[00:00:03] Speaker 01: Good morning, Your Honor. [00:00:04] Speaker 01: May it please the court? [00:00:06] Speaker 01: Good morning, Judge Gold. [00:00:09] Speaker 01: Chief Varroa, on behalf of Mr. Silva, I would like to reserve three minutes for rebuttal, please. [00:00:13] Speaker 01: My client's appeal presents two sets of discrete issues. [00:00:19] Speaker 01: Issues one and two deal with the alienation of one of the individuals found in his car. [00:00:25] Speaker 02: Would you kind of go over that again? [00:00:28] Speaker 02: Issues one and two, you have to speak right in the microphone. [00:00:30] Speaker 01: I'm sorry. [00:00:32] Speaker 01: Is this better? [00:00:33] Speaker 01: Okay. [00:00:35] Speaker 01: So the first two issues deal with the alienage of Mr. Tapia Martinez. [00:00:39] Speaker 01: As to those issues, I have nothing to add beyond what's in the brief. [00:00:44] Speaker 01: I'm happy to answer the question if the panel has any. [00:00:47] Speaker 01: But my plan was to focus on issue number three, wrongful admission of expert testimony of unmodus operandi of alien smuggling operations. [00:01:00] Speaker 01: Okay. [00:01:01] Speaker 01: On that issue, you know, the issue has been thoroughly briefed, so what I wanted to do was focus on what I thought were three most important areas to kind of to bring home. [00:01:14] Speaker 01: One, this is a case about a legal error, not a challenge to a discretionary call made under a correct legal standard. [00:01:26] Speaker 01: Judge Sabra's ruling in this case [00:01:30] Speaker 01: is at pages 4, ER 583 to 587. [00:01:35] Speaker 01: And he pretty clearly states that he sings the law since Vallejo has changed and that the requirement that in non-conspiracy cases, independent evidence connecting the defendant to the scheme be presented no longer applies. [00:01:53] Speaker 01: That's his belief. [00:01:55] Speaker 01: I don't believe that's correct. [00:01:57] Speaker 01: I think that requirement continues to apply. [00:01:59] Speaker 01: The circuit is continuing to apply. [00:02:01] Speaker 01: It's important. [00:02:02] Speaker 01: And Judge Sabra made his ruling both on Rule 401 and 403 through that incorrect legal prism of believing that requirement is not there. [00:02:17] Speaker 01: I think this is particularly troubling because the way the Vallejo line of cases envisions the district court's role here is to make sure that in cases like this one, organizational knowledge is not unfairly imputed to the defendant [00:02:35] Speaker 01: unless there is, at minimum, there is some, the court is using the term substantial evidence connecting him to the conspiracy. [00:02:45] Speaker 03: Let me stop you there. [00:02:46] Speaker 03: So I think you're citing a case where the court noted that there was substantial evidence connecting the defendant to the conspiracy, but there was, I don't think the court said that substantial evidence was [00:02:57] Speaker 03: I think there just has to be sufficient evidence, but what is your authority for saying that there has to be substantial evidence to connect the defendant to the... Well, I think the cases actually do use the word substantial evidence. [00:03:11] Speaker 03: Well, which ones? [00:03:12] Speaker 03: Can you tell me? [00:03:13] Speaker 01: Well, I would think both Vallejo and Pineda Torres and probably Mejia Luna [00:03:22] Speaker 01: use language to that effect, because that's my best recollection. [00:03:26] Speaker 01: The other reason why I'm fairly certain that this is what is intended is because of the distinction between non-conspiracy and conspiracy cases. [00:03:35] Speaker 01: Because the reason that you don't need this in a conspiracy case is presumably if the government charges it with a conspiracy, there is enough evidence to go before a jury that you're a member of the conspiracy. [00:03:47] Speaker 01: So that need is addressed in the conspiracy cases this way. [00:03:52] Speaker 01: In non-conspiracy cases like ours, you have to have at minimum enough for a jury to conclude that he's a member of a draft track alien smuggling conspiracy. [00:04:03] Speaker 01: That's why I think it's not some tenuous evidence that connects him to the conspiracy. [00:04:09] Speaker 01: I think at minimum, the evidence has to be sufficiently strong to put up before a jury a rational inference that he's a member of the alien smuggling conspiracy. [00:04:20] Speaker 01: And I think the ways the courts have applied this requirement in practice, they have upheld this only when there was evidence connecting defendant to the alien drug smuggling conspiracy much more robust than what you have here. [00:04:38] Speaker 01: And that kind of brings me to why I think the expert testimony here [00:04:47] Speaker 01: was, I believe outcome-determined when you can compare it to the first trial, was that expert testimony wasn't presented. [00:04:56] Speaker 01: Because obviously you have Mr. Silva in his SUV with these two individuals. [00:05:04] Speaker 01: But if you look at it from his standpoint, and I've transmitted to the court photographs that I think best encapsulate his perspective, if you just have your car repaired, [00:05:18] Speaker 01: come up and drive, he testifies that he didn't even look in the truck. [00:05:22] Speaker 01: He had nothing to put in it. [00:05:24] Speaker 01: And there is nothing to suggest that that's not true. [00:05:27] Speaker 01: If you just look at it as a casual observer, it's a big SUV. [00:05:32] Speaker 01: You just kind of get in and go. [00:05:33] Speaker 01: I'm not a car person. [00:05:37] Speaker 01: I look at these photographs. [00:05:39] Speaker 01: Nothing tips me to the fact that there is something untoward in the cargo area. [00:05:47] Speaker 01: Does it describe every person's experience? [00:05:50] Speaker 01: I'm sure not. [00:05:50] Speaker 01: Some people will walk around their car every time and check for every little thing. [00:05:57] Speaker 01: So it's possible some people do that. [00:05:59] Speaker 01: But it's not unreasonable for him to have gone to his car after transmission repair and just drive to the border because that was his plan for the day. [00:06:09] Speaker 01: And we know from the government's expert that the car's transmission had been recently repaired. [00:06:16] Speaker 01: So he's not making that up. [00:06:20] Speaker 01: So at best you have, I think you just basically have innocent circumstances. [00:06:25] Speaker 01: He got into his car, he drove to the border. [00:06:28] Speaker 02: Now the government has argued straight... He had driven to the border and crossed the border several times before on the days immediately prior, right? [00:06:35] Speaker 01: Well on several days immediately prior because he bought a car several days. [00:06:40] Speaker 01: Like I think he bought the car slightly less than two weeks before he crossed the border. [00:06:46] Speaker 01: So he testified that he crossed to get the car registered, get an insurance, to get a smoke check. [00:06:54] Speaker 01: Those are normal things to do when you buy a new car. [00:06:59] Speaker 01: And the government hasn't shown that there was anything other than that in his crossing of the border. [00:07:05] Speaker 01: He lives in Mexico, but he's an American. [00:07:07] Speaker 01: There is nothing inherently suspicious in him crossing the border to do that. [00:07:17] Speaker 01: You know, much argument was made about the fact that he crossed at least once on November 30th and he could not explain. [00:07:26] Speaker 01: He couldn't remember. [00:07:29] Speaker 01: He said, I don't remember why I crossed that day and then called my landlord. [00:07:33] Speaker 01: You know, the retrial was in February of 2024. [00:07:37] Speaker 01: The crossing was in late November 2022 that a 60-year-old or 69-year-old man couldn't remember precisely why he called somebody that day. [00:07:48] Speaker 01: Honestly, that would be my experience. [00:07:50] Speaker 01: I'm fairly younger than Mr. Silva, and I think that would quite possibly mean me I wouldn't necessarily remember. [00:07:57] Speaker 01: I would have been shocked if he [00:07:59] Speaker 01: told the jury exactly why he called him, for what reason, and gave him details. [00:08:04] Speaker 01: So again, there is nothing inherently suspicious about that. [00:08:09] Speaker 01: And as far as his landlord, all we know about this person is that is the person he's renting the house from and this is somebody who he bought the car from. [00:08:20] Speaker 01: Again, they have a pre-existing general relationship. [00:08:24] Speaker 01: It's not like he's communicating with somebody that he does not already know. [00:08:30] Speaker 01: So all of the facts have fairly reasonable non-criminal meaning. [00:08:41] Speaker 01: And you put that was a fact that Mr. Silva has no prior record. [00:08:47] Speaker 01: He has means of income. [00:08:49] Speaker 01: There is no showing like we have in some cases of a defendant who has a dire financial need. [00:08:57] Speaker 01: Again, he's near 70, so there's no motive for him to do this. [00:09:01] Speaker 01: So if you put all that together, the government's case without the expert testimony is very tenuous at best that he knew. [00:09:11] Speaker 01: I mean, obviously, it's his car, so on that basis, it goes to a jury just to determine if he knew or he didn't. [00:09:18] Speaker 01: But without the expert, these are very ambiguous circumstances, and I'm not surprised that the first jury declined to unanimously convict. [00:09:27] Speaker 01: So I do think that the expert testimony played a key role here. [00:09:34] Speaker 01: Those are the three points that I wanted to make with the court. [00:09:37] Speaker 01: I'm happy to answer questions about anything else. [00:09:41] Speaker 02: Call for me, if the first jury didn't convict him, why did we have a second trial? [00:09:47] Speaker 01: Because, well, it was a hung jury, so it was a government retrial. [00:09:52] Speaker 01: So I'm sorry, I'm not using precise terminology. [00:09:55] Speaker 01: It was not acquittal. [00:09:56] Speaker 01: But you're right. [00:09:59] Speaker 01: Any other questions, Judge Gould? [00:10:03] Speaker 02: No, not for me. [00:10:04] Speaker 01: OK, then I would like to reserve the rest of my time for rebuttal, please. [00:10:08] Speaker 03: Thank you. [00:10:17] Speaker 00: Good morning, Your Honors, and may it please the Court. [00:10:19] Speaker 00: Nicholas Pilchak for the United States. [00:10:22] Speaker 00: The district court was well within its discretion to admit this routine modus operandi expert testimony. [00:10:29] Speaker 00: The court didn't use the wrong legal rule or announce the wrong legal rule that would result in an automatic finding of abusive discretion. [00:10:37] Speaker 00: The reply brief in this case from Mr. Silva says, incorrectly, [00:10:41] Speaker 00: that the district court found that circuit law on this issue has changed not to require a substantial connection, but that's not what the district court said. [00:10:49] Speaker 00: The district court simply said that the law has changed, which I'll get to in one moment, and it didn't specifically announce that there is a requirement to connect the defendant to an alien smuggling organization, and here's the evidence that I'm relying on to make that finding at the time of the ruling, but there clearly was ample evidence in the record connecting Mr. Silva to an alien. [00:11:09] Speaker 02: Why don't you tell us about that? [00:11:10] Speaker 00: Certainly. [00:11:11] Speaker 00: So I think the court's question a moment ago to Mr. Silva's counsel is the best place to begin. [00:11:15] Speaker 00: Those three prior trips into the United States with the load vehicle, the only time that the defendant had driven that load vehicle into the United States were short turnaround trips where he immediately returned to Mexico or within the space of a few minutes returned to Mexico after entering the United States, which was proved by cell site location information at trial. [00:11:36] Speaker 00: On each of those trips, [00:11:37] Speaker 00: Mr. Silva calls his landlord, Fernando, immediately after crossing. [00:11:42] Speaker 00: When Cross examined about this at trial, because Mr. Silva elected to take the stand in both trials, he testified that one trip was to buy guitar strings, but then admitted on Cross examination he'd have no reason to call his landlord about his trip into the United States to buy guitar strings. [00:12:00] Speaker 00: The expert evidence that was admitted explained it's common for alien smuggling organizations to burn the plates or establish several trips into the United States in a new vehicle. [00:12:10] Speaker 02: Burn the plate? [00:12:11] Speaker 00: Correct. [00:12:12] Speaker 00: To create a crossing record with the customs officials so that the first time you're driving a new vehicle with a new driver into the United States, it doesn't have two living, breathing people stuffed in a secret compartment in the back. [00:12:25] Speaker 00: It's maybe the fourth time or the tenth time so that Customs gets comfortable with the car before it comes in loaded. [00:12:31] Speaker 00: So I think that's the best place to start here. [00:12:34] Speaker 00: But then, of course, the evidence of what happened on the day of Mr. Silva's arrest incontrovertibly establishes that there is an alien smuggling organization, that there's a fully-baked operational alien smuggling conspiracy that brings the two material witnesses to a place [00:12:53] Speaker 00: where they're loaded into Mr. Silva's car, which is registered to him in this compartment that's highly modified and dangerous. [00:13:00] Speaker 00: The United States vehicle expert says he cut his hand several times just while inspecting the compartment as part of the government's investigation. [00:13:08] Speaker 00: The material witnesses were separated from the car's spinning axle by a piece of carpet. [00:13:13] Speaker 00: Part of the compartment was held together with chewing gum. [00:13:16] Speaker 00: It was a highly modified, dangerous, unusual compartment that essentially replaced the entire back end of the Ford Explorer under the carpet in the trunk area. [00:13:26] Speaker 00: And there's two living, breathing people who are loaded in there and then brought to the port of entry when Mr. Silva gets in and starts driving the car. [00:13:33] Speaker 00: Granted, there's no evidence that he saw the two material witnesses go in the back of the car. [00:13:39] Speaker 00: But other than that, every fact in his case is consistent with the factors that this court looked to in Mejia Luna to find that there was more than enough evidence in that case to establish a connection between the defendant and an alien smuggling organization. [00:13:53] Speaker 00: And in fact, there's more evidence in Mr. Silva's case, we would submit, to establish his connection with the smuggling organization, such as it was his vehicle with a highly modified compartment. [00:14:03] Speaker 00: Mijia Luna was not a compartment case. [00:14:05] Speaker 00: And then, of course, those prior crosses into the United States, where he's in close telephonic contact with Fernando, who certainly seemed to be his alien smuggling handler as part of the scheme. [00:14:17] Speaker 00: So that's the evidence of the connection here. [00:14:19] Speaker 00: To the extent this court has any concerns about the district court statements that the law has changed since Vallejo and Pineda-Torres, we think that there's two explanations for that that are perfectly consistent with this court's case law. [00:14:32] Speaker 00: One is the footnote in our brief that lays out at least 14 times since Mejia Luna and a companion case, Lopez Martinez, this court has admitted modus operandi expert evidence, much like the evidence in this case. [00:14:45] Speaker 00: In fact, sometimes more potent evidence. [00:14:48] Speaker 00: For example, an expert who takes the stand and says, these kinds of drivers almost always know what they're carrying, whether it's drugs or aliens. [00:14:57] Speaker 00: The expert in this case didn't even say that. [00:14:58] Speaker 00: He just explained how the organizations typically function. [00:15:01] Speaker 00: and some of the different roles in an alien smuggling organization. [00:15:05] Speaker 00: But 14 different times, this court has admitted that kind of evidence. [00:15:10] Speaker 00: The only time that it has refused to admit that kind of evidence since Mejia Luna, it was because the witness was insufficiently qualified. [00:15:18] Speaker 00: But here, even Mr. Silva agrees that the testifying officer, Officer Nazarino, was qualified to deliver this testimony. [00:15:25] Speaker 02: Mr. Pilchick, I've been taking notes, and I see that you have two points upon which you say there's substantial or sufficient evidence upon which the court could admit the expert testimony. [00:15:39] Speaker 02: One are the three prior trips shortly before the subject trip. [00:15:46] Speaker 02: And two, it was his vehicle. [00:15:49] Speaker 02: Yes, Your Honor, but to build on that... [00:15:52] Speaker 02: His position is that he didn't know that the compartment was there. [00:15:56] Speaker 02: He took his car to have repairs made. [00:15:59] Speaker 02: He didn't know that this was being done. [00:16:01] Speaker 02: And he was surprised as anyone else when the two men were there. [00:16:05] Speaker 00: Certainly. [00:16:05] Speaker 00: And I think, first of all, the jury obviously rejected that beyond a reasonable doubt at the trial. [00:16:09] Speaker 00: Second of all, the trial judge, who saw Mr. Silva testify twice, enhanced his sentencing guidelines for obstruction of justice because it found that he had testified falsely when he gave that innocent explanation. [00:16:21] Speaker 00: But I also think that's inconsistent with all the evidence in the case. [00:16:24] Speaker 00: And I want to return to your honor's question in a moment. [00:16:26] Speaker 00: But essentially, his story was I was driving 125 miles from the port of entry to Gardena, California, with these two gentlemen stuffed in this dangerous compartment under my trunk. [00:16:37] Speaker 00: And I think the jury quite logically rejected that and said, we find it not reasonable to believe you had no idea that this was happening. [00:16:45] Speaker 00: Why was he going to Gardena? [00:16:46] Speaker 00: He said that he was going to a football game with his son, who he hadn't telephoned [00:16:50] Speaker 00: hadn't made any arrangements with, but that he intended to surprise when he arrived 125 miles from the port of entry up to the football game. [00:17:00] Speaker 03: your honor frankly reeked of implausibility and the jury rejected it in reaching its conclusion but to go back to your honor's question so I'm sorry please I think your friend on the other side is suggesting that the jurors would not have made that connection without the expert testimony that that you needed somebody to explain burning the plates and the taking the load vehicle across the border and [00:17:21] Speaker 03: You needed somebody to explain that the person driving would not typically see the individuals being placed in the car, all of those sorts of things. [00:17:32] Speaker 03: So that this was the linchpin, this was the key testimony. [00:17:36] Speaker 03: So how do you respond to that? [00:17:37] Speaker 00: So two things. [00:17:38] Speaker 00: First of all, the first jury hung, but it hung 11 to 1 for guilt. [00:17:42] Speaker 00: That was the poll for the jury verdict in the first trial. [00:17:45] Speaker 00: Second of all, I agree. [00:17:47] Speaker 00: The expert testimony made that other evidence more sensible to the jury, and it allowed them to understand its significance much better. [00:17:55] Speaker 00: That's what this expert testimony is for and has been admitted to do in this court's precedent. [00:18:00] Speaker 00: So I agree it had that effect at the second trial, but that's its acknowledged purpose under this court's case law. [00:18:07] Speaker 00: But to the court's question, I think the evidence is still persuasive by itself. [00:18:12] Speaker 00: It's just more persuasive with the expert testimony. [00:18:14] Speaker 00: So as an advocate, the prosecutor can argue to the jury, well, what do you think is happening on these three prior trips when he comes into the United States and immediately turns around and goes back to Mexico after calling his landlord on the telephone, the same landlord he gave the car to, [00:18:29] Speaker 00: to be repaired when the special compartment was made in the back. [00:18:33] Speaker 00: But an expert can explain to the jury, that's how organizations like these typically function. [00:18:39] Speaker 00: So I agree, it makes that evidence more powerful. [00:18:41] Speaker 00: But that's a permitted purpose under this court's case law. [00:18:44] Speaker 03: So what is the standard for the connection between the alien smuggling operation and the defendant? [00:18:53] Speaker 03: What evidence needs to be shown before that evidence is admissible? [00:18:57] Speaker 00: whatever the standard is, it can't be higher than what was required in Mejia Luna, which I think is the best articulation of what's required. [00:19:04] Speaker 00: And in Mejia Luna, the evidence was essentially just that the defendant driving the car arrived in a car that matched the description that had been given to the material witnesses at the appropriate time and place and then watched them get in the car and conceal themselves and drove off to the predetermined destination. [00:19:22] Speaker 00: That was it. [00:19:24] Speaker 02: Was there any evidence that this defendant watched the two men get in his car? [00:19:28] Speaker 00: No. [00:19:28] Speaker 00: That's a big difference between the two cases. [00:19:30] Speaker 00: It is a significant difference, Your Honor, and that pulls in Mr. Silva's direction, but the existence of a highly modified dangerous compartment in the defendant's own vehicle [00:19:38] Speaker 00: and the prior three crossings, which I referred to a minute ago as burn runs, are an important difference that pulls in the government's... He claims he didn't know the compartment was in there. [00:19:48] Speaker 00: Correct. [00:19:49] Speaker 00: And I think the jury clearly rejected that, as did 11 jurors from the first trial and the district court in finding that he obstructed justice and testifying to that version. [00:19:57] Speaker 00: But that's correct. [00:19:58] Speaker 00: That is his version of the facts. [00:20:01] Speaker 00: I think it's consistent with almost all of the trial evidence and his explanation for why he was calling his landlord every time [00:20:08] Speaker 00: that he drove into the United States with his new vehicle that would be converted into an alien space. [00:20:12] Speaker 02: What was the explanation? [00:20:13] Speaker 02: Why was he calling his landlord? [00:20:15] Speaker 00: He had no explanation for two of the trips. [00:20:17] Speaker 00: For one of the trips, I think he said something about wanting to talk to his landlord about the condition that the car was in. [00:20:24] Speaker 03: Did he buy the car from the landlord? [00:20:27] Speaker 00: That was his explanation, yes. [00:20:30] Speaker 00: And his explanation also was I turned the car over to my landlord for transmission repairs, and that must have been when this compartment was added. [00:20:37] Speaker 00: So that's Mr. Silva's version of events. [00:20:38] Speaker 02: And the transmission repairs were made? [00:20:41] Speaker 00: There was some modifications to the transmission, yes. [00:20:43] Speaker 00: There were also massive modifications to the rest of the car. [00:20:46] Speaker 00: For example, they cut the exhaust line to build the compartment under the back of the Explorer, and the government's automobile expert said that would result in exhaust fumes pooling inside the vehicle when you were driving it. [00:20:56] Speaker 00: Although we acknowledge in our brief, the party stipulated that one of the material witnesses said he could breathe fine in the compartment. [00:21:03] Speaker 02: But you asked, I didn't get the last few words you said. [00:21:05] Speaker 00: Sure, one of the material witnesses would have testified that he could breathe okay in the compartment even though the exhaust line had been cut right by his head. [00:21:13] Speaker 00: So to return to the change in the law, I don't know if the court has any further concerns about that. [00:21:20] Speaker 00: The district court did say, I believe the law has changed. [00:21:23] Speaker 00: One other way that we think the law has changed since Pineda Torres is Mr. Silva's arguing [00:21:29] Speaker 00: It's an impermissible purpose to admit this kind of expert testimony to show that the driver likely knew about the cargo that he was carrying, but that principle can't possibly be true after the Supreme Court's decision last year in Diaz versus United States, where it admitted structure evidence in a drug trafficking case specifically for the purpose of showing most couriers know about the drugs that they're carrying. [00:21:55] Speaker 00: So at this point, that argument, we think, is off the table, but Mr. Silva is still advocating for it. [00:22:00] Speaker 00: I think that's also a perfectly reasonable explanation for any statement by the district court that the law has changed since Pineda Torres. [00:22:09] Speaker 02: What was his explanation of why he made those three trips? [00:22:14] Speaker 00: One was guitar strings, Your Honor, and one was, I believe, to register the vehicle, and the third escapes me at the moment. [00:22:21] Speaker 00: And the third was? [00:22:22] Speaker 00: I can't recall. [00:22:24] Speaker 03: Did he actually register the vehicle? [00:22:26] Speaker 00: I believe he did. [00:22:26] Speaker 00: So with that, Your Honor, we think that there's ample connection between Mr. Silva and what everyone acknowledges is a fully baked alien smuggling organization that was more than sufficient to admit the expert testimony in the discretion of the trial court. [00:22:44] Speaker 00: And there was no legal error in announcing the rules of the road for admitting that testimony by the district court. [00:22:50] Speaker 00: Unless the court has any other questions, I'd be prepared to submit. [00:22:53] Speaker 02: So the defendant says he went across the border into the United States to buy guitar strings which were not available in Mexico. [00:22:59] Speaker 00: I don't know that he was specifically examined on whether they were available in Mexico, but that was his explanation. [00:23:06] Speaker 02: Okay. [00:23:06] Speaker 00: Thank you. [00:23:07] Speaker 00: Very good. [00:23:07] Speaker 00: Thank you. [00:23:08] Speaker 02: Thank you. [00:23:18] Speaker 01: Yours, I have a couple of points to make and reply. [00:23:21] Speaker 02: Perhaps you can fill in the reason for the third trip, guitar strings registration and? [00:23:27] Speaker 01: So I think he said registrations, shrooms and smog and perhaps guitar strings. [00:23:35] Speaker 01: I don't recall how he apportioned them between different trips, but I believe most of the trips were to get the car insured and smogged and registered. [00:23:46] Speaker 01: And there was one trip where he said that he went to guitar strings, and Mr. Silva is a musician. [00:23:52] Speaker 01: He has a lot of guitars in his house. [00:23:54] Speaker 01: So it's not, again, it's not an unreasonable explanation. [00:23:59] Speaker 01: He's a retired musician. [00:24:03] Speaker 01: One other point of disagreement I have with Mr. Pilchak about the record is these were not short minute burn trips. [00:24:11] Speaker 01: I mean, I think one of them was for at least an hour, which would have been sufficient for him to drive into San Diego on his landlord's recommendation to get the car registered, smoked, and insured. [00:24:25] Speaker 01: Mr. Silva has lived in Mexico. [00:24:28] Speaker 01: for the last several years since the pandemic. [00:24:30] Speaker 01: So it's not unreasonable that his landlord might know more about the lay of the land. [00:24:34] Speaker 02: In Tijuana? [00:24:36] Speaker 01: Well, I assume that people who live in Tijuana have documents to cross into San Diego. [00:24:43] Speaker 01: They would know where things are in the areas immediately next to the border. [00:24:51] Speaker 01: And we don't know much about this landlord. [00:24:55] Speaker 01: Mr. Pilchak keeps calling him a member of the [00:24:58] Speaker 01: alien smuggling organization, we have no evidence that that's true. [00:25:02] Speaker 01: All we know about him is that he sold Mr. Silva his car. [00:25:06] Speaker 01: He's renting a house from him, and Mr. Silva asked him to help him with the repair. [00:25:14] Speaker 01: To give the court context, Mr. Silva has lived in Mexico for several years. [00:25:20] Speaker 01: He still doesn't speak Spanish. [00:25:22] Speaker 01: So again, [00:25:24] Speaker 01: You know, it's nothing unreasonable about relying on somebody local that he knows for things like, where do I repair the car or where do I go to get it insured and registered? [00:25:38] Speaker 03: So if the landlord, Francisco, is not part of an alien smuggling operation, then that would mean that when the vehicle was turned over to some unknown repair shop, [00:25:54] Speaker 03: Somebody in the repair shop took it upon themselves to modify the vehicle and place two people in it without telling the landlord, without telling Mr. Silva. [00:26:01] Speaker 01: Well, to be honest with you, I don't know what the relationship is between this landlord and the alien smuggling organization. [00:26:12] Speaker 01: Is he an active member? [00:26:14] Speaker 01: Is he just somebody who passes information? [00:26:16] Speaker 01: All of those things are possible. [00:26:20] Speaker 01: But my point is we don't know what his precise role is. [00:26:23] Speaker 01: And I don't think it's fair on this record to say that, you know, that establishes his communication with the alien smuggling operation when we don't know what part, if any, he's playing in it. [00:26:34] Speaker 01: And we don't know what they're talking about. [00:26:36] Speaker 01: And this brings me to my disagreement with Mr. Pilchak about the law. [00:26:41] Speaker 01: For example, in Mejia Luna, as I think Your Honor has alluded, the facts were much more compelling for the government to admit the testimony. [00:26:49] Speaker 01: Because there the defendant came to a point in the white car and there was evidence that the guide for the aliens told them to come to a specific point where somebody in the white car would come. [00:27:04] Speaker 01: And then the defendant watched these people come into his car. [00:27:09] Speaker 01: and hide themselves in it. [00:27:10] Speaker 01: I mean, that's a much more compelling case. [00:27:12] Speaker 03: How do they hide themselves? [00:27:13] Speaker 03: They came into the passenger compartment? [00:27:16] Speaker 01: It doesn't say. [00:27:16] Speaker 01: It just said he watched them hide or secret or hide themselves in the car. [00:27:21] Speaker 03: But they weren't in a hidden compartment under the floor. [00:27:24] Speaker 01: The court obviously didn't use the word compartment. [00:27:26] Speaker 01: So I can't say was I looking at the brief or the record. [00:27:29] Speaker 01: But I believe the opinion uses the words, secrets that are hid themselves in the car, whatever. [00:27:34] Speaker 02: Council, a couple of questions. [00:27:35] Speaker 02: Yes. [00:27:36] Speaker 02: Mr. Defendant here, he lived in Tijuana, right? [00:27:43] Speaker 01: Right, he was running a house in Tijuana since 2019. [00:27:46] Speaker 02: Amarith Gabriel's stipulation says he was driven to a house in Tijuana, and the car in question was a dark colored SUV, correct? [00:27:57] Speaker 01: That sounds about right. [00:27:58] Speaker 02: Right, thank you. [00:28:04] Speaker 01: I'm sorry, was there a question beyond that? [00:28:07] Speaker 01: Right, right. [00:28:09] Speaker 01: So in conclusion, if I could please make a brief concluding remarks. [00:28:14] Speaker 01: First of all, I don't think the law has changed and continues to be the same. [00:28:18] Speaker 01: I do think Judge Sabrah said that the law changed and [00:28:23] Speaker 01: in no longer requiring the connector requirement to be there. [00:28:28] Speaker 01: And I think this is evident also from his reference to Lopez Martinez. [00:28:32] Speaker 01: Lopez Martinez is a conspiracy case, clearly not applicable to a case like ours. [00:28:38] Speaker 01: So I think there may have been some confusion in how the court was viewing the cases. [00:28:44] Speaker 01: And I think that confusion persists in the government's brief. [00:28:47] Speaker 01: In their long string of sides, [00:28:49] Speaker 01: of cases, the cases are either conspiracy cases or cases where this issue of connecting evidence wasn't addressed and cases are not authority for proposition, they were not considered, or even if [00:29:06] Speaker 01: Decent published cases don't precisely explain the basis for admission. [00:29:10] Speaker 01: They also don't elaborate on either what was before the court or what issues the defense raised in the objection. [00:29:17] Speaker 01: I just think it's inaccurate to say that there is this mountain of cases where the courts are now admitting this routine. [00:29:25] Speaker 01: It's just not there. [00:29:26] Speaker 01: In a few cases that actually elaborate, [00:29:29] Speaker 01: and what evidence is required, it's much more robust than what you have here. [00:29:32] Speaker 01: So I would ask the court to reverse all four counts of my client's conviction and remand the case. [00:29:39] Speaker 01: Thank you. [00:29:39] Speaker 03: Thank you. [00:29:41] Speaker 03: Counsel, thank you for your arguments this morning. [00:29:43] Speaker 03: This case is submitted. [00:29:45] Speaker 03: Thank you. [00:29:45] Speaker 03: And we are in recess until tomorrow morning. [00:30:00] Speaker 03: This court stands in recess till tomorrow morning.