, you know, did Mr. Ruiz, was he aware of the rights that he abandoned and was he aware of the consequences of abandoning those rights?

[00:05:56] Speaker 02:
She never went through that analysis at all.

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She didn't even consider his declaration.

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And Your Honor, she also did not apply a totality of the circumstances, didn't talk about his background, his history, his characteristics.

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So the record,

[00:06:12] Speaker 02:
I think it's easily clear error here, because Your Honor, she didn't even engage with the law.

[00:06:18] Speaker 02:
She kind of booted the question.

[00:06:20] Speaker 01:
Let me ask you a slightly different question, which is, assuming we agree with you that this rises to the level of clear error on the part of the district court, why isn't the admission of those post-arrest statements simply harmless, given the other circumstantial evidence and his pre-arrest confession?

[00:06:44] Speaker 02:
Your Honor, it rises to the level of harmlessness because for every element of the offense, the magistrate judge relied on his post-arrest statements.

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And to be very clear, his post-arrest statements are in some ways very different than his field statements because post-arrest is the only time he ever says, I came into the United States by jumping over the border fence.

[00:07:08] Speaker 02:
That's really important because that answers the element

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intent to enter free from official restraint.

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Now it's the government's burden to show that the verdict is surely unattributable to the error and when the magistrate judge solely relies

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intent and yes she does mention circumstantial evidence but that is just used to corroborate the post-arrest statement.

[00:07:38] Speaker 02:
So I think the government cannot prove that Mr. Ruiz's statements were harmless beyond a reasonable doubt just because truly every element she relied on those statements and that was the only way that Mr. Ruiz, the only time Mr. Ruiz talked about his motive entry into the United States which under Corrales Vasquez that's important because we have to know if someone is

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at the port of entry.

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I might have flip-flopped those, but I think that's right.

[00:08:13] Speaker 03:
Can I just ask you one factual question?

[00:08:15] Speaker 03:
Of course.

[00:08:16] Speaker 03:
My understanding is that the video, the interrogation where this morning was given and waived was videotaped, and I didn't see the video in the record before us, but I understand the magistrate judge did watch the video, is that right?

[00:08:32] Speaker 03:
That's my understanding from the record, Your Honor.

[00:08:36] Speaker 02:
That's my understanding from the record, yes.

[00:08:39] Speaker 02:
Unless your honors have any more questions, I would submit and use the rest of my time for rebuttal.

[00:08:45] Speaker 02:
We took you a little bit past your time.

[00:08:46] Speaker 02:
We'll give you two minutes.

[00:08:47] Speaker 02:
Okay, thank you very much.

[00:08:57] Speaker 00:
Morning, your honors.

[00:08:58] Speaker 00:
May it please the court, Amy Wong for the United States.

[00:09:02] Speaker 00:
Miranda does not require a talismanic incantation, but whereas here the agent

[00:09:23] Speaker 01:
It's the test that the agent, and I was talking about the intelligent knowing waiver issue right now.

[00:10:05] Speaker 01:
I don't read the record in the same way that he unequivocally said yes.

[00:10:10] Speaker 01:
In fact, there are many places where the agent says, did you understand your rights?

[00:10:18] Speaker 01:
He says, more or less.

[00:10:19] Speaker 01:
The agent says, what does that mean?

[00:10:21] Speaker 01:
It can't be more or less.

[00:10:23] Speaker 01:
It has to be yes or no.

[00:10:25] Speaker 01:
And then there's some back and forth where Mr. Ruiz Rivera again seems confused.

[00:10:34] Speaker 01:
repeated himself multiple times.

[00:10:37] Speaker 00:
So I wouldn't say the repetition of the rights is the critical factor here, but rather the totality of the circumstances and Mr. Ruiz's responses to when the agent says, are you sure you understand?

[00:10:47] Speaker 00:
Do you understand?

[00:10:49] Speaker 00:
And the agent very patiently and painstakingly made sure that he ended up with an unequivocal yes each time.

[00:10:56] Speaker 00:
The repeat, or I guess the second reading of

[00:11:33] Speaker 00:
To the extent this court does find any error, we believe it would be harmless.

[00:12:13] Speaker 00:
Teresa Barrett did not have permission to enter the United States.

[00:12:17] Speaker 01:
Can you point us to where in the record the government used the pre-arrest statements to satisfy the various elements of offense, as I think your friend on the other side said, that if you look at the record, only the post-arrest statements were used to satisfy each individual element.

[00:12:36] Speaker 01:
So I'd like to be able to discern whether or not that's accurate.

[00:12:40] Speaker 00:
I believe

[00:12:43] Speaker 00:
Pre-arrest statements were starting with the arresting agent at around ER 49.

[00:12:52] Speaker 00:
The arresting agent testified that he found Ruiz Rivera laying next to a shed in booties and then testified that he conducted a field immigration inspection.

[00:13:03] Speaker 01:
And that's the point where Ruiz Rivera admitted that he's... So you're really talking about the circumstantial evidence at this point, not necessarily reliance on the pre-arrest statement.

[00:13:13] Speaker 00:
and also Ruiz Rivera's statements that he's a Mexican citizen without permission to enter the United States.

[00:13:19] Speaker 03:
But that, I mean, that by itself doesn't get you that he entered Abbekheim in place other than as designated by immigration officers.

[00:13:28] Speaker 03:
For that, you need to rely on the circumstantial evidence of where he was found and the footwear and so forth.

[00:13:35] Speaker 03:
Is that right?

[00:13:36] Speaker 00:
Correct, Your Honor.

[00:13:37] Speaker 00:
As well as there was testimony that a scope operator had seen someone climb over the fence in the area near where Mr. Ruiz Rivera was found, and that's what led to the arresting agent responding to that area and finding Ruiz Rivera.

[00:13:51] Speaker 01:
Can you point us to where on the record that evidence is?

[00:13:54] Speaker 00:
The scope operator is at ER 4647.

[00:14:05] Speaker 00:
And so, uh,

[00:14:07] Speaker 00:
based on the totality of the circumstances where we were very knowingly and voluntarily

[00:14:45] Speaker 01:
rely pretty significantly on the sort of written circling or signature and so if he doesn't know how to read how is it that his sort of circling of the page which in fact took quite a bit of explanation by the agent since he didn't understand how to even circle the page.

[00:15:06] Speaker 01:
I have a seven-year-old and you know if I ask myself

[00:15:17] Speaker 01:
why the mere act of making that written indication on the sheet is sufficient for purposes of the magistrate's holding.

[00:15:48] Speaker 00:
believes Rivera affirmatively circled yes, that he understood he agreed to waive.

[00:15:54] Speaker 01:
And so do you not think that it was appropriate or do you not think that the magistrate judge should have considered the fact that he doesn't know how to read for the purposes of a written waiver?

[00:16:07] Speaker 00:
I think generally that is a consideration that could be a consideration, but here there's nothing on the record that

[00:16:13] Speaker 03:
shows that he was misadvised based on the agent's reading of the waiver to him.

[00:17:15] Speaker 00:
north of the border fence and 25 miles away from the nearest port of entry with Ruiz Rivera in the circumstances of his arrest laying there in the brush at 10 30 p.m.

[00:17:24] Speaker 00:
wearing booties you know it's all the totality of the circumstance of his arrest that showed that he crossed over the fence in in in the area where he was found and so if the Corps has no further questions

[00:17:54] Speaker 02:
Thank you, Your Honors.

[00:17:55] Speaker 02:
Your Honors, I want to make a couple points.

[00:17:57] Speaker 02:
So first, the judge didn't rely on the testimony of the scope operator when coming to her verdict.

[00:18:04] Speaker 02:
Specifically on page ER 148 is when she goes through her analysis of each element and not once does she mention the scope operator.

[00:18:13] Speaker 02:
So I think we're starting to talk about this in terms of, well, was there enough evidence otherwise?

[00:18:19] Speaker 02:
And that's not the question.

[00:18:33] Speaker 02:
on ER 148, just for the element, specific intent to enter a time and place other than is designated.

[00:18:40] Speaker 02:
She states the defendant admitted in his post or a statement that he entered by climbing over the border fence.

[00:18:46] Speaker 02:
So I think the scope conversation we're having is a right hearing.

[00:18:51] Speaker 02:
Additionally, in terms of the knowing and involuntary waiver, sorry, knowing and intelligent waiver, I always do that, we just look at the back and forth in the record and, you know,

[00:19:00] Speaker 02:
The agent asks, do you understand you have the right to silence?

[00:19:03] Speaker 02:
Mr. Ruiz says, yes, I'm silenced.

[00:19:06] Speaker 02:
The agent says, are you sure you understand?

[00:19:09] Speaker 02:
Mr. Ruiz says, what you are saying, I mean, saying like that, clarifying for me that some question I don't want to answer and all of something like that.

[00:19:18] Speaker 02:
And this is someone who does not understand their rights and he cannot repeat them back.

[00:19:24] Speaker 02:
So I just think it's not fair to say that he's making these unequivocal yes statements when the record does not show that.

[00:19:30] Speaker 02:
Thank you, Your Honors.