[00:00:01] Speaker 00:
Case number 13-, excuse me, case number 10-3083 at L. United States of America versus Juan Jose Martinez Vega, also known as Chiquero, also known as Gentile Alvis Pitino Appellant.

[00:00:17] Speaker 06:
Good morning, counsel.

[00:00:19] Speaker 06:
Since we have so many different appearances today, we'd appreciate it if you would identify yourself and who you represent.

[00:00:25] Speaker 01:
Certainly, Your Honor.

[00:00:26] Speaker 01:
My name is Richard Gilbert.

[00:00:27] Speaker 01:
I represent Mr. Martinez Vega.

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and I was his trial counsel, as well as representing him on this appeal.

[00:00:37] Speaker 01:
I have ten minutes this morning.

[00:00:38] Speaker 01:
What I'd like to do is, first of all, reserve two minutes for rebuttal, if the Court's questioning permits that.

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Secondly, let me make clear that the two issues that I intend to talk about this morning of the joint issues are both essentially the importation issues, that is, the sufficiency of the evidence

[00:00:56] Speaker 01:
that the defendants knew that any cocaine they were involved with was going to the United States and also the question of the sufficiency of the jury instructions.

[00:01:07] Speaker 01:
I do want to make one thing clear, though, because as perhaps the court has gleaned from reading the briefs, the factual allegations against Mr. Martinez Vega and Mr. Cuevas were quite different.

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They operated in entirely different parts of Colombia, and they had no direct relationship with each other.

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So if you do have questions that pertain to the factual matters against Mr. Cuevas, it's our understanding that Mr. Redereta will take some of his time to address those questions.

[00:01:37] Speaker 01:
As far as the two issues I'd like to talk about, I'm going to start, if you permit, with the issue of the instruction, as quite frankly that has a much, much more favorable standard of review for the appellants.

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And frankly, this is inexplicable to me.

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The fact that the defendants had to have personal knowledge for the intent to import the cocaine in the United States is unequivocally an element of the offense and the instruction that we proffered was, I think, clear and concise and explained to the jury

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that particular element.

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That's the law in this jurisdiction.

[00:02:14] Speaker 01:
The Martinez case, which the government relies on in the context of the sufficiency of the evidence, is precisely a case where there was an objection to the instructions, but it was harmless in part because the judge in that case gave the same type of instruction we requested.

[00:02:30] Speaker 01:
Why the trial judge in this case declined to give that instruction, I simply cannot understand.

[00:02:36] Speaker 07:
It's about imports.

[00:02:37] Speaker 01:
Yes, that the defendants had to have the personal knowledge or the personal intent that the drugs with which they, in the conspiracy they were involved with was going to the United States.

[00:02:48] Speaker 05:
Let me deal with the Childress case where the district court actually instructed on conspiracy as a general intent crime and nonetheless we found harmless error in the instructions.

[00:03:03] Speaker 01:
I don't have the facts for that case yet, but I will say that in this particular case, we're talking about an element of the offense, a particular mens rea, and because of the way the judge continued the instruction, it actually led the jury away from this conclusion.

[00:03:22] Speaker 01:
When the judge instructed the jury that

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The defendants need not have agreed to all the details.

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They need not have been fully informed of all the details.

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They need not know the full extent of the conspiracy or all the actions of its members.

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They didn't have to know they were violating any particular law.

[00:03:41] Speaker 01:
They only had to be aware generally of the unlawful nature of their conduct.

[00:03:47] Speaker 05:
There was an instruction on JA 1716 that talked about there has to be an agreement to import or during the relative time during the allegation was an agreement to import five kilograms of more into the United States and they had to intentionally join in that agreement.

[00:04:07] Speaker 01:
Yes, but

[00:04:09] Speaker 05:
Does that not convey what you want it to convey?

[00:04:11] Speaker 01:
No, no, because the court sort of divided this into sort of two questions for the jury.

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And one, what was the conspiracy?

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And we agree that at least initially, the judge made it clear that the objective of the conspiracy was the importation of cocaine in the United States.

[00:04:28] Speaker 01:
Now, part of the problem is, as he continued to discuss that, he used what the government calls shorthand and then just continued to refer to unlawful or criminal or illegal conduct without continually reiterating that importation.

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Now, that itself wouldn't be a problem if they had gone on to talk about what the defendants needed to personally know or their personal mens rea.

[00:04:50] Speaker 01:
But when you start to say they don't have to know all of these details, I posit the question in my brief and I submit the government has never answered it.

[00:05:04] Speaker 05:
Five, it should be exports, shouldn't it?

[00:05:08] Speaker 01:
No, and to import.

[00:05:09] Speaker 01:
What makes it a crime is importing it into the United States.

[00:05:12] Speaker 05:
They had to agree to intentionally join the agreement to import five kilograms more into the U.S.

[00:05:19] Speaker 01:
Right, but that doesn't say what they have to know in particular.

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In other words, if they intentionally join the conspiracy as helping FARC,

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traffic drugs, produce them, or in the case of Mr. Martinez-Vegas, transport them within Colombia or within Colombia to Venezuela, they might find that they, in fact, joined a larger conspiracy.

[00:05:45] Speaker 01:
But it doesn't say that they had to know all the details, and I suggest that one of the... That is the case.

[00:05:52] Speaker 07:
That's not an error to say they didn't have to know all the details.

[00:05:58] Speaker 07:
Yes.

[00:05:59] Speaker 01:
There is no question in our mind that had the judge given the instruction we asked for, so the jurors were told unequivocally that had to find this particular state of mind, then yes, all these other

[00:06:16] Speaker 01:
qualifications wouldn't have made any difference because it would have laid it out simply for the jury but the government's asking you instead to say well we read between the lines and sure we see lots of things that could be contradictory but but surely the jury must figure that out and I suggest that this really hinges on what it means to talk about unlawful.

[00:06:35] Speaker 07:
What's the citation where your grievance is focused?

[00:06:39] Speaker 07:
I beg your pardon?

[00:06:40] Speaker 07:
What's the page at which the judge erred?

[00:06:45] Speaker 06:
What's the specific statement that you're challenging?

[00:06:48] Speaker 01:
Well, what we're challenging, of course, is a statement that he didn't give.

[00:06:52] Speaker 01:
And there are written pleadings, and I can find them at the break.

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There are written pleadings where I ask for this instruction.

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I don't believe the government is disputing that I ask for the instruction on mens rea.

[00:07:04] Speaker 07:
Here's what he said, though, and this is at 1729 and 30.

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If you find that the government has not proven beyond a reasonable doubt,

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that the defendant conspired to import any amount of cocaine or to manufacture and distribute any amount with the intent or knowledge that it would later be imported to the United States, then you should find the defendant not guilty.

[00:07:25] Speaker 07:
That's full, complete, and accurate.

[00:07:29] Speaker 01:
Well, I respectfully suggest it's not complete because what I'm going to keep going back to is joining the conspiracy is one thing.

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And conspiracy law makes it clear that you can join a conspiracy on a pretty thin reed.

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You don't have to know all the details.

[00:07:45] Speaker 07:
And my question is... That passage appears five pages earlier, at 1725.

[00:07:49] Speaker 01:
The passage you decided?

[00:07:52] Speaker 07:
No.

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The one that you're complaining about.

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Right.

[00:07:55] Speaker 07:
Saying you don't have to know all the details.

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But as it goes on, it finally completes this section of the instructions.

[00:08:02] Speaker 07:
It's to say if you don't find beyond a reasonable doubt that they have the knowledge,

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or intent, then you must acquit.

[00:08:10] Speaker 01:
Well, with all due respect, I guess I don't read it precisely that way.

[00:08:14] Speaker 01:
I read it with them.

[00:08:16] Speaker 01:
Right, but I guess the point I'm trying to make is that it's the joining of the conspiracy

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That's the issue.

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And a jury could find, not realizing what the particular mens rea was, that they joined the conspiracy.

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And indeed there were conspirators who knew where the drugs were going to the United States.

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But they didn't know.

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And my question that I posit in the brief, and I respectfully suggest the government never answered, is what would make it unreasonable for a juror to believe that these defendants in their respective fronts joined the conspiracy, but were not aware of where the drugs were going?

[00:09:01] Speaker 01:
And therefore, they didn't have that particular mens rea on that particular element of defense, even though they were otherwise perfectly aware of their unlawful conduct.

[00:09:24] Speaker 03:
Good morning.

[00:09:26] Speaker 03:
May it please the court.

[00:09:27] Speaker 03:
My name is Manuel Retireta.

[00:09:29] Speaker 03:
I represent Mr. Erminso Cuevas Cabrera.

[00:09:33] Speaker 03:
I'm here with my co-counsel, Mr. Gary Seidel, and we were both trial counsel at the trial in this case.

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Just picking up as Mr. Gilbert indicated the sufficiency of the evidence, just a brief mention for my client.

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And if I may, if I could have two minutes worth of rebuttal time with the permission of the court.

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With Mr. Cuevas, there were four witnesses really that were against him.

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There were two lab workers, lab workers from the cocaine lab that were presented by the government.

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There was also a cooperating witness that was the witness that accepted the satellite phones that were discussed, that are discussed in the Title III issue that we have.

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And then also another

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gorilla that visited the lab where Mr. Cuevas was supposed to have operated and conducted the business.

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It is those four witnesses that are

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the point of the government's case against him.

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Absent those four witnesses, there is pretty much nothing against Mr. Cuevas, nothing specifically related to intent to import into the United States or tying to a cocaine lab.

[00:11:02] Speaker 03:
I don't want to just sweep away those four witnesses, but three of those witnesses were what were called Colombian re-insertados.

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which were witnesses that were previously guerrillas captured or submitted themselves to the Colombian army.

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And then as part of that, they were debriefed.

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They were reintegrated into Colombian society.

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However, they were still under the watchful eye of the Colombian government, and as we note in our argument related to the confrontation issue, they were actually tethered with an electronic monitor while we were here in the United States.

[00:11:40] Speaker 07:
Wasn't the jury informed that they were all subject to prosecution?

[00:11:45] Speaker 03:
They were all subject to prosecution.

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As an example, the woman, Maria Santiago, who was the cook at the lab,

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in her testimony testified that she did not think that she was subject to perjury here in the United States.

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So while there was a level of agreement with them and the Colombian government, they felt that they

[00:12:12] Speaker 03:
Well, I don't want to put words in.

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There was not that same tie to the United States and the prosecutors in this case.

[00:12:19] Speaker 05:
I mean, you're conceding there were four witnesses that provided evidence as to the intended location of at least five kilograms of all this cocaine that was being produced.

[00:12:35] Speaker 05:
And you're making credibility arguments, which a jury certainly could have credited, but apparently

[00:12:41] Speaker 05:
So I'm having trouble figuring out what, I don't think you're, are you saying anything to us as to credibility that the jury either didn't know about or could have been informed about?

[00:12:51] Speaker 03:
No, I'm putting it in the most conservative fashion because what they ended up saying was barely linking Mr. Cuevas

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to that lab, let alone knowledge of importation to the United States.

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Because it was Maria Santiago the cook who said that she saw him there.

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It was her brother who said he saw him there.

[00:13:21] Speaker 05:
It was the... I didn't see him.

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He was running the place.

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He was running the lab.

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He was the owner or at least supervisor of this lab.

[00:13:28] Speaker 05:
Seems like all the lower level or a lot of the lower level folks knew where it was intended.

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And there's evidence that higher-ups in the FARC knew where they wanted to get this.

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And they're making tons and tons and tons.

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And I think all we need to know is whether a reasonable jury could have found that five kilograms or more of that, of those tons and tons of cocaine that folks expected to go to the United States and had financial incentives to send to the United States was intended to go to the United States.

[00:13:59] Speaker 03:
But the Colombian guerrilla who testified about his presence at that, not the worker, the one that would travel to, identified another person, a person by the name of Cuda, translated as priest, who was the one that was running that lab.

[00:14:15] Speaker 03:
And the cooperator who accepted the satellite phones

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The cooperation between the witnesses wasn't there.

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So while there was this structure of there was a lab and we think that this person is tied to that lab, each of those witnesses contradicted the presence of the identification of our client as opposed to others who may have been operating or working in that lab.

[00:14:47] Speaker 06:
So your argument is not so much their credibility, it's just that if you take them at their word, the evidence was not sufficient.

[00:14:55] Speaker 03:
Yes, if you throw in credibility, we have huge issues in terms of the reinsertado status, their cooperation, their believability, or at least the jury's analysis of whether or not they have a motive to say something other than the truth.

[00:15:11] Speaker 03:
Well, I have some additional time.

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I want to turn to the prosecutorial issue, and that is the closing statement that was made by the prosecutors in this case.

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This court has

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addressed and heard other cases dealing with closing arguments specifically.

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And I'm saying that because some of the opinions and some of the cases deal with statements made by prosecutors, improper statements, but sometimes at the beginning of a case.

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In this case,

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The defense was dealing with all elements that were discussed in the Moore case, what we like to discuss as the Gray 1 case, because as Judge Millett is aware, there is a Gray 2 case where there were similar issues.

[00:16:04] Speaker 03:
But I'll refer to it as the Moore Gray 1 case.

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But that case gives us the elements that we should look to when we have such a closing that we think is out of bounds.

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We look to the closeness of the case, which is offshoot of our sufficiency argument, but the centrality of the issue that was discussed here.

[00:16:23] Speaker 03:
And what was happening here, we would argue, is that there was a direct attack on defense counsel.

[00:16:31] Speaker 03:
There was a direct attack on the defense, but that attack, rather than going towards the evidence,

[00:16:38] Speaker 03:
spilled over into the world of the defense council.

[00:16:42] Speaker 03:
We begin with the reference to... I'm sorry to interrupt.

[00:16:45] Speaker 05:
I just have a set-up question here, and that is the objection to this argument wasn't immediate.

[00:16:52] Speaker 05:
It was after a break.

[00:16:54] Speaker 05:
Is that correct?

[00:16:55] Speaker 05:
Yes.

[00:16:57] Speaker 05:
Do you know

[00:16:58] Speaker 05:
It seems like there's unsettled law in the circuits as to whether that counts as sufficiently preserved or whether we apply plain error since it wasn't right at the time and then there was a break and then you came back and so the judge couldn't immediately correct it right then and there.

[00:17:16] Speaker 05:
Do you have a position on that?

[00:17:18] Speaker 03:
No, I don't know that.

[00:17:20] Speaker 03:
I refer back to

[00:17:22] Speaker 03:
the request that's made at the time, I mean, it's, you know, being trial counsel, I can say it was a strategic decision at that time, because certainly things are being said, and jurors are attentive, and you think, well, wait a minute, I don't want to pop up and say, foul, foul, foul, and have the jurors look at us as if we're crying wolf.

[00:17:46] Speaker 03:
So no, Your Honor, I do not know, I do not know that answer.

[00:17:50] Speaker 03:
But we do have the situation that Moore describes and that is language, which inflames passion, which refers to a hometown of one of the prosecutors and this is what ends up in my streets.

[00:18:04] Speaker 03:
That's not evidence in the case.

[00:18:06] Speaker 03:
Attempts to place the jurors in the shoes of the

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the victims here, the witnesses here, and eight separate instances that we were able to count where prosecutors stated, I don't buy it, and maybe you shouldn't buy it, and I don't think that's right.

[00:18:24] Speaker 03:
And as Moore indicated, anything that goes beyond a fact-based argument, anything that goes to something that is not supported by the evidence or in flames is something that needs to be examined.

[00:18:38] Speaker 03:
Our concern with this argument is the concern that we've had with other cases.

[00:18:43] Speaker 03:
There is a progression of these arguments, this style of argument, that we feel needs to be, at the very least, identified, corrected.

[00:18:54] Speaker 03:
In this case, we feel that it took what was a weak government case

[00:19:02] Speaker 03:
and brought it into the shoes of the jury who was feeling it, thinking about it on their streets just as the prosecutor argued that it was on his streets in his hometown.

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And that's just not appropriate.

[00:19:16] Speaker 06:
When you say this was a direct attack on defense counsel and what you're referring to is the government lawyer's statement that I don't buy it or I don't agree, is that what you're referring to?

[00:19:30] Speaker 06:
You don't think that could be viewed as just saying the evidence doesn't support that?

[00:19:36] Speaker 03:
Well, I like to think of what should be said.

[00:19:39] Speaker 03:
And what should have been said is the evidence was contradicted.

[00:19:44] Speaker 03:
The evidence, the weight of the evidence was not as much as you, as much as the defense argued it.

[00:19:52] Speaker 03:
There is other evidence which shows that this was not correct.

[00:19:57] Speaker 03:
I don't buy it, and you shouldn't buy it, because there was a you shouldn't buy it also, is, look, I'm the government counsel.

[00:20:04] Speaker 03:
I'm here protecting you from these Colombian guerrillas.

[00:20:08] Speaker 03:
And I don't think it's good, so maybe you should listen to me because I carry the weight of the U.S.

[00:20:14] Speaker 03:
government when I'm arguing.

[00:20:16] Speaker 07:
The court said he doesn't.

[00:20:19] Speaker 03:
Exactly.

[00:20:20] Speaker 07:
The court said that's not to be taken.

[00:20:23] Speaker 03:
Oh, no, there's no corrective instruction.

[00:20:24] Speaker 03:
There was no corrective instruction there.

[00:20:25] Speaker 03:
We asked for something and there was no corrective instruction.

[00:20:27] Speaker 07:
It wasn't a standard instruction?

[00:20:30] Speaker 03:
There was a standard instruction, but we objected and that was denied.

[00:20:36] Speaker 07:
You objected, you wanted more.

[00:20:38] Speaker 03:
Yeah, yeah, yeah.

[00:20:39] Speaker 03:
We objected to that that that that was being said in there, which is another one of the more elements, which is what what was done to correct what we just heard.

[00:20:49] Speaker 03:
And that was absolutely nothing in this case.

[00:20:51] Speaker 03:
And again, distinction with some of the other cases, this was at the very end, right before they walked back into the jury room.

[00:20:59] Speaker 03:
Thank you.

[00:21:20] Speaker 04:
May it please the court.

[00:21:21] Speaker 04:
My name is Michael Levy, and I represent the government on this appeal.

[00:21:24] Speaker 04:
I think I will just follow the order that my adversaries did and address the same issues in that same order.

[00:21:32] Speaker 04:
If I could start with the jury instruction, it was suggested that that was the place to start because the standard review is more favorable to the defense on that.

[00:21:42] Speaker 04:
That is not true.

[00:21:43] Speaker 04:
For the jury instruction, what we're talking about here is a choice of language.

[00:21:49] Speaker 05:
Did you object to their proposed jury instruction?

[00:21:54] Speaker 04:
I believe we did, although I'm not.

[00:21:56] Speaker 05:
Why?

[00:21:56] Speaker 05:
It certainly would have clarified.

[00:21:58] Speaker 05:
This is complicated stuff for a jury to navigate through, and you have to admit that there were times when there was not the precision one would want from the district court judge in a big case like this.

[00:22:14] Speaker 05:
Why would you object?

[00:22:16] Speaker 05:
What were you afraid of?

[00:22:17] Speaker 04:
I disagree that the language added anything, Your Honor.

[00:22:22] Speaker 04:
I think if you look through the charge... Is that a ground for objection?

[00:22:26] Speaker 04:
It is a basis for not revising the charge, and I suppose I should be more certain that we did object than that it wasn't just that the judge rejected it.

[00:22:33] Speaker 04:
I don't want to suggest that I'm certain here.

[00:22:35] Speaker 04:
I'm not positive.

[00:22:37] Speaker 05:
But I think an objection... That instruction has been used in other... The one that they asked for, it's not like something out of left field.

[00:22:41] Speaker 05:
It's been used by district courts in other cases precisely to add the clarity and to point the jury to the sort of precision of the two-part findings and determinations that they need to make.

[00:22:52] Speaker 04:
But that precision was added, was there in the language.

[00:22:56] Speaker 04:
It may have been that this would have duplicated it.

[00:23:01] Speaker 04:
I think certainly our best language I think certainly is what Judge Ginsburg was quoting earlier at, I think it's 1729.

[00:23:12] Speaker 04:
The jury was told point blank what they did and did not need to find in order to convict.

[00:23:21] Speaker 04:
And I would suggest that is just the very end of a series of instructions that, if anything, made the importation, were repetitive with respect to how critical the importation element was.

[00:23:37] Speaker 04:
In the Martinez case, this court found that one of the reasons the instruction was fine in that case was because

[00:23:48] Speaker 04:
I think it was that five or six times the court had talked about knowledge of importation in the United States.

[00:23:55] Speaker 05:
I went back and counted... Back to 1729, because the problem is that right at the top of that page, you've got a couple of the... What is necessary is that a defendant participated in the conspiracy with knowledge of its unlawful purposes.

[00:24:10] Speaker 05:
And you've got twice, right?

[00:24:12] Speaker 05:
Right there.

[00:24:13] Speaker 05:
Potentially engage your advisor system for the purpose of furthering an illegal undertaking.

[00:24:18] Speaker 05:
So it's not as though the worries themselves is all five pages early.

[00:24:22] Speaker 05:
You've got it right there, back to back.

[00:24:25] Speaker 05:
And then we don't say don't find guilty.

[00:24:27] Speaker 05:
We say if you find this intent, you should find them guilty.

[00:24:31] Speaker 04:
It actually does say don't find guilty.

[00:24:32] Speaker 04:
If you keep going to the next page, it says if, however, you find that they have not proven beyond a reasonable doubt.

[00:24:38] Speaker 05:
Is it clear then, given what's said on the top of page 1729, is it clear on 1730 that the conspiracy has to have the intent or that they had to have the intent?

[00:24:49] Speaker 05:
I mean, I think that's their argument.

[00:24:51] Speaker 04:
I would argue it's perfectly clear that they had to have the intent.

[00:24:56] Speaker 04:
First of all, on 1729 and 1730, I think it's abundantly clear.

[00:25:00] Speaker 04:
I think if you look just at that, it couldn't be clearer that they have to have had the intent.

[00:25:07] Speaker 04:
And then even the part that Your Honor was just quoting, which talks about the knowledge of its unlawful purposes and with an intent to aid in the accomplishment of its unlawful objectives, there had been, and I counted again, 15 or 20 references, depending on how one counts, to the object being

[00:25:26] Speaker 04:
uh... importation with knowledge that it would be important manufacture with knowledge that would be imported into the united states your view of seventeen twenty five that the district court was essentially defining what the unlawful purpose and objectives were the district court of more than seventeen twenty five as i said that the instruction was if anything repetitive in how often it went through here is what the conspiracy is

[00:25:49] Speaker 04:
If you go through 15 or 20 times, the district court actually says either, I think 15 times the district court says knowledge of importation into the United States, another five times it uses the shorthand knowledge of importation.

[00:26:06] Speaker 04:
without actually following through and saying into the United States, but importation can only be the United States in this context, then wraps it all up at 1729 and 30 saying exactly what was required.

[00:26:17] Speaker 04:
And if I could add one other fact that I think we didn't highlight as much as we should have in our brief.

[00:26:22] Speaker 04:
the summation on this point.

[00:26:24] Speaker 04:
The government in its own summation talked at first about five things that it argued were not in dispute, and then said there are really only two questions that are left in terms of what's in dispute, and this is at page 92 of the summation.

[00:26:38] Speaker 05:
Would we rely on attorney's summations?

[00:26:40] Speaker 05:
Are there cases that say if we were, just assume if we were

[00:26:45] Speaker 05:
still unclear about whether the instructions passed muster.

[00:26:50] Speaker 05:
Can we rely on attorney summations since my assumption is you're going to say on other issues in this case that attorney arguments aren't to be.

[00:26:59] Speaker 05:
are just arguments, but not the instructions that they should follow, but not evidence, and they're also not the instructions they should follow.

[00:27:04] Speaker 04:
I certainly will be arguing that on other points, Your Honor.

[00:27:07] Speaker 04:
On this, I do believe there are cases, I don't have them at my fingertips, but for a harmlessness argument, if the court were to find that the instruction were erroneous, in terms of figuring out whether or not the jury could possibly have misunderstood this,

[00:27:20] Speaker 04:
The government in its summation, and to be clear, the government's position is there is nothing wrong with these instructions, that they really were perfectly clear, and that the defense is quibbling about the language, and that was within the district court's discretion.

[00:27:34] Speaker 04:
But even if there were error in terms of harmlessness, the government said that there were two questions, and only two that were in dispute,

[00:27:41] Speaker 04:
First, were all the government witnesses lying when they said that Martinez Vega and Cuevas-Cubrera were participants in the conspiracy?

[00:27:49] Speaker 04:
That doesn't have to do with this issue.

[00:27:51] Speaker 04:
And the second question, which is the subject of some dispute, and I'm quoting, and that is, did the defendants know that the cocaine was coming to the United States?

[00:28:00] Speaker 04:
So the government, in its summation, and then the government proceeded to address what the evidence showed on that, there was no misunderstanding.

[00:28:08] Speaker 04:
The government in its summation suggested that those were the two issues, but the first one... That was argumentative in itself.

[00:28:15] Speaker 07:
The defense had made an issue out of identification.

[00:28:19] Speaker 04:
The first question encapsulated all that.

[00:28:22] Speaker 04:
The government said the first question in the dispute is, are all of our witnesses lying when they say that these defendants were participants in the conspiracy?

[00:28:29] Speaker 04:
So it's all captured in that.

[00:28:31] Speaker 04:
Basically, did these guys do it?

[00:28:33] Speaker 04:
And then question number two is, did they have the appropriate knowledge?

[00:28:36] Speaker 04:
So the government had carved that out and made a whole point of that as being a significant dispute.

[00:28:44] Speaker 07:
It was not possible.

[00:28:46] Speaker 07:
You might as well have said it's only one issue.

[00:28:47] Speaker 04:
That would have been a shorter but less focused submission, maybe more focused.

[00:28:53] Speaker 04:
Unless there are further questions on the jury instruction, I'll turn for a moment to the sufficiency of the evidence.

[00:29:00] Speaker 04:
It sounded like my adversary was arguing a sufficiency claim that is different on behalf of Mr. Cuevos than was presented in the brief, which was that Mr. Cuevos, that there was insufficient evidence that he was even responsible for the lab.

[00:29:14] Speaker 04:
The evidence was overwhelming.

[00:29:16] Speaker 04:
I think the defense counsel even conceded there were four witnesses who tied him to the lab.

[00:29:21] Speaker 04:
That, I think, appropriately was not an argument that was even made in the brief.

[00:29:26] Speaker 04:
The sufficiency challenge that has been made is with respect to whether or not these two defendants

[00:29:33] Speaker 04:
knew that the drugs were, or that some quantity of the drugs, five kilograms or more, of these thousands of tons of drugs were coming to the United States.

[00:29:43] Speaker 04:
A couple points that I would just call to the court's attention on that is to bear in mind that this is a conspiracy charge, of course.

[00:29:49] Speaker 04:
And so some of the cases that the defense relies on

[00:29:52] Speaker 04:
although they may have been conspiracy charges as well, focused very much on a single load.

[00:29:59] Speaker 04:
That was the case to some extent in Martinez.

[00:30:02] Speaker 04:
It was certainly the case in London Ovia.

[00:30:06] Speaker 04:
those were cases where the question was did the defendant know that a particular load was going to the United States.

[00:30:12] Speaker 04:
That's not the circumstance here.

[00:30:14] Speaker 04:
For sufficiency in a conspiracy case like this that covered years and covered thousands of tons of cocaine where there was clear testimony that the United States was the predominant market for this cocaine.

[00:30:27] Speaker 05:
And please tell me if I'm wrong that it struck me as a little, I couldn't quite figure out how to deal with this with our light most favorable context of looking at evidence at this point.

[00:30:38] Speaker 05:
When you have, I'm right first of all that all the jury had to find was that of those tons and tons and tons, at least five kilograms were aimed for the U.S.

[00:30:52] Speaker 04:
That's correct.

[00:30:52] Speaker 04:
In fact, it didn't even have to have gotten here, although obviously it did.

[00:30:55] Speaker 05:
Yes.

[00:30:57] Speaker 05:
You had a lot of overwhelming statistical evidence that the district courts recited as well.

[00:31:07] Speaker 05:
Do you know how one takes that in the light most favorable?

[00:31:12] Speaker 05:
to the jury at this point, the statistics as opposed to, you know, if there's tons and tons and tons and some percentage, do we do some sort of mathematical breakdown to make sure that at some level there's, I just got to get five, you know, think that five would have gotten three.

[00:31:27] Speaker 04:
I have a somewhat crude analogy that I may not hold up perfectly, but for how just the statistical analysis alone, leaving aside the specific evidence from witnesses.

[00:31:38] Speaker 04:
But if you and I have an agreement to flip a coin,

[00:31:42] Speaker 04:
And the question is, did I know the coin was going to come up heads?

[00:31:46] Speaker 04:
The answer to that may or may not be yes.

[00:31:50] Speaker 04:
If we agree to flip a coin 10,000 times, I know that the coin is going to come up heads.

[00:31:55] Speaker 04:
That is the situation that we have here.

[00:31:56] Speaker 08:
At least once.

[00:31:57] Speaker 04:
At least once.

[00:31:58] Speaker 04:
That's the situation that we have here.

[00:32:01] Speaker 04:
These defendants were involved in a massive conspiracy to ship thousands of tons of cocaine, knowing that the United States was a regular destination.

[00:32:12] Speaker 05:
I'm just trying to figure out that under that, sort of just the structural operation of FARC, its cocaine export business, the amount of cocaine coming from Columbia to the U.S., the fact that U.S.

[00:32:25] Speaker 05:
is such a prime market, could everybody that was involved at the laboratory from the lowest person on up be indicted for this same offense, because they would all have the same basis for knowledge?

[00:32:38] Speaker 04:
I think

[00:32:40] Speaker 04:
Well, let me say that I'm not sure that's something that has to be decided in this case.

[00:32:44] Speaker 05:
We don't differentiate anybody.

[00:32:46] Speaker 04:
What would differentiate people is their level of supervision, and that's something that this court in Martina has found to be significant.

[00:32:53] Speaker 05:
And these were high- But it was the lower-level workers here that actually were talking about it going to the U.S.

[00:32:58] Speaker 04:
Certainly anybody who actually talked about it knew that it was going to the U.S.

[00:33:02] Speaker 04:
If you were to pluck a lower-level worker who worked for some brief period of time in a lab and say, based purely on the statistics, that short-term worker for two weeks knew that it was going to the United States,

[00:33:16] Speaker 04:
Could a jury, would that evidence be sufficient for a jury to convict?

[00:33:21] Speaker 04:
It might be.

[00:33:22] Speaker 04:
Again, that's not the case.

[00:33:23] Speaker 04:
It might not be.

[00:33:24] Speaker 04:
That's not the case we have here, though.

[00:33:25] Speaker 04:
We have high-level defendants, high-level participants in this conspiracy who participated for years and years, and so the statistics take on a different meaning as to them, but it's not just about the statistics.

[00:33:39] Speaker 04:
We had individual witnesses who said,

[00:33:43] Speaker 04:
In effect, everybody knows.

[00:33:45] Speaker 04:
They couldn't testify to other people's knowledge, but they said it was talked about, it was a normal thing to talk about the drugs going to the United States, that high level, the highest level FARC leaders like Mano Hohoi gave, I mean this is a general commanding his troops essentially, gave the instruction that it was the policy of the FARC that the drugs would go to the United States.

[00:34:08] Speaker 05:
And the lab that Mr. Cuevas is charged with

[00:34:13] Speaker 05:
operating running whatever title you want to give him.

[00:34:16] Speaker 05:
What I found very confusing, what years we're trying to cover with this indictment and conviction, because there'd be one thing in the diamond, another thing in the jury, set of dates in the jury instructions, another set of dates in the new trial decisions by the district court.

[00:34:31] Speaker 05:
So what, how many years are we talking about?

[00:34:34] Speaker 05:
And how much, what was your evidence, taking the light in the most favorable to you, how much was coming out each year?

[00:34:39] Speaker 04:
That's a fair question.

[00:34:42] Speaker 04:
I think I had by the week that it was, in terms of how much was coming out, I don't have in front of me how many years specifically we were, we proved Mr. Cuevos was running that lab.

[00:34:54] Speaker 04:
I think it was a thousand kilograms a week was the number, if I remember correctly.

[00:34:59] Speaker 04:
for what the volume was.

[00:35:03] Speaker 05:
At some point it would just help me if I could just get clarified.

[00:35:05] Speaker 05:
It doesn't have to be this minute on what the years were that you were talking about here for the amount of operation, both for him and as to Martinez Vega, because I just, I found different dates almost everywhere I looked in trying to pin down the exact years of their issue here.

[00:35:18] Speaker 04:
Would that be something I'm not sure if I'm going to be able to do it at the table or not?

[00:35:21] Speaker 04:
Would that be something I could submit after the argument?

[00:35:24] Speaker 04:
I'd be happy to do that.

[00:35:25] Speaker 05:
Like I said, the jury instructions the judge gave, the time frame didn't seem to match the indictment, and then the new trial decision had different dates.

[00:35:31] Speaker 04:
Yeah, I mean, certainly it was a broad indictment also and covered a large number of people and a large number of fronts.

[00:35:36] Speaker 04:
Certainly multiple years.

[00:35:38] Speaker 04:
And multiple years in a large conspiracy.

[00:35:40] Speaker 04:
I'd also note, as to Mr. Cuevos himself, there was testimony that he walked in on a conversation where there was

[00:35:47] Speaker 04:
where there was specific reference to drugs going to the United States.

[00:35:51] Speaker 04:
So there's that even more specific level of detail as to him.

[00:35:57] Speaker 04:
There was also the money.

[00:36:00] Speaker 04:
that American money was being used routinely in millions of dollars and that it was the only currency other than pesos that was around.

[00:36:10] Speaker 04:
And I'd like to call one citation to the court's attention to the extent it's useful on this issue of what everybody knows and what a jury can infer from that.

[00:36:20] Speaker 04:
This court's case in US v. Gooch, 665, F3rd, 1318.

[00:36:25] Speaker 04:
And in that case,

[00:36:29] Speaker 04:
And we did not have that in our brief, and I apologize for that.

[00:36:33] Speaker 04:
But I found it the other day.

[00:36:34] Speaker 05:
In that case, the defendant was- Would you tell the other side you were going to cite that argument?

[00:36:38] Speaker 04:
I didn't.

[00:36:40] Speaker 04:
I didn't.

[00:36:41] Speaker 04:
Frankly, I can drop it if Your Honor would prefer.

[00:36:44] Speaker 04:
It's a case in which this court held that a jury could infer that a defendant had heard the rumors that were floating around.

[00:36:53] Speaker 04:
which is essentially the same here, that if something is widespread enough, if there are enough widespread rumors, that the jury can infer that that's the case.

[00:37:02] Speaker 04:
It's an argument that was captured, I think, in Martinez anyways, that a high-level supervisor or, frankly, any participant can be – it is reasonable to infer that that person knows what everybody around them knows.

[00:37:18] Speaker 04:
If there are no other questions on sufficiency, I'll turn to the summation.

[00:37:23] Speaker 04:
I would note that as for the rebuttal summation and the use of I, that was

[00:37:35] Speaker 04:
taken appropriately by the jury as we submit.

[00:37:40] Speaker 04:
In no instance did the prosecutor ever say I don't buy that and then move on as though the jury was supposed to take his word for it.

[00:37:47] Speaker 04:
It might have been better to say we submit as opposed to I, but in context I'd point out that nobody objected.

[00:37:55] Speaker 04:
Defense counsel certainly as they were sitting there did not

[00:37:59] Speaker 04:
jump up and say this is improper and the prosecutor is vouching.

[00:38:04] Speaker 05:
The prosecutors know they're not supposed to be using an I. I think prosecutors do know that.

[00:38:12] Speaker 04:
You heard my adversary stumble to come out with alternatives for explaining to the jury.

[00:38:18] Speaker 05:
I didn't think he stumbled.

[00:38:19] Speaker 05:
I thought he had very good ones.

[00:38:21] Speaker 05:
The evidence shows.

[00:38:22] Speaker 05:
That's not what the evidence shows.

[00:38:23] Speaker 05:
This evidence shows.

[00:38:24] Speaker 05:
That one is said.

[00:38:25] Speaker 05:
That one is said.

[00:38:25] Speaker 05:
There's nothing stumbling about that.

[00:38:27] Speaker 05:
That's how you're supposed to do it.

[00:38:28] Speaker 04:
A couple of them sounded a little bit clunky to me, but I take Your Honor's point that there are better ways to do it than to say aye over and over in this context.

[00:38:36] Speaker 05:
So you're not suggesting the prosecutor just have to say aye to be smooth in their rhetoric, are you?

[00:38:40] Speaker 04:
No, no.

[00:38:41] Speaker 04:
There are better ways to do it.

[00:38:42] Speaker 04:
I agree, Your Honor.

[00:38:44] Speaker 04:
And in context, though, it wasn't the kind of thing that... The reason for not saying aye is because it has the possibility of inviting the jury to take the prosecutor's word for it.

[00:38:56] Speaker 04:
If there had been any whiff of that happening here, defense counsel would have popped up and said that's not allowable.

[00:39:03] Speaker 04:
They didn't, and that's, for one thing, that's what leads to plain error review.

[00:39:07] Speaker 04:
But on top of that, it tends to indicate the way that the jury in fact would have taken it, the way that everybody in the room took it, because the prosecutor followed immediately with the list of reasons and in the evidence for why it was.

[00:39:21] Speaker 05:
Well, do you have a view on the standard of review for the state, the prosecutorial statement about my city, Detroit, like yours?

[00:39:30] Speaker 05:
And then there was just a short, you know, it was a break, and there were no intervening proceedings, but it wasn't contemporaneous.

[00:39:37] Speaker 05:
And unless I'm missing something, I didn't say anything in your brief, it's unclear to me exactly whether that counts as sufficiently preserved.

[00:39:45] Speaker 04:
I'm not sure, Your Honor.

[00:39:46] Speaker 04:
I agree with you.

[00:39:47] Speaker 04:
In our brief, we did not argue that that's plain error review.

[00:39:50] Speaker 04:
I think for this case, given that it was the very end of the summation and then the first thing before the jury

[00:40:01] Speaker 04:
came back.

[00:40:03] Speaker 04:
For purposes of this case, I'm not sure that it's the law, but we didn't argue that the standard matters very much here.

[00:40:08] Speaker 04:
There was no prejudice.

[00:40:12] Speaker 04:
Frankly, the argument I think was fairly responsive to what the defense had done in their opening, and I think we may have

[00:40:20] Speaker 04:
shorted ourselves a little bit in our brief on what it was responding to.

[00:40:25] Speaker 04:
In our brief, we say it was responding to this refrain by the defense that the prosecutors were from New York City.

[00:40:31] Speaker 04:
It's actually more than that.

[00:40:33] Speaker 04:
If you look at the full quotation, the refrain from the defense in the opening was, this is a case from Columbia that you shouldn't care about.

[00:40:41] Speaker 04:
The defense opening was, this is a case

[00:40:44] Speaker 04:
involving basically the Republic of Columbia.

[00:40:46] Speaker 04:
Colombian witnesses, with the exception of very few prosecution witnesses.

[00:40:50] Speaker 05:
There's plenty of ways to get past that without talking about this is my hometown that's an issue jurors.

[00:40:57] Speaker 05:
The prosecutor shouldn't be saying that.

[00:40:59] Speaker 05:
I think that it's a crime committed against the United States of America, bringing massive amounts of drugs in here.

[00:41:04] Speaker 05:
Go on.

[00:41:06] Speaker 05:
I'm sure that they've got appropriate rhetoric to use at that point.

[00:41:09] Speaker 04:
I think that's right, Your Honor.

[00:41:10] Speaker 04:
I think the Detroit part probably could have been left out.

[00:41:15] Speaker 04:
I suspect it was a response to say, I'm not a New York City lawyer, as I've been accused of being, to let the jury know that

[00:41:24] Speaker 05:
He was a New York City lawyer.

[00:41:26] Speaker 04:
He's a New York City lawyer from somewhere else.

[00:41:27] Speaker 04:
I don't know if that's what he was trying to get across or not.

[00:41:32] Speaker 04:
There was certainly evidence that these drugs were flooding the United States and would have encompassed American cities.

[00:41:38] Speaker 04:
He drew his own as one of the three that he used as an example.

[00:41:44] Speaker 04:
I think throwing Detroit in was a mistake.

[00:41:47] Speaker 05:
Shouldn't be talking about his city, whichever it is.

[00:41:50] Speaker 04:
Shouldn't be talking about his city, although I think he said

[00:41:53] Speaker 04:
He said where he was going.

[00:41:55] Speaker 04:
The personalizing.

[00:41:56] Speaker 04:
I think saying New York City and District of Columbia, since New York City had been raised by the defense and District of Columbia is where we are, I think that was appropriate.

[00:42:06] Speaker 04:
And my city, Detroit, that would have been best left out.

[00:42:10] Speaker 04:
But this court has always deferred to the district court's judgment on whether or not there was any impact from that.

[00:42:17] Speaker 04:
I'm sorry, I see I'm over my time.

[00:42:19] Speaker 04:
If I could just finish the question and then I'll, or the response and I'll sit down.

[00:42:23] Speaker 04:
The district court, this court has always deferred to the district court on what the impact would be.

[00:42:26] Speaker 04:
And the district court here immediately said it was a single remark at the end of a very long trial that had focused exclusively on a drug conspiracy as had the summation

[00:42:38] Speaker 04:
and that the jury could not have been swayed by a single remark like that.

[00:42:54] Speaker 01:
Thank you.

[00:42:55] Speaker 01:
Thank you.

[00:42:56] Speaker 01:
I promise I'm going to address that instruction, Judge Unver, but may I have just a moment to talk about statistics?

[00:43:02] Speaker 01:
Because the statistics you have to look at are not if you have a kilogram of cocaine in the United States, at this time it was 90% likely that it came from Colombia.

[00:43:12] Speaker 01:
Rather the statistic is if you have a kilogram of cocaine in Colombia, there's a 50-50 chance it's going to the United States.

[00:43:20] Speaker 01:
And then if you look at the geographical distribution, I think I suggest that if there's cocaine

[00:43:26] Speaker 01:
being transported or produced in the eastern part of Columbia, that percentage goes up even more.

[00:43:33] Speaker 05:
We have tons and tons and tons and tons and tons being produced over years and years and years and years and years, and we just have to say what could a reasonable jury have found that five, that they knew that five kilograms of that was targeted for the U.S., hoped to get there?

[00:43:49] Speaker 01:
Actually, Your Honor,

[00:43:53] Speaker 01:
all of the, and this is dealing with Martinez Vega, all of the sort of conspirators, you know, the distributors that FARC provided the drugs to, all were from Brazil or Suriname, and in fact,

[00:44:07] Speaker 01:
the one person that testified that he had directly got drugs from Martinez Vega said, I told him they were going to Suriname, and Suriname, if you look at that chart... Brazil, drugs from Columbia to Brazil would end up in the US, maybe not the majority.

[00:44:20] Speaker 01:
Actually, if you look at that chart, the vast majority of drugs coming out of Brazil... The vast majority, fine, but again, tons and tons and tons over years and years and years, we only need five.

[00:44:30] Speaker 01:
You have to talk about what cocaine Martinez Vega or Mr. Cuevas were involved in.

[00:44:36] Speaker 01:
At any rate, my point is the statistics are not looked at from the point of view of cocaine.

[00:44:41] Speaker 01:
Once it's arrived in the United States, rather, it's cocaine in Colombia.

[00:44:45] Speaker 01:
Judge Ginsburg, with respect to the instruction at the end, I think there's a couple of problems with it.

[00:44:51] Speaker 01:
First of all, it starts off with thus.

[00:44:54] Speaker 01:
And that certainly is a reference, I think, to the language that comes before.

[00:44:58] Speaker 01:
And on those pages, the rest of that page, 729, 728, that's where you...

[00:45:06] Speaker 01:
It's at the beginning of the sentence.

[00:45:08] Speaker 01:
You referred me to the very bottom of 729.

[00:45:14] Speaker 01:
That's the instruction that says you should find him guilty.

[00:45:17] Speaker 01:
And then the next 730 is when you say you should find him not guilty.

[00:45:22] Speaker 01:
One of it is the thus.

[00:45:22] Speaker 01:
And if you look at all those paragraphs before that, those are all the ones that limit, that narrow down what a defendant has to do to be part of a conspiracy.

[00:45:32] Speaker 01:
My second point would be- Was this a jury of 12 lawyers?

[00:45:37] Speaker 07:
Is this a jury of 12 lawyers?

[00:45:39] Speaker 01:
No, that's precisely my point, because they wouldn't have known that unlawful in this case meant unlawful in the laws of the United States of America and not Columbia.

[00:45:50] Speaker 07:
You think the thus is the key here?

[00:45:52] Speaker 01:
No, I'm saying that's one of it.

[00:45:55] Speaker 01:
Because the problem is that this instruction sort of comes in there at the end.

[00:46:01] Speaker 01:
It is inconsistent, I suggest.

[00:46:04] Speaker 07:
with everything the judge has told him immediately proceeding.

[00:46:20] Speaker 01:
With all due respect, well first, it's the use of this word conspired because the judge has previously broken that up and said you have to show the existence of a conspiracy and then the defendant joined the conspiracy.

[00:46:36] Speaker 01:
And of course, the defendant's mens rea only applies to that second question.

[00:46:40] Speaker 01:
We didn't dispute there was a conspiracy, at least at the upper levels, to distribute and to the United States.

[00:46:48] Speaker 01:
But when you're talking about conspire here, I think what's happening is the judge is ramming them together.

[00:46:53] Speaker 01:
And I don't see anything in that that is necessarily inconsistent with the argument that the conspiracy that the defendant joined was to import, but that was one of the details of the conspiracy the defendant did not know.

[00:47:09] Speaker 01:
The one little, and I'm sure Mr. Redoretta may want to address this, actually that instruction with respect to Martinez Vega is even more problematic because it talks about finding the defendant conspired to import any amount of cocaine or to manufacture any amount of cocaine.

[00:47:28] Speaker 01:
And the indictment, of course, yes, but the indictment actually talks about manufacture or distribute.

[00:47:35] Speaker 01:
The problem is that there's no allegation that I think Mr. Martinez Vega manufactured.

[00:47:41] Speaker 07:
What's the problem with the indictment?

[00:47:43] Speaker 01:
No, it's not a problem with the indictment.

[00:47:44] Speaker 01:
The charge is in the alternative.

[00:47:47] Speaker 01:
It's to intend to distribute or it's to manufacture or distribute with the intent or knowledge.

[00:47:53] Speaker 01:
And it's in the alternative and the jury can find in the alternatives and we don't have a quarrel with that.

[00:47:57] Speaker 01:
But here he leaves out the second distribution.

[00:48:01] Speaker 01:
And for Mr. Martinez Vega,

[00:48:04] Speaker 01:
You know, he's not really telling them.

[00:48:06] Speaker 01:
He's really sort of telling them that nothing about the intent or knowledge.

[00:48:12] Speaker 01:
I'm sorry.

[00:48:12] Speaker 01:
What he's saying here, because Mr. Martinez Vega didn't manufacture any cocaine.

[00:48:18] Speaker 01:
He's the transporter of cocaine.

[00:48:21] Speaker 01:
It just says manufacture, not manufacture or distribute.

[00:48:27] Speaker 01:
In the indictment, not in this instruction at this point.

[00:48:34] Speaker 01:
In the not guilty, but in what he's telling them in the paragraph immediately before that you referred me to, and the problem is that has the knowledge element.

[00:48:47] Speaker 05:
What about 1717?

[00:48:48] Speaker 05:
That is, the government must prove that defendant knowingly associated himself with others in the conspiracy and participating in the conspiracy to import cocaine into the United States knowing or intending that it would be imported into the United States.

[00:49:05] Speaker 05:
You can get manufacture and distribute again.

[00:49:07] Speaker 01:
Well, you know, I just .

[00:49:10] Speaker 01:
.

[00:49:10] Speaker 01:
.

[00:49:10] Speaker 01:
I understand the argument that somehow that can be construed as an explicit statement of defendant's mental state.

[00:49:16] Speaker 01:
I respectfully suggest, given the other instructions that the judge has given about the defendant does not have to know all the details, that they can conclude, a juror could reasonably have concluded that Mr. Martinez-Vega or Mr. Cuevas

[00:49:31] Speaker 01:
entered into a conspiracy.

[00:49:34] Speaker 01:
That conspiracy happened to be one to import into the United States, but that was a detail of the conspiracy that they did not know.

[00:49:42] Speaker 01:
And for that reason we believe the instruction was faulty.

[00:49:52] Speaker 03:
Briefly, if I may.

[00:49:55] Speaker 03:
Regarding the closing argument, the example of, I think the best example of

[00:50:02] Speaker 03:
a prosecutor taking an argument and pointed at a defense counsel, an officer of the court, came in this case with the PowerPoint slide that was presented.

[00:50:15] Speaker 03:
And the PowerPoint slide was a slide that talked about one of the witnesses, in this case the cook that was at the lab, the female, and how

[00:50:27] Speaker 03:
The defense had objected to some of her testimony, which, if I'm correct, dealt with her listening to conversations in the lab.

[00:50:36] Speaker 03:
In the PowerPoint slide that was presented at closing, there was specific mention made that this was brought into the case over defense objection.

[00:50:48] Speaker 03:
Now, take away PowerPoint, take away technology.

[00:50:52] Speaker 03:
There's no district court judge that would allow a defense attorney or a prosecutor to say, hey, this is really good evidence.

[00:50:58] Speaker 03:
And you heard opposing counsel object to it, and the judge gave it the okay.

[00:51:01] Speaker 03:
So you should really listen to this.

[00:51:03] Speaker 03:
The PowerPoint slide is a perfect example of that, except it's not an argument made.

[00:51:09] Speaker 03:
It's look at my PowerPoint.

[00:51:11] Speaker 03:
This is a good witness, and you have that little factor at the end.

[00:51:16] Speaker 05:
What's the prosecution supposed to do, though, by putting in an ellipsis right between the key question and the key answer, which might cause the jury to be confused and think the government's leaving something out.

[00:51:27] Speaker 05:
So they just said, look, here's the verbatim transcript.

[00:51:29] Speaker 05:
There's nothing inflammatory.

[00:51:30] Speaker 05:
Objection overruled for the same reasons.

[00:51:32] Speaker 05:
That's all it's reproduced there.

[00:51:36] Speaker 05:
Why isn't that acceptable?

[00:51:40] Speaker 03:
Because we wouldn't be able to say it verbally.

[00:51:44] Speaker 05:
Say what verbally?

[00:51:45] Speaker 03:
We wouldn't be able to tell the court, hey, we wouldn't be able to tell the jury.

[00:51:50] Speaker 03:
We had that question.

[00:51:52] Speaker 03:
This was the answer.

[00:51:53] Speaker 03:
And even though there was an objection, that answer stood.

[00:51:56] Speaker 03:
If we were to argue to the jury, we would be saying that.

[00:52:01] Speaker 03:
If we were to argue to the jury what that power point.

[00:52:03] Speaker 05:
What's the government supposed to do?

[00:52:05] Speaker 05:
For obvious reasons, they don't want to put an ellipsis in.

[00:52:07] Speaker 03:
Remove it.

[00:52:07] Speaker 05:
No, this is the key testimony.

[00:52:10] Speaker 05:
Did you ever hear people at the laboratory discussing where the cocaine was going?

[00:52:14] Speaker 05:
Yes, they said it was being taken to the United States.

[00:52:17] Speaker 05:
I can understand why the government wanted to put that up on a slide in front of the jury.

[00:52:22] Speaker 05:
And so their two options were to reproduce it as it was in the PowerPoint slider or to throw an ellipsis in through the objection.

[00:52:28] Speaker 05:
But the objection was on record.

[00:52:30] Speaker 05:
The jury had already heard it.

[00:52:31] Speaker 05:
And for an ellipsis, for obvious reasons, can the jurors go, what are they leaving out?

[00:52:37] Speaker 03:
But what they're leaving out is what should not be there.

[00:52:40] Speaker 03:
We should not be discussing whether or not a judge accepted or denied an objection.

[00:52:46] Speaker 05:
No one's discussing it.

[00:52:47] Speaker 05:
They're just reproducing what the jurors already heard.

[00:52:51] Speaker 03:
But I would argue the jury shouldn't be submitted to that.

[00:52:54] Speaker 03:
Because if I were to say that rather than present a PowerPoint slide, the judge and prosecutor would say objection.

[00:53:02] Speaker 03:
What are you talking about an objection before, whether it was sustained or overruled?

[00:53:08] Speaker 07:
It was on the record, was it, in front of the jury?

[00:53:12] Speaker 03:
Yes.

[00:53:17] Speaker 03:
I see my time is up.

[00:53:18] Speaker 03:
Thank you.

[00:53:19] Speaker 07:
By the way, is the slide in the materials you provided?

[00:53:22] Speaker 07:
I did not see it.

[00:53:26] Speaker 03:
I don't know.

[00:53:27] Speaker 07:
I don't know if we have that in the... Is it available to you?

[00:53:32] Speaker 04:
i believe we may have it in our words your colleague uh... i think uh...

[00:53:53] Speaker 06:
We can start with the individual issues.

[00:53:56] Speaker 01:
Yes, now I'd like to address three individual issues involving Mr. Martinez Vega, perhaps again if I could reserve a couple, two minutes let's say for rebuttal.

[00:54:06] Speaker 01:
I'd like to first of all talk very briefly about the sentencing issue because I think it's the most finite issue and that has to do with the question of whether or not the government had to prove

[00:54:19] Speaker 01:
in order to get the enhancement as a manager supervisor, whether the government had to prove that the participants had the same mens rea.

[00:54:28] Speaker 01:
And I suggest that's what the case law in this jurisdiction says, and that mens rea in this case, if we've just been arguing about, certainly is that they would have also had to know or intend that the drugs are going to the United States.

[00:54:39] Speaker 01:
And of course, there's absolutely not a shred of evidence that the people that worked on the boats with Mr. Martinez would have known anything about that.

[00:54:47] Speaker 01:
The government in its brief makes what I think is a relatively novel argument in page 94 that, well, they don't have to have participants.

[00:54:55] Speaker 01:
It's enough if the conspiracy is an extensive one.

[00:54:59] Speaker 01:
And as I tried to argue in my reply brief at page 38, that's not the law here.

[00:55:05] Speaker 01:
You still need to have a participant.

[00:55:09] Speaker 01:
And a participant as defined in the law is someone that shares the same mens rea.

[00:55:14] Speaker 01:
So in our view,

[00:55:17] Speaker 01:
the trial judge aired as a minimum in computing the sentencing guidelines.

[00:55:22] Speaker 01:
The question of a minor role in a huge, you know, conspiracy encompassing the entire nation is another issue that's

[00:55:32] Speaker 01:
I've been before the court on another case I have and doubtly will come up again on others I have when you bring these indictments that charge entire cartels or entire terrorist groups.

[00:55:44] Speaker 01:
If I can talk about, unless you have questions.

[00:55:46] Speaker 05:
Your brief had said they had to have the exact same mens rea.

[00:55:50] Speaker 05:
they had to, that the subordinates would have to know or intend that the cocaine be headed for the United States.

[00:55:58] Speaker 05:
And I didn't, I thought our cases said otherwise, and that is enough that they have some culpability in the charged crimes, but it doesn't have to be the exact same mens rea crime, but maybe even conspiracy, just producing cocaine would be sufficient.

[00:56:16] Speaker 01:
Well, with all due respect, Judge, I don't reach your cases that way.

[00:56:21] Speaker 01:
I mean, I think they talk about the same mens rea and the mens rea in this case.

[00:56:25] Speaker 01:
I mean, yes, if you could show that .

[00:56:28] Speaker 05:
.

[00:56:29] Speaker 05:
.

[00:56:29] Speaker 05:
They were aiding and abetting.

[00:56:38] Speaker 01:
They still have to have the mens rea, though.

[00:56:41] Speaker 05:
They were just another participant.

[00:56:43] Speaker 05:
They were involved in culpable conduct as part of the conspiracy.

[00:56:46] Speaker 05:
So they were, like I said, manufacturing cocaine.

[00:56:49] Speaker 05:
Why would that be?

[00:56:50] Speaker 01:
But what makes them culpable for a charge in this courthouse is either the intent or the knowledge to import cocaine into the United States.

[00:57:02] Speaker 05:
In this case, that's all it...

[00:57:05] Speaker 01:
Yes.

[00:57:06] Speaker 01:
Now, I mean, technically, if you could – if the government could have shown that Mr. Martinez intended the drugs to go to the United States and the workers only knew the drugs were going to the United States, I'm sure that would be sufficient.

[00:57:19] Speaker 01:
But of course, we have absolutely no knowledge whatsoever as to what – He said in U.S.

[00:57:22] Speaker 05:
v. BAPAC.

[00:57:23] Speaker 05:
It is enough that the participants she supervised were culpably involved in uncharged crimes that were part of the same course of conduct or common scheme or plan as the offense of conviction.

[00:57:36] Speaker 05:
So that wouldn't require that they have the import intent.

[00:57:40] Speaker 01:
Well, it's a novel issue, Your Honor.

[00:57:42] Speaker 01:
I think the plain language of the other cases I've cited is that they need to have

[00:57:48] Speaker 01:
the same mens rea.

[00:57:50] Speaker 01:
It's a novel issue and you may conclude to the opposite, but I respectfully suggest that what makes this a crime that's punishable in the United States of America is this whole importation and that participants have to share that.

[00:58:05] Speaker 01:
If they're just simply violating the law in Colombia, that's unlawful conduct, but it's not unlawful in the United States of America.

[00:58:14] Speaker 01:
I do want to talk about

[00:58:16] Speaker 01:
the two issues concerning the government's false testimony by Agent Garrido and the question about the photograph involving Angel Leopoldo Lopez.

[00:58:29] Speaker 01:
With respect to Garrido, I hope I don't have to make an argument that one of Garrido's

[00:58:36] Speaker 01:
two instances of testimony was false.

[00:58:39] Speaker 01:
And the question that I think that we have really is okay.

[00:58:46] Speaker 01:
It was false.

[00:58:47] Speaker 01:
We now know it's false because out of the presence of the jury, but after he already testified before the jury, Garrido admits he has absolutely no recollection whatsoever of what he had just testified to you that morning.

[00:59:01] Speaker 01:
The question then becomes, what's the remedy?

[00:59:03] Speaker 01:
The government wants to argue, well, Mr. Gilbert, you found out belatedly, but you found out that he didn't know this, and so it's your responsibility to call him back to the stand.

[00:59:14] Speaker 01:
And I respectfully suggest that that's not the case.

[00:59:17] Speaker 01:
The government doesn't get a pass just because they don't raise an issue on direct examination with their agents, because this is testimony about the agent's conduct of the investigation.

[00:59:29] Speaker 01:
In that sense, he's still the government's witness.

[00:59:32] Speaker 01:
And let me give you an example.

[00:59:34] Speaker 01:
The Jinx Act, for example.

[00:59:36] Speaker 01:
The Jinx Act says you don't have to give the defense the statements of a witness until after the witness isn't testified on direct examination.

[00:59:43] Speaker 01:
The implication is that if I get a statement that directly contradicts what the witness says, then I get, you know, now I have it and now I get to say, okay, but isn't it true that you said this to the special agent?

[00:59:57] Speaker 01:
And if the witness does, like Miss Ortiz did about everything else, I don't remember, I don't remember, I don't remember, then the implication is that I then get to call the special agent to say, didn't she tell you that?

[01:00:10] Speaker 01:
The government doesn't get a pass so that that agent is free to come in and lie about that.

[01:00:16] Speaker 01:
They're still, they're the ones that have met with him, they're the ones that have talked with us about it.

[01:00:21] Speaker 05:
I mean, aren't you being satisfied as long as you get to bring the information out on cross-examination?

[01:00:27] Speaker 05:
Is there any obligation in your hypothetical for the government to stand up and say our person was lying, as opposed to you bringing it out on cross-examination?

[01:00:37] Speaker 05:
I thought that was a district court's point here.

[01:00:38] Speaker 01:
No, what I guess what I'm trying to say, and just analogize it to the Jinx Act, is that I think the implication is there will be times

[01:00:46] Speaker 01:
when the defense has to call the government agent in order to make use of the Jenks material because the witness is denying it or claiming not to remember.

[01:00:56] Speaker 01:
My argument is when I do that, as I did in this case with respect to other aspects of Ms.

[01:01:01] Speaker 01:
Ortiz's testimony,

[01:01:03] Speaker 01:
He's still the government agent testifying about his investigation of the case.

[01:01:08] Speaker 01:
He doesn't get a pass to lie.

[01:01:10] Speaker 05:
I understand that no one says anybody gets a free pass to lie in court, especially not government witnesses or government officials, but the question that you teed it up is what is the remedy here and does the Constitution require that they get up and say mea culpa or submit a stipulation to the jury that says mea culpa or is it sufficient under the Constitution that you have the information about

[01:01:33] Speaker 05:
the credibility problem and that you have every opportunity to bring it out of the guy.

[01:01:38] Speaker 01:
Well, you know, that's the every, I do believe the first part of your question is that no, I believe that they're required to correct, to correct the false testimony.

[01:01:48] Speaker 01:
All right?

[01:01:49] Speaker 01:
And so they could have done it by a stipulation.

[01:01:52] Speaker 01:
I proposed a stipulation.

[01:01:54] Speaker 01:
They rejected it and Judge Hogan didn't make them do it.

[01:01:57] Speaker 01:
That's why I cited in my 28-J letter the Straker case, which decided by this court, in which you found an instance of false testimony was not harmful error, precisely because a jury teed it up.

[01:02:10] Speaker 01:
the stipulation teed it up for the jury to understand and teed it up for the government, I mean, for the defense counsel to argue.

[01:02:17] Speaker 05:
It's certainly a way of remedying it.

[01:02:18] Speaker 05:
I think what you have to do to prevail, if I'm wrong, is give us a basis for holding that the Constitution requires that route, stipulation route, or government standing up in court and confessing the problem.

[01:02:32] Speaker 05:
And it is not sufficient under the Constitution.

[01:02:37] Speaker 05:
If you're given the information,

[01:02:39] Speaker 05:
time and opportunity to bring the information out yourself.

[01:02:42] Speaker 05:
I just didn't see cases saying that part of it, and I understand why one might want to say the government has to take ownership of its lying officials, but I didn't see cases saying that that remedy is constitutionally compelled.

[01:02:57] Speaker 01:
Well, I think that's because that's what's assumed to be the remedy.

[01:03:00] Speaker 01:
That's the language that the Supreme Court has used all the way from that poo down, the government's obligation to correct.

[01:03:07] Speaker 01:
But I think there's two problems that's worth talking to very briefly.

[01:03:10] Speaker 01:
One, the chronology here is different than before.

[01:03:15] Speaker 01:
That's because the government did not disclose this purported identification.

[01:03:19] Speaker 01:
So we have a hearing on it, only on Ortiz's identification, only after Garrido gets on the stand and says, yes, it happened.

[01:03:29] Speaker 01:
And so all of a sudden, I'm at least entitled to a suppression hearing.

[01:03:32] Speaker 01:
And sure enough, at the suppression hearing, after he's already been on the stand, then all of a sudden, I learn that Garrido has testified.

[01:03:40] Speaker 01:
Now, he's already off the stand now.

[01:03:42] Speaker 01:
All right?

[01:03:44] Speaker 01:
This is now speaking as a trial lawyer.

[01:03:47] Speaker 01:
And, you know, I just hope you'll understand this if you haven't been in these shoes.

[01:03:51] Speaker 01:
You do not want to call, as your witness, if you don't have to, someone like Frank Garrido.

[01:03:58] Speaker 01:
Because Frank Garrido has already shown, you're going to hear about this whole Mincho business.

[01:04:03] Speaker 01:
You saw in his testimony that Garrido slips in that he got the photographs from the Bureau of Prisons.

[01:04:09] Speaker 01:
Now that's actually not even true, but I didn't want to emphasize that because he was in the custody of the Marshals.

[01:04:15] Speaker 01:
But that's that Garrido was an extremely treacherous witness.

[01:04:19] Speaker 01:
If I have to call him,

[01:04:21] Speaker 01:
I can't cross-examine him.

[01:04:23] Speaker 01:
I have to ask him non-leading questions.

[01:04:25] Speaker 01:
And the government, who's the one meeting with him, not me, gets to cross-examine him.

[01:04:29] Speaker 05:
I'm going to confess my lack of experience as a trial lawyer.

[01:04:32] Speaker 05:
Don't you get to say, can I treat him as hostile and then engage in the type of cross-examination type questioning that you want to?

[01:04:40] Speaker 01:
If I'd been able to persuade the judge of that,

[01:04:43] Speaker 01:
You know, maybe, but you know that's a discretionary ruling and we weren't getting a lot of those and if he rules against me... No, I didn't because I don't want Garrido near the stand again as my witness.

[01:04:57] Speaker 01:
I couldn't trust him, I didn't know what he was going to say and the government could on cross-examination get who knows what out.

[01:05:04] Speaker 01:
You know, oh no, I confuse it because I was thinking of other witnesses that identified your client that we just didn't bring up here.

[01:05:11] Speaker 01:
Objection, objection and they've heard that already.

[01:05:13] Speaker 01:
The government is the one to control Garrido.

[01:05:16] Speaker 01:
The government's the one that knew what the truth was.

[01:05:18] Speaker 01:
I mean, we now know based on... They learned it when you learned it.

[01:05:21] Speaker 01:
What?

[01:05:21] Speaker 08:
They learned it when you learned it.

[01:05:23] Speaker 01:
No, with all due respect, Judge, I think they knew it before.

[01:05:25] Speaker 01:
Because if you... What's in the record on that?

[01:05:27] Speaker 01:
Huh?

[01:05:28] Speaker 01:
I'm going to explain to you why you can infer that.

[01:05:30] Speaker 01:
All right.

[01:05:31] Speaker 01:
We now know in the end, you know, in the post-trial motions, the government basically takes the position that Garrido had no recollection.

[01:05:38] Speaker 01:
So, you know, as you sit here, the government in its post-trial pleading basically said the truth was Garrido didn't know, didn't remember.

[01:05:46] Speaker 01:
All right.

[01:05:47] Speaker 01:
But look at what happened at the time Garrido says, I believe I did.

[01:05:52] Speaker 01:
Now that was a huge surprise to me because remember the government had proffered after the surprise identification by Ortiz, which they had never proffered before.

[01:06:00] Speaker 07:
Maybe I'm misrecalling this.

[01:06:02] Speaker 07:
I thought that the next day the government reported to the court that it just seems that he just has no recollection one way or the other.

[01:06:15] Speaker 01:
I don't recall that.

[01:06:16] Speaker 01:
I recall, but this is what I do recall, Your Honor.

[01:06:20] Speaker 01:
In fact, you all asked for the transcript of the motion hearing that happened the day before the court.

[01:06:25] Speaker 01:
You might have asked for it for a different reason.

[01:06:27] Speaker 01:
But we're having a motion hearing about suppressing a brand new identification, which is Ortes and Paradeas looking at the boat across the car across the river video, as if that's an identification they're making for the first time.

[01:06:43] Speaker 01:
So even on that day, it's not disclosed to us that both of these witnesses are later going to testify, oh no, I identified something in Bogota.

[01:06:52] Speaker 01:
So it came as a complete surprise when Ortiz gets up and says, oh no, I identified your client as Chagiro in the office with Agent Garrido.

[01:07:03] Speaker 01:
Complete surprise.

[01:07:05] Speaker 01:
I go to the government and say, whoa, you never disclosed this.

[01:07:07] Speaker 01:
What's this coming from?

[01:07:09] Speaker 01:
The government tells me, we don't have any records of that.

[01:07:13] Speaker 01:
That's what they're saying.

[01:07:14] Speaker 01:
Now, presumably, they talk to Garrido.

[01:07:15] Speaker 01:
They had an obligation under the judge's orders to tell us about identifications.

[01:07:20] Speaker 01:
So presumably, they go back and talk to Garrido.

[01:07:23] Speaker 01:
And they make a representation, careful representation, that they have no records.

[01:07:28] Speaker 01:
All right, I make the assumption that means they can't show that it happened.

[01:07:33] Speaker 01:
Then Garrido gets up and says, I believe I did.

[01:07:36] Speaker 01:
And I, of course, pop up and I say, can we come to the bench?

[01:07:40] Speaker 01:
Where's this coming from?

[01:07:42] Speaker 01:
And that's when the government says to me, well, go ahead and cross-examine him.

[01:07:45] Speaker 01:
I think that'll be clear.

[01:07:47] Speaker 01:
And I say, well, OK, fine.

[01:07:49] Speaker 01:
I'll do that.

[01:07:50] Speaker 01:
And then, of course, then I ask him directly, and he answers directly.

[01:07:54] Speaker 01:
And we go through a whole series of unequivocal answers about how he conducted that and what photographs were shown.

[01:08:01] Speaker 01:
But I believe at that point, I probably should have been aware.

[01:08:06] Speaker 01:
I certainly was suspicious, but did I know

[01:08:09] Speaker 01:
at that time that Garrido was going to testify subsequently under oath that he had no recollection whatsoever about that.

[01:08:17] Speaker 01:
Because if that's what he says, and he says it in front of the jury, that's a huge asset for me.

[01:08:24] Speaker 01:
Because then I can argue to the jury, look, it didn't happen.

[01:08:27] Speaker 01:
Because if it had happened, Garrido would have remembered it.

[01:08:31] Speaker 01:
But that's not what he does in front of the jury.

[01:08:33] Speaker 01:
I think the question that you need to confront, and I guess we're not going to get to Leopold Lopez, the question you have to confront is when that happens.

[01:08:41] Speaker 01:
And it happens, I don't remember anything, happens after he's already been before the jury, then whether or not the responsibility is still on me to have to call this problematic witness back when it is truly, in our view and under the case law, the government's responsibility.

[01:09:04] Speaker 04:
I'll start, if I may, with the issue that we just left off on.

[01:09:10] Speaker 04:
There are a couple points to be made here.

[01:09:12] Speaker 04:
First of all, it's not at all clear.

[01:09:15] Speaker 04:
Actually, let me start with a different part on that.

[01:09:19] Speaker 04:
Special Agent Garrido's testimony, it is not at all clear, was false.

[01:09:24] Speaker 04:
It may well be that he did, in fact, show photos.

[01:09:29] Speaker 05:
Yeah, I believe I gave her some pictures, and then as soon as the jury said, I go,

[01:09:34] Speaker 04:
I don't know.

[01:09:35] Speaker 05:
It's true.

[01:09:36] Speaker 05:
Really?

[01:09:36] Speaker 05:
You're not defending that?

[01:09:39] Speaker 04:
Oh, I'm not saying that his testimony was, I guess I'm saying that his testimony itself was not false, in the sense that the actual fact at issue here, whether or not Ortiz was shown photos, she very likely was.

[01:09:51] Speaker 04:
His testimony was not just, he said, I have no specific recollection of having shown photos to her, but I was showing photos to everyone, was his testimony.

[01:10:00] Speaker 04:
Her testimony is, I was shown photos.

[01:10:02] Speaker 04:
She actually didn't say who showed them to her.

[01:10:04] Speaker 05:
It just struck me as,

[01:10:06] Speaker 05:
I mean, Mr. Grito time and again in this case shows up and just miraculously says whatever it is the government seems to want.

[01:10:12] Speaker 05:
This helps the government's case at that time, and he's done it a couple of times in this case.

[01:10:16] Speaker 05:
And this one was outrageous to get up there and say, yeah, I think I did it to a jury when he said he knew

[01:10:22] Speaker 05:
He had no actual recollection of what he'd done.

[01:10:26] Speaker 04:
I think, frankly, his memory evolved on it, and I think the record reflects that the government learned about this at the same time the defensive.

[01:10:35] Speaker 04:
This is not a witness who was prepped on this.

[01:10:38] Speaker 05:
I've got that.

[01:10:38] Speaker 05:
You all didn't call him, at least.

[01:10:41] Speaker 05:
We didn't call him.

[01:10:42] Speaker 05:
for good reason we're calling him on this issue.

[01:10:45] Speaker 05:
The question then is, you know, it's not like the government wasn't doing anything.

[01:10:50] Speaker 05:
Ortiz was your witness.

[01:10:51] Speaker 05:
You drew out this question.

[01:10:53] Speaker 05:
You got her to say that, yes, she got, see, I don't mean you personally, I can't remember who handled it, but the government got her to say, talk about this identification.

[01:11:02] Speaker 04:
We didn't actually.

[01:11:02] Speaker 04:
I believe that came out from the defense.

[01:11:04] Speaker 04:
I think it was defense questioning.

[01:11:06] Speaker 04:
I think they anticipated the answer, no, I've never made any other idea, I'm just doing the one here in court, and they got the answer, oh no, I was shown some pictures.

[01:11:14] Speaker 05:
What is going on with this whole thing, though, that

[01:11:17] Speaker 05:
I mean, ordinarily, you know, identifications, there's a lot of procedures that go around identifications.

[01:11:22] Speaker 05:
There's a recognition that identification either helps the government or helps the defense.

[01:11:27] Speaker 05:
You keep records of these things.

[01:11:29] Speaker 05:
There's all these rules about who's supposed to be in the array.

[01:11:31] Speaker 05:
And there's plenty of other times in this case when arrays were done the right way and records were kept.

[01:11:37] Speaker 05:
And then it seems, why is it that suddenly you have the situation where all these IDs are being done and none of the rules are being followed?

[01:11:47] Speaker 04:
I think the answer to that is because these were arrays being done at a very early stage for a very different purpose.

[01:11:52] Speaker 04:
This wasn't a bank robbery where you have a victim and you're showing an array and you're having the victim circle if there's an identification.

[01:12:01] Speaker 04:
There was testimony from

[01:12:04] Speaker 04:
from two other agents.

[01:12:05] Speaker 04:
I think the first one was Medina and the second was Dyer, and this happened out of the presence of the jury, where they explained what was going on.

[01:12:14] Speaker 04:
An agent in New York had a photo array created that involved this defendant's photo, and this is an array that the defense has.

[01:12:21] Speaker 04:
They've been given the array itself.

[01:12:24] Speaker 04:
It was provided and kept on file in Columbia, and any time that the DEA got access to one of these reinsertado witnesses for the first time, they would show them the array to see what they knew, to see, is this somebody who knows anything useful that we care about?

[01:12:38] Speaker 04:
Do you recognize anybody in here?

[01:12:40] Speaker 04:
And if they said yes, the testimony from these two agents was, okay, great, hold tight, somebody from the DEA is going to fly up here and find out here and talk to you at some point.

[01:12:49] Speaker 04:
It wasn't being done for the purpose that would create the records that Your Honor is talking about or the defense is talking about.

[01:12:57] Speaker 04:
Could it have been done that way, I suppose, but it was for a different procedure at a much different stage of the investigation on that subject.

[01:13:07] Speaker 05:
Just to be clear then, so there was times, because then there was testimony about these arrays being, evidence being shredded, these arrays being shredded and files, case files, material in case files being shredded.

[01:13:19] Speaker 04:
But again, I think that was a copy of an array they already had that hadn't been marked.

[01:13:24] Speaker 04:
So in the sense that there is this array in New York, there is this array in Columbia.

[01:13:27] Speaker 04:
It's being shown to people and then just put back in the file, shown to people, put back in the file.

[01:13:31] Speaker 04:
Especially in Corrido said he showed it to a number of witnesses.

[01:13:34] Speaker 04:
It was his routine practice to say, you know anybody in here.

[01:13:38] Speaker 04:
Special Agent Medina said the same thing.

[01:13:40] Speaker 04:
He would just show it to people and then phone back to New York and say, hey,

[01:13:43] Speaker 04:
this person knows, for example, Martinez Vega, you should talk to her, put back in the file.

[01:13:47] Speaker 04:
At some point, the one that was in the file got shredded.

[01:13:50] Speaker 04:
But it was not marked.

[01:13:51] Speaker 04:
It was not.

[01:13:52] Speaker 05:
It would be valuable, though, for a defense, if you're in an ongoing investigation of, I'm sure this must have been a massive investigation, if the people said no, and then you continued to use them anyhow, isn't that something that

[01:14:03] Speaker 05:
government agents should be keeping track of?

[01:14:05] Speaker 04:
That I don't know.

[01:14:06] Speaker 04:
That doesn't present itself in this case, and I take Your Honor's point on that, that if there had been a failure of an identification, that might be something that an agent should have made a note of, this person failed to identify.

[01:14:17] Speaker 05:
How do we know?

[01:14:18] Speaker 05:
How do we know who she picked on the array?

[01:14:21] Speaker 05:
I don't know.

[01:14:22] Speaker 05:
We don't have that array, so how do we know?

[01:14:25] Speaker 04:
I mean, she says she identified him.

[01:14:26] Speaker 04:
We know because she knows him.

[01:14:28] Speaker 04:
And Judge Hogan said, this is somebody who had encountered the defendant numerous times, knew him well.

[01:14:34] Speaker 05:
But she ID'd him in the courtroom, too?

[01:14:36] Speaker 04:
She ID'd him in the courtroom.

[01:14:37] Speaker 05:
But as a matter of practicing here, this seems very troublesome or worrisome to me that there are federal agents treating identification processes, which are, as they point out,

[01:14:50] Speaker 05:
good for you or good for us.

[01:14:52] Speaker 05:
There's sort of no in-between on this.

[01:14:54] Speaker 05:
It's going to be helpful if we need to keep records of these things for a reason, even if you don't think you'll need to use them affirmatively as part of your case, because it'll do an in-court ID.

[01:15:03] Speaker 04:
I agree, Your Honor.

[01:15:04] Speaker 04:
I think it might be a better practice for them to have at least kept a note that somebody had been identified or not been identified, that sort of thing.

[01:15:10] Speaker 04:
But it doesn't present itself.

[01:15:11] Speaker 05:
You need the array, right?

[01:15:12] Speaker 05:
They need to know

[01:15:14] Speaker 05:
You could have an array with arrows all pointing to one person saying this is the guy or everybody else looks nothing like him.

[01:15:21] Speaker 05:
I mean, there's all kinds of problems potentially with arrays.

[01:15:24] Speaker 04:
I suppose that's right, although the arrows would only be as good as the testimony of the agent who would say we didn't do that.

[01:15:31] Speaker 04:
You know, years later... Well, not if it's shredded.

[01:15:34] Speaker 04:
We have the array.

[01:15:34] Speaker 04:
Well, even if we had the array, we have the array that the agent hands over and says this is the array I used.

[01:15:38] Speaker 04:
So it's only as good as the credibility of the agent.

[01:15:41] Speaker 04:
And Judge Hogan credited these agents.

[01:15:44] Speaker 04:
This is not a case that involves issues like that, though.

[01:15:49] Speaker 04:
The fact that, for example, Ms.

[01:15:52] Speaker 06:
Ortiz had identified the defendant when she was first... I think you were near the end of your time, but given that untimely interruption, we'll give you a couple more minutes to collect your thoughts.

[01:16:06] Speaker 04:
Thank you, Your Honor.

[01:16:07] Speaker 04:
I hope not to need much extra time.

[01:16:12] Speaker 04:
I'd like to come back just to the issue of Special Agent Garita.

[01:16:17] Speaker 04:
He may not be a special agent.

[01:16:18] Speaker 04:
I think he was an intelligence analyst.

[01:16:22] Speaker 04:
Because I think he may have gotten a little bit of a bum rap in terms of how his testimony developed.

[01:16:27] Speaker 04:
And Your Honor had suggested that he seemed to say what the government wanted at any particular time.

[01:16:32] Speaker 04:
I think that's not an accurate characterization of how his testimony came out.

[01:16:36] Speaker 04:
He was called as a defense witness on this point.

[01:16:39] Speaker 04:
And it had, I don't think there's anything in the record that suggests he was prepped or had had his memory refreshed on the subject of whether he had ever shown Miss Ortiz photographs.

[01:16:54] Speaker 04:
And Miss Ortiz, in her testimony, had not specifically said that Mr. Guarido was the one.

[01:16:59] Speaker 04:
So there's no reason he would have been, anybody would have gone back and asked him how about that.

[01:17:03] Speaker 04:
And he said at first, I think I did.

[01:17:05] Speaker 04:
And as he subsequently explained, the reason he thought he did is because he was showing photographs to everybody.

[01:17:11] Speaker 04:
And then when Press Center further said yes, I did show her photographs.

[01:17:16] Speaker 04:
That's not, there's nothing from that.

[01:17:20] Speaker 04:
I think initially he said, I believe I did.

[01:17:22] Speaker 04:
And then after this sidebar to discuss everybody's surprise on that, he said, he was asked the questions.

[01:17:32] Speaker 04:
He showed her photographs and he said, yes.

[01:17:34] Speaker 04:
Then later on the stand in front of the district judge,

[01:17:39] Speaker 04:
with no jury there, having had his memory refreshed, having the government having had gone back to him on that subject, gave perfectly accurate and responsible testimony.

[01:17:50] Speaker 04:
As he did the first time, it just caught him by surprise.

[01:17:53] Speaker 04:
I don't think that's at all unusual.

[01:17:55] Speaker 05:
I believe I did.

[01:17:56] Speaker 05:
I had a copy of the photo array depicting your client.

[01:17:59] Speaker 04:
Yes.

[01:18:00] Speaker 05:
That's a bit more specific.

[01:18:02] Speaker 04:
But that's all true.

[01:18:03] Speaker 04:
He said he did have a... But it's specific.

[01:18:05] Speaker 05:
It's not just maybe.

[01:18:07] Speaker 04:
And I think even by the time his testimony developed in front of Judge Hogan, I think it would be fair to say, to characterize it as his saying, he believes he did, that he was showing it to everybody, but he had no specific recollection.

[01:18:19] Speaker 04:
His initial testimony in front of the jury was actually fully consistent with that.

[01:18:24] Speaker 04:
He was, I think, overly certain when the question was put to him a second time and he just said, yes, I did show her photographs.

[01:18:32] Speaker 04:
I would submit that's not uncommon for a witness who has been caught by surprise on something that happened years ago.

[01:18:38] Speaker 04:
He got it wrong in the sense that he was not that certain as it ultimately developed.

[01:18:45] Speaker 04:
I don't think he got it wrong in the sense that he never showed Ms.

[01:18:48] Speaker 04:
Ortiz photographs.

[01:18:50] Speaker 04:
The record is that Ms.

[01:18:51] Speaker 04:
Ortiz says she was shown photographs by somebody

[01:18:53] Speaker 04:
And Mr. Guerrero said, I showed them to everybody, essentially.

[01:18:59] Speaker 04:
I just don't have a specific recollection.

[01:19:01] Speaker 05:
Yes, although in the testimony he goes on to say, I didn't show this one, I didn't show this one, I didn't show this one.

[01:19:06] Speaker 04:
I think there were some.

[01:19:07] Speaker 05:
Not consistent with everybody.

[01:19:08] Speaker 04:
That's true.

[01:19:09] Speaker 04:
He didn't say everybody, but he said he was showing them routinely.

[01:19:11] Speaker 04:
And he explained that was the basis for my answer that I showed it to Ms.

[01:19:16] Speaker 04:
Ortiz is because that would have been consistent with my practice.

[01:19:19] Speaker 04:
So I think it's just the way the question caught him by surprise as a defense witness.

[01:19:23] Speaker 04:
On the subject of his being a defense witness, I don't think there was any need to convert him over to a hostile witness and start asking cross questions.

[01:19:31] Speaker 04:
He was already subject to being cross-examined by the defense.

[01:19:34] Speaker 04:
He had been called by the defense, but he was associated with the government, and so they were free to ask cross-examination questions from the get-go, much less if they'd wanted to call him back.

[01:19:43] Speaker 04:
They could have asked very tightly controlled,

[01:19:44] Speaker 04:
cross-examination questions.

[01:19:47] Speaker 04:
It's also worth noting that they never even asked for the remedy that they're asking for now, which is to have the government call him back.

[01:19:53] Speaker 04:
As far as I'm aware, they never said, okay, it shouldn't be us, it should be the government.

[01:19:56] Speaker 04:
It just escaped after Mr. Grito testified.

[01:20:00] Speaker 04:
I believe that was the end of it until there was a mistrial motion.

[01:20:04] Speaker 04:
I don't think there was a request.

[01:20:05] Speaker 05:
How much later was the mistrial motion?

[01:20:06] Speaker 04:
I'm sorry.

[01:20:07] Speaker 05:
How much later was it?

[01:20:08] Speaker 04:
I think it was mid-trial when Mr. Greta was still available, but I don't think there was any point where they said the government, you know, he has just testified.

[01:20:16] Speaker 04:
We've heard that he said something different.

[01:20:18] Speaker 04:
We would like that to come out.

[01:20:19] Speaker 04:
We would like the government to do it.

[01:20:20] Speaker 04:
I don't think they would have been in time.

[01:20:21] Speaker 05:
Was it the stipulation then, or?

[01:20:22] Speaker 05:
Because there were a lot of these photo array issues.

[01:20:24] Speaker 05:
What was it they said?

[01:20:25] Speaker 04:
The stipulation.

[01:20:25] Speaker 05:
Anything other than this trial or this?

[01:20:27] Speaker 04:
I think the stipulation went to the photo of the supposed other Chigiro and not on this.

[01:20:36] Speaker 04:
I don't believe there was a stipulation or at least a serious one that was ever offered.

[01:20:41] Speaker 04:
In any event, I think the cases are clear that if it's a circumstance where, well, first of all, the testimony wasn't necessarily false.

[01:20:50] Speaker 04:
It was just more certain of its truth than was probably warranted.

[01:20:54] Speaker 04:
But he may well have shown Ms.

[01:20:56] Speaker 04:
R.T.'

[01:20:57] Speaker 04:
's photos.

[01:20:57] Speaker 04:
Second, the government certainly didn't know it was fault.

[01:21:00] Speaker 04:
It discovered the truth of the matter at the same time the defense did.

[01:21:04] Speaker 04:
There is no case the defense can point to that says in that circumstance it's not good enough under the Constitution for the defense to be permitted to call the witness back and ask the question.

[01:21:14] Speaker 04:
If I could turn to the sentencing, which is the other point that my adversary discussed.

[01:21:21] Speaker 04:
I don't know the answer, Your Honor, to your question about whether or not culpability for purposes of a participant involves hitting every element of the conspiracy itself.

[01:21:32] Speaker 04:
I think the guidelines aren't especially clear on whether someone can be culpable and therefore a participant without being fully guilty of the charged conspiracy that the defendant was charged in.

[01:21:46] Speaker 04:
I don't think it matters much here.

[01:21:48] Speaker 07:
I don't stand to reason though, doesn't it?

[01:21:50] Speaker 07:
I mean, if the person is subordinate with respect to the crime charged, then presumably one would expect and perhaps require that they have shared in the same mental state.

[01:22:04] Speaker 04:
I think that's right, Your Honor.

[01:22:08] Speaker 04:
I think that if you're talking about supervising other members of the conspiracy, it could be reasonable to read the guidelines as saying that it's required that at least one of those people being supervised is a conspirator.

[01:22:19] Speaker 04:
is a part of the conspiracy with the mental state that's required.

[01:22:23] Speaker 04:
I don't think it matters here because it's so clear that it was satisfied.

[01:22:27] Speaker 05:
Can you help me then with respect to Martinez Vega?

[01:22:31] Speaker 05:
I know you had evidence submitted to the jury about his sort of high-level status, but I

[01:22:39] Speaker 05:
Can you point me in the record to the evidence that there was someone who was a subordinate who knew, as you've just said, well, except for this case, I had the intent and knowledge and participated in all the elements of this crime, because your brief said, oh, it was clear in the record, CEG, and both sites are at Equatus.

[01:22:58] Speaker 05:
And so I don't know what specific evidence.

[01:23:00] Speaker 05:
And there, you've got an employment situation, so it's a little bit easier.

[01:23:04] Speaker 05:
What evidence did you give to the jury specifically that one could cite for?

[01:23:09] Speaker 04:
I don't think we had, well, first of all, I'm not sure it's that strict a standard, but I'll get to that in a second.

[01:23:16] Speaker 04:
I don't think we had specifically, I think it is true that for Martinez Vega, we didn't have

[01:23:22] Speaker 04:
an individual who was subordinate to him, who either testified or was testified about specifically, who was identified.

[01:23:31] Speaker 04:
So we're not relying on that.

[01:23:33] Speaker 04:
We are relying on circumstantial evidence, including that numerous low-level employees throughout the organization testified, fart gorillas and a cook in the cocaine lab, and everybody said,

[01:23:52] Speaker 04:
American money was around, we knew it was going.

[01:23:54] Speaker 05:
It had to be the people he was charged with supervising.

[01:23:56] Speaker 04:
It did.

[01:23:57] Speaker 05:
It can't be that you had a lot of people talking generally about his stuff.

[01:24:00] Speaker 07:
So wasn't he charged with supervising Santiago?

[01:24:03] Speaker 04:
So that's Cuevas and I would say this is a much easier case for Mr. Cuevas because we actually had somebody who he supervised who said I knew the drugs were going to the United States.

[01:24:15] Speaker 04:
I don't want to suggest that we have that for Mr. Martinez-Vega.

[01:24:18] Speaker 04:
What we have is the expert testimony that

[01:24:24] Speaker 04:
drug that the FARC's drugs go to the United States in huge volume and then specific testimony from numerous people at all levels of the FARC organization who talk about how normal it was to have discussions about it, how openly it was discussed, how it was discussed by Mano Hohoi, again this general down to the troops explaining it to everybody

[01:24:50] Speaker 04:
From that, Judge Hogan did not commit clear error in finding by a preponderance of the evidence the standard being reduced for purposes of sentencing that at least one of the many people that Mr. Martinez-Vegas supervised while transporting

[01:25:05] Speaker 04:
while on this expedition.

[01:25:07] Speaker 05:
When I said higher standard, I didn't mean beyond preponderance for sentencing.

[01:25:11] Speaker 05:
What I meant was that you have stipulated for these purposes that they had to show that there was someone that he superintended that knew or intended that this cocaine was going to the U.S.

[01:25:25] Speaker 05:
And I think these sort of vague generalities without identifying whom you say he superintended.

[01:25:30] Speaker 05:
and how we know that those people were aware of all this.

[01:25:34] Speaker 05:
Because I think we said earlier, there could very well be a lot of people running around who just, low-level folks, I'm just moving stuff in a boat.

[01:25:43] Speaker 05:
And I don't know.

[01:25:44] Speaker 05:
I don't know that much about FARC.

[01:25:45] Speaker 05:
I'm just a subsistence-level farmer or something here in the rural lands of Columbia.

[01:25:50] Speaker 05:
I just don't know this.

[01:25:51] Speaker 05:
Unless your position is that sort of anybody who touched the FARC conspiracy had to know

[01:25:57] Speaker 05:
have no or intent which is a pretty high mens rea.

[01:26:02] Speaker 04:
So I think that the there was some specific evidence as to

[01:26:08] Speaker 04:
Again, not the identities of specific people that Mr. Martinez Vega supervised, but the group of them.

[01:26:15] Speaker 04:
One example of that is on this expedition where Mr. Martinez Vega and another individual went off and killed two members of a lab and took, I think it was, a thousand kilos of cocaine.

[01:26:28] Speaker 04:
Judge Hogan specifically relied on this at sentencing.

[01:26:32] Speaker 04:
Mr. Martinez Vega was described by the witness as having

[01:26:37] Speaker 04:
troops essentially, having his people who came with, who did this thing with him, and then who helped him move the cocaine to another place.

[01:26:44] Speaker 04:
We don't have the identities of those people, but it was sufficient by a preponderance, and again it wasn't clear error for Judge Hogan to have made the decision, the people who are involved in that level of activity for the FARC, who are going off and participating in killing people and moving FARC guerrillas, not

[01:27:04] Speaker 04:
not a cook at a lab who incidentally admitted she knew it was going to the United States and that everybody talked about it, but actual FARC guerrillas who were going with Martinez Vega under his control to do this thing and then carry away the drugs that at least one of them knew that the drugs were going to the United States for purposes of

[01:27:26] Speaker 04:
preponderance of the evidence and again this court's clear error review of Judge Hogan there were other circumstances where Mr. Martinez Vega was supervising people it was mostly involved in the transportation of drugs either on the boats or I think there was time when he came through with a group of people on trucks the idea that all of these people that all these people described as working for Martinez Vega not a one of them can we conclude by a preponderance the evidence knew that drugs were going to the United States when that fact

[01:27:55] Speaker 04:
is patently obvious, as described by the expert testimony.

[01:28:00] Speaker 04:
It is clear that the United States is the predominant market for Colombian cocaine.

[01:28:05] Speaker 04:
The idea that none of those people knew is not plausible, and it's certainly not clear error for Judge Hogan to have come out the other way.

[01:28:13] Speaker 07:
Mr. B, remind me, in your brief, did you contest

[01:28:17] Speaker 07:
the appellant's position that the subordinate, at least one subordinate, had to have the same mens rea?

[01:28:26] Speaker 04:
You know, I don't think we contested it.

[01:28:28] Speaker 04:
We speak to some extent about otherwise extensive, and I'm not sure we were very specific about what we meant by that.

[01:28:36] Speaker 04:
I think it is correct that otherwise extensive is a

[01:28:41] Speaker 04:
replacement for having five or more culpable participants, I don't think it's a replacement for having at least one person who is a culpable participant be supervised by the defendant.

[01:28:53] Speaker 07:
So I don't think if you had the defendant...

[01:28:56] Speaker 04:
And that's my point, is that if you had only otherwise extensive but not a single culpable participant who had the mens rea who was supervised by the defendant, I think that wouldn't be enough.

[01:29:07] Speaker 04:
I don't think we argued it would have been enough in the brief, although our brief is a little bit vague on that point.

[01:29:14] Speaker 04:
My point is that it was clear, and Judge Hogan was correct, that at least one of the many people supervised by Martinez-Vegan knew that the drugs were going to the United States.

[01:29:24] Speaker 04:
There were other issues that were going to be in this bucket of Mr. Martinez-Vegas, of his separate issues that weren't touched on.

[01:29:34] Speaker 04:
I'm happy to answer any questions if the court has any, but otherwise I've responded to the ones that they raised here today.

[01:29:41] Speaker 06:
Thank you.

[01:30:00] Speaker 06:
you know thank you for reminding me i'm sorry uh... you were out of time but i was actually going to give you two minutes

[01:30:13] Speaker 01:
I will try to be brief.

[01:30:14] Speaker 01:
A little bit about the history of the litigation concerning identifications.

[01:30:20] Speaker 01:
It's summarized at page, there's a motion I filed, second motion to dismiss.

[01:30:26] Speaker 01:
It's in the Joint Appendix at 1435.

[01:30:30] Speaker 01:
And I won't go through all the details, but let me just stress this is not as benign as Mr. Levy believes it is.

[01:30:37] Speaker 01:
because the government had a standing obligation to inform the defense of any identifications.

[01:30:44] Speaker 01:
They failed to do that with respect to Ms.

[01:30:47] Speaker 01:
Ortiz.

[01:30:48] Speaker 01:
Oh, they told us about something she's seen in the United States when she looked at the car video.

[01:30:54] Speaker 01:
And that was such, you actually have that transcript if you ask for it specially.

[01:30:59] Speaker 01:
So you have to assume, I think, in all fairness, that it was not a matter of surprise to Mr. Garrido once Ms.

[01:31:10] Speaker 01:
Ortiz said, oh no, I did identify him, that the government would in fact ask Mr. Garrido whether or not he showed pictures to her.

[01:31:19] Speaker 01:
And the government's response was, we have no records of that.

[01:31:24] Speaker 01:
And so it simply, unless people are completely incompetent, and I do not accuse Mr. Levy's colleagues of being incompetent, that Mr. Guerrero would have known that was an issue, would have been specifically asked about that by the government.

[01:31:41] Speaker 01:
So to just say, oh, well, you know, you're just confused and just surprised, I think is completely unfair and does not reflect the continued pressure by the defense, that is by me, to have these identifications disclosed.

[01:31:55] Speaker 05:
The only remedy you asked for was a mistrial?

[01:31:59] Speaker 01:
I think if you read that, you'll see that what happens is I filed that about a week later because the government was refusing to correct it.

[01:32:06] Speaker 01:
I don't know, I would have to look to- Did you ask from the district court a stipulation or- At some point I did and that stipulation was turned down.

[01:32:15] Speaker 05:
By the court or by the government?

[01:32:18] Speaker 01:
Well, the government wasn't going to do it and Judge Hogan didn't make them do it and I believe that's discussed.

[01:32:26] Speaker 01:
in the pleadings that we have.

[01:32:29] Speaker 01:
But it's just simply to say, oh, well, he just didn't know this was coming and was surprised.

[01:32:33] Speaker 01:
That's simply not true or shouldn't be true based on the government's own obligations to conduct this investigation.

[01:32:50] Speaker 02:
Thank you.

[01:32:50] Speaker 02:
Good morning.

[01:32:50] Speaker 02:
My name's Gary Seidel.

[01:32:52] Speaker 02:
With Mr. Rediretta, I also represented Mr. Cuevas at trial.

[01:32:56] Speaker 02:
I believe that we have a total of ten minutes for our individual issues, and I would like to reserve two for rebuttal and split equally the issues that I will deal with and that which Mr. Rediretta will deal with.

[01:33:14] Speaker 02:
As Judge Ginsburg noticed earlier,

[01:33:20] Speaker 02:
We made identification an issue in this case, indeed the issue in this case.

[01:33:26] Speaker 02:
More precisely, Mr. Cuevas was known as Mr. Cuevas, Erminso Cuevas Cabrera.

[01:33:33] Speaker 02:
He was never known as or used the alias of Mincho.

[01:33:39] Speaker 02:
In support of this, two and a half years before the trial, for the first time in writing, we ask for any and all defendant statements.

[01:33:49] Speaker 02:
None were received then.

[01:33:50] Speaker 02:
None were received throughout the course of the case, including the trial.

[01:33:58] Speaker 02:
I believe that Judge Bollett's characterization of Francisco Garrido was indeed accurate.

[01:34:06] Speaker 02:
He was a witness.

[01:34:08] Speaker 02:
who would say whatever he perceived the government wanted him to say.

[01:34:12] Speaker 02:
And he did.

[01:34:13] Speaker 02:
Indeed, I would analogize him to the Energizer Bunny prosecution witness.

[01:34:19] Speaker 02:
He kept on firing, irrespective of the questions that were asked, particularly of the prosecution, but also by us in cross-examination.

[01:34:28] Speaker 02:
He had what I would submit is an agenda.

[01:34:31] Speaker 02:
He was going to get out certain information.

[01:34:33] Speaker 02:
And indeed, the very first substantive question asked of him

[01:34:38] Speaker 02:
once he began to testify after he completed his 30-year law enforcement experience, first as a New York City police officer, followed by his then-current DEA employment, was, how many suspects have you interviewed?

[01:34:58] Speaker 02:
Hundreds, his answer was, followed by, how many suspects have you provided Miranda warnings to?

[01:35:04] Speaker 02:
Again, hundreds.

[01:35:05] Speaker 02:
And the very next question, which begins the troop down this problematic road, was, where were you on September 17th of 2007?

[01:35:16] Speaker 02:
His answer was, I was performing an extradition of Herminso Cuevas Cabrera, known as Mincho.

[01:35:26] Speaker 02:
We opposed Garrido's testimony in the first instance when it was proffered that he's only going to testify about the extradition of our client from Columbia to the United States.

[01:35:37] Speaker 02:
What we submitted then and what we submit now was totally irrelevant to the sole indicted charge conspiracy to import to the United States cocaine in an excess of five kilograms.

[01:35:48] Speaker 02:
Whether he got here on a 727 or a DC-9, it didn't matter.

[01:35:56] Speaker 02:
But not only was Garrido's testimony proffered as how he got here, but he would not say anything about any conversations.

[01:36:07] Speaker 02:
Juxtapose that proffer, Your Honor, with the first substantive question.

[01:36:12] Speaker 02:
How many people have you interviewed?

[01:36:15] Speaker 02:
Well, that's leading to a statement, the statement which ultimately says,

[01:36:20] Speaker 02:
Where were you?

[01:36:20] Speaker 02:
September 19, 2007.

[01:36:22] Speaker 02:
I was performing an extradition, and when I asked him what his name was, are you Mincho?

[01:36:28] Speaker 02:
For the first time, we have yes.

[01:36:31] Speaker 02:
What I would characterize as a confession.

[01:36:33] Speaker 02:
The first and only confession of the use of the alias Mincho with Herminso Cuevas Cabrera.

[01:36:41] Speaker 02:
Never before had we gotten anything in discovery, and we didn't get any of that in any Jenks material.

[01:36:47] Speaker 02:
for Garrido himself of five pages.

[01:36:50] Speaker 07:
Why didn't the judge strike that?

[01:36:55] Speaker 02:
That's the problem, Your Honor.

[01:36:57] Speaker 02:
We first have the prejudice with the volunteered statement, yes, in response to the question, are you mincho?

[01:37:06] Speaker 02:
Subsequently, because this came out of the blue, and as Mr. Retoeda said earlier in a slightly different context, we didn't want to start raising red flags about that.

[01:37:16] Speaker 02:
We had the tag team approach between prosecution and witness Erminso Cuevas Cabrera, also known as Mincho, a total of nine times throughout.

[01:37:27] Speaker 02:
over three pages.

[01:37:29] Speaker 02:
We had a bench conference.

[01:37:30] Speaker 02:
We opposed the disclosure for the first time of yes, a statement attributable by Garrido to the defendant, and the trial judge did provide an instruction.

[01:37:44] Speaker 02:
What we were informed would be a curative instruction.

[01:37:47] Speaker 02:
Well, contrary to this Court's strictures of both Foster and McClendon, it was an instruction that one,

[01:37:56] Speaker 02:
repeated the problem information, including three times reference to the alias Mincho.

[01:38:03] Speaker 02:
Two, it added, yes, I am Mincho, which was not Garrido's testimony.

[01:38:11] Speaker 07:
And three, there was a substance of it.

[01:38:14] Speaker 02:
Are you Mincho?

[01:38:14] Speaker 02:
Yes.

[01:38:16] Speaker 02:
The Garrido response simply was, are you Mincho?

[01:38:19] Speaker 02:
Yes, period for Garrido.

[01:38:22] Speaker 02:
The instruction by the trial court

[01:38:24] Speaker 02:
referenced, are you Mincho?

[01:38:26] Speaker 02:
Yes, I am Mincho.

[01:38:28] Speaker 02:
Nobody said, I am Mincho.

[01:38:33] Speaker 02:
That was compounded by the further problem we submit that the jury was given an explanation for why they were hearing this instruction to disregard, yes, I am Mincho, because it was due to a technicality.

[01:38:48] Speaker 02:
Now, the district court didn't say it's a technicality, but I submit the definition of technicality that was given was this was not provided before trial, and therefore I'm obligated to advise you ignore it.

[01:39:04] Speaker 02:
So unlike Foster, unlike McClendon,

[01:39:08] Speaker 02:
We have repetition of the problematic language.

[01:39:11] Speaker 02:
We have addition to the problematic language.

[01:39:14] Speaker 02:
And then we have something that does us, as defense attorneys, no good, I submit, because, well, I'm forced to tell you this, because the defendant's lawyers raised an issue.

[01:39:26] Speaker 02:
That is the problem.

[01:39:27] Speaker 05:
How many other people identified him as Mincho in the trial?

[01:39:31] Speaker 02:
Two of the government re-insertado witnesses.

[01:39:37] Speaker 02:
One being the cook at the lab, and the second being her brother, also at this... Do you have a courtroom identification?

[01:39:48] Speaker 02:
I don't recall.

[01:39:49] Speaker 02:
I don't recall now.

[01:39:54] Speaker 02:
But of the four Colombian witnesses, only those two referenced Mincho.

[01:40:01] Speaker 02:
Now there was no direct conversation between either of those witnesses and

[01:40:06] Speaker 02:
Mr. Cuevas, where Mr. Cuevas said, call me Mincho.

[01:40:13] Speaker 02:
The sister simply overheard, or what she believes to have been an overheard conversation more than six years before her testimony, where the nickname or the alias came up.

[01:40:25] Speaker 02:
We presented three Colombian witnesses, however, who said, we know him, or Minso Cuevas Cabrera.

[01:40:31] Speaker 02:
We've never known him to use or be known by the nickname of Mincho.

[01:40:36] Speaker 02:
These are people who had long-term dealings with Mr. Cuevas, the person who sold him his farm.

[01:40:43] Speaker 05:
But all this was presented to the jury, right?

[01:40:45] Speaker 05:
They had to believe one or the other.

[01:40:46] Speaker 02:
They did, but the problem I submit with Garrido's testimony, argumentio yes, is that that tips the scales in favor of the two Colombian witnesses who had no direct conversation with Mr. Cuevas, but who claim we knew him or we heard him identified by the alias.

[01:41:05] Speaker 05:
Just regarding what the judge told him to do.

[01:41:08] Speaker 02:
Well, Judge Mollett, I would submit that Garrido's volunteered information about yes,

[01:41:16] Speaker 02:
Are you mincho?

[01:41:17] Speaker 02:
It's tantamount to what we just experienced of a fire alarm going off in mid proceeding.

[01:41:24] Speaker 02:
You are not going to forget it, regardless of what cautionary instruction may be given.

[01:41:29] Speaker 02:
And the cautionary instruction in this case is far over the line, I submit, from Foster and from McClendon.

[01:41:37] Speaker 02:
It repeated the information.

[01:41:38] Speaker 02:
It added to the information.

[01:41:41] Speaker 02:
And then it provided what I would characterize as a basis for that instruction that did us no good.

[01:41:48] Speaker 02:
And Garrido's testimony was like a rapid-fire gun.

[01:41:53] Speaker 02:
He volunteered stuff, specifically this conversation, which we were expressly informed was not coming.

[01:42:02] Speaker 02:
Was not coming.

[01:42:03] Speaker 02:
And this is after two or three hours of witness preparation before he testified.

[01:42:09] Speaker 02:
And it's out there.

[01:42:10] Speaker 02:
And he is the only one who has come up with, the defendant said this is his alias.

[01:42:16] Speaker 02:
It is more problematic because he was the only 30-year law enforcement witness who provided any alias information.

[01:42:24] Speaker 02:
He was the only witness who did not have an immunity agreement in two separate countries for whatever he was about to say.

[01:42:32] Speaker 02:
He was the only witness who did not receive substantial financial benefits for that testimony.

[01:42:40] Speaker 02:
He was the only witness who was not electronically tethered to the prosecution in this case, an issue that Mr. Retiretta will address.

[01:42:50] Speaker 02:
And he was the only one who claims to have had face-to-face conversations.

[01:42:56] Speaker 02:
about the alias with Mr. Cuevas.

[01:42:59] Speaker 02:
I submit that all of those factors enhance what he intended to do, and that is make the sole connection of mincho as an alias with this particular defendant, something that no one else in the entire trial did.

[01:43:14] Speaker 02:
And indeed, at the very beginning of this case, we received thousands of wire taps with a mincho on the Colombian end of those taps.

[01:43:25] Speaker 02:
which ultimately we were informed wrong mincho, wrong person.

[01:43:31] Speaker 02:
So the government needed in this case to have some kind of connection with Hermenso Cuevas Cabrera must be mincho for their case to work.

[01:43:42] Speaker 02:
And the government witnesses who they produced

[01:43:45] Speaker 02:
were all never involved with testifying before, looking down at their feet, not looking at the jury, were timid, didn't remember a lot of questions.

[01:43:56] Speaker 02:
And indeed, none of these government witnesses from Colombia ever volunteered this information about Mincho being Mr. Cuevas Cabrera to any law enforcement officer, either in Colombia or in the United States.

[01:44:11] Speaker 02:
It was only after they were contacted, years after the fact,

[01:44:15] Speaker 02:
by law enforcement and were specifically asked about it, did this information first come up?

[01:44:22] Speaker 02:
Years after the fact.

[01:44:25] Speaker 02:
I submit that not only was there a less than prompt cautionary instruction, and this was after three pages of testimony, after three pages of a bench conference, we have the cautionary instruction which we didn't find out in terms of particulars about until we heard it, and that exacerbated the problem.

[01:44:45] Speaker 02:
This was on Thursday, March 4, 2010.

[01:44:49] Speaker 02:
On Monday morning, early, March 8, 2010,

[01:44:56] Speaker 02:
A written motion for mistrial was filed in large part because of the problematic cautionary instruction, ultimately, that we heard.

[01:45:06] Speaker 02:
And the testimony was at the end of the trial day on the prior Thursday.

[01:45:12] Speaker 02:
Obviously, the Court's aware that that motion for mistrial was denied, which is what gets us here on this particular issue.

[01:45:18] Speaker 02:
I would submit that it was prejudicial and that there was no instruction that's going to unring that bell

[01:45:26] Speaker 02:
in the minds and ears of the jurors in terms of the alias is being equated with the person seated in the courtroom.

[01:45:49] Speaker 03:
Manuel Retorett on behalf of Mr. Cuevas.

[01:45:51] Speaker 03:
I have three issues that I'd like to speak to, and with the Court's permission, I'd just like to, unless the Court wishes, I'd like to start off with the tether that Mr. Seidel just referenced, which was the confrontation issue dealing with the ankle bracelet.

[01:46:08] Speaker 03:
perspective of a trial attorney in court watching this happen, it was extraordinary.

[01:46:14] Speaker 03:
I was the one that actually saw the first sign of the bracelet.

[01:46:19] Speaker 03:
It manifested itself in a pant leg being a little bit fuller than the norm.

[01:46:24] Speaker 03:
And the court is now aware, given our submissions and the appendix, what happened after that.

[01:46:32] Speaker 03:
The core of this is I couldn't ask him about bias.

[01:46:37] Speaker 03:
or I couldn't ask any of the others who were wearing that ankle bracelet about bias.

[01:46:42] Speaker 03:
I couldn't confront them on very basic issues such as are you receiving a benefit from the government?

[01:46:52] Speaker 03:
Have you been housed by the government?

[01:46:55] Speaker 03:
Have they paid for your meals?

[01:46:57] Speaker 03:
Things like that.

[01:46:57] Speaker 03:
No, by the way, are you electronically attached to the government that has brought you to this country that has a

[01:47:06] Speaker 03:
close bilateral relation with the government that you are now serving and being monitored by in Columbia.

[01:47:17] Speaker 03:
It was a denial of witnesses that proved crucial to the government, a denial to ask them what they were thinking, and at least offer the jury the opportunity

[01:47:32] Speaker 03:
to think about whether this person that is now officially under the instructions classified as a cooperator, whether now this person has an extra level of thought that should be provided when they analyze that testimony.

[01:47:52] Speaker 03:
We made requests.

[01:47:54] Speaker 03:
The requests were for discovery.

[01:47:57] Speaker 03:
We wanted discovery as to what this was all about.

[01:48:01] Speaker 03:
who attached those bracelets, what they actually thought.

[01:48:05] Speaker 03:
We actually asked the district court judge to allow us to question outside the presence of the jury what the witnesses' impressions of what that bracelet meant.

[01:48:19] Speaker 03:
I mean, the explanations from the government ranged from it is something that is applied just in case they get lost to the sinister of

[01:48:30] Speaker 03:
This is a very bad situation that they're in and people could actually kill them.

[01:48:35] Speaker 03:
But the defense does not have that.

[01:48:38] Speaker 03:
We cannot ask, we were not able to ask, and we did not have the ability to elicit in front of the jury what this person's bias could be.

[01:48:49] Speaker 03:
And these were critical witnesses.

[01:48:51] Speaker 03:
As we've discussed everything today, we know these were the lab witnesses.

[01:48:55] Speaker 03:
These were the people that placed

[01:48:57] Speaker 03:
my client into the world of knowledge, intent, and identification.

[01:49:06] Speaker 03:
So we say that that was a violation.

[01:49:10] Speaker 03:
I turned to the admission of the lab video, which was another extraordinary event in the trial.

[01:49:19] Speaker 03:
And the court has the video.

[01:49:23] Speaker 03:
I would highlight

[01:49:25] Speaker 03:
We've said it all out in the appendix, but I would highlight moment 12, minute 12, colon 07, 12 minutes, 7 seconds into the video.

[01:49:35] Speaker 03:
What happened with this video was that the ladies and gentlemen of the jury, they were essentially placed in the middle of the Civil War.

[01:49:42] Speaker 03:
But as we began to see what was happening, we protested, we objected, and we said, wait a minute,

[01:49:51] Speaker 03:
This video has nothing to do with this case.

[01:49:54] Speaker 03:
At that point in the video, 1207, it goes from the witness testimony, who was a Columbia National Police Officer, of the lab

[01:50:07] Speaker 03:
And here are the barrels, and this is how it's processed.

[01:50:10] Speaker 03:
And the last thing you see before that moment is one of the Army regulars showing the testing of the cocaine.

[01:50:18] Speaker 03:
It's turning blue.

[01:50:18] Speaker 03:
Here it is.

[01:50:20] Speaker 03:
And then suddenly, you get into, vamonos, vamonos.

[01:50:24] Speaker 03:
And the vamonos is, let's get out of here, because they are coming.

[01:50:29] Speaker 03:
Now, what you see after that is they are getting out of there.

[01:50:34] Speaker 03:
They are blowing up the lab.

[01:50:36] Speaker 05:
You don't see the other people coming.

[01:50:37] Speaker 05:
You don't see the Civil War.

[01:50:38] Speaker 05:
You hear people say, bomb a nose, but maybe it's because they were ready to start the fires and burn the stuff up.

[01:50:42] Speaker 03:
Indeed.

[01:50:43] Speaker 03:
But the witness states clearly what was happening.

[01:50:46] Speaker 03:
We were receiving fire from across the river.

[01:50:49] Speaker 03:
We had to get out of there because we thought they could be coming.

[01:50:53] Speaker 05:
Well, that's a problem from the witness, not from the video.

[01:50:56] Speaker 03:
Well, for the purposes of the video,

[01:51:00] Speaker 03:
It's akin to showing a search warrant video of a house in Northwest.

[01:51:06] Speaker 03:
and then saying, welcome to the trial for this house in Northeast, and showing that video.

[01:51:12] Speaker 05:
That's a different point from putting the jury in the middle of the Civil War.

[01:51:15] Speaker 05:
That's just a question about whether it's relevant to have a videotape from one crime to show, to be used to try to show in another crime.

[01:51:26] Speaker 03:
Right.

[01:51:26] Speaker 05:
That's a different point.

[01:51:27] Speaker 03:
But to address your question, when the witness who was a fact slash expert witness

[01:51:34] Speaker 03:
tells the jury, this is what's happening.

[01:51:37] Speaker 03:
They're firing at us.

[01:51:39] Speaker 03:
The helicopters are there because they're shooting and giving us cover.

[01:51:44] Speaker 03:
He's making reference to the FARC.

[01:51:48] Speaker 03:
His description.

[01:51:48] Speaker 05:
Do they not have other testimony from, have other testimony that they knew there was, that the FARC was not just cocaine distributors, but also an armed revolutionary group?

[01:51:58] Speaker 03:
Yeah, but they were.

[01:51:59] Speaker 05:
Or with the Colombian government?

[01:52:00] Speaker 03:
But they were placed right in the middle of it with that video.

[01:52:02] Speaker 03:
That video is extraordinary.

[01:52:04] Speaker 03:
That video creates fear.

[01:52:05] Speaker 03:
That video is apprehension.

[01:52:07] Speaker 03:
You hear the vamanos, vamanos.

[01:52:08] Speaker 03:
The fear in those Colombian Army members is present.

[01:52:15] Speaker 03:
And my concern is that

[01:52:17] Speaker 03:
that jury is taken an irrelevant piece of evidence, being shown, and then receiving testimony from the fact-slash-expert witness that, hey, it's them.

[01:52:34] Speaker 03:
They're coming at us.

[01:52:36] Speaker 03:
And, oh, by the way, they're members over there.

[01:52:40] Speaker 03:
I mean, the prejudice spillover, especially from something that was absolutely irrelevant,

[01:52:45] Speaker 03:
to the case at trial.

[01:52:49] Speaker 03:
It was extraordinary.

[01:52:50] Speaker 03:
It could have, again, the could have portion of this.

[01:52:54] Speaker 03:
The government could have presented a photograph, or they could have created windows of each video, video frames.

[01:53:03] Speaker 03:
These are the barrels.

[01:53:05] Speaker 03:
Lieutenant Colonel, is that how it's done?

[01:53:07] Speaker 03:
Yes, it is.

[01:53:08] Speaker 03:
This is the area where the leaves are dried.

[01:53:11] Speaker 03:
Is that how it's done?

[01:53:12] Speaker 03:
Yes, it is.

[01:53:13] Speaker 03:
But the video was a movie that brought them into the war.

[01:53:19] Speaker 03:
You can describe it, the FARC is a guerrilla movement and the Colombian government is fighting with the FARC.

[01:53:26] Speaker 03:
But to bring them into a war scene, the prejudice was extraordinary.

[01:53:34] Speaker 03:
With the court's permission, if I may just reference the electronic surveillance, our point with that is that satellite phones being used and requested of district court judges

[01:53:50] Speaker 03:
to be used strictly outside of the United States.

[01:53:55] Speaker 03:
Some distinction with some of the other cases where listening posts are here or cell phones are pinging off of towers here in the United States.

[01:54:05] Speaker 03:
The interesting thing here was that these cell phones were strictly to be used to be placed in and infiltrate the FARC, location conversations.

[01:54:16] Speaker 03:
And that is what the judge in the Southern District of Florida actually made a ruling on saying that this is going to go outside of the country.

[01:54:27] Speaker 03:
Not so much focusing on listening posts or data collection centers.

[01:54:33] Speaker 03:
But we challenge it.

[01:54:35] Speaker 05:
How does it help you if Title III doesn't apply outside the United States and you say there wasn't sufficient nexus to the U.S.

[01:54:45] Speaker 05:
You're out of luck.

[01:54:46] Speaker 05:
You want Title III just to apply enough to give you relief, but not enough to allow a judge here to authorize a wiretap.

[01:54:55] Speaker 05:
If Title III doesn't reach over there, then until it reaches over there, you get no protection from it.

[01:54:58] Speaker 03:
Your Honor's right.

[01:55:00] Speaker 03:
Sometimes we make arguments at the trial level saying, hey, look, we've received these wiretaps from another country, and we can't trust them.

[01:55:08] Speaker 03:
We can't trust them.

[01:55:09] Speaker 03:
We don't have the same level of confidence that we have with Title III.

[01:55:13] Speaker 03:
You're absolutely right.

[01:55:14] Speaker 03:
But the interesting thing here is when a judge is presented with an affidavit that says, we're not going to do anything in the United States with these telephones.

[01:55:26] Speaker 03:
These phones are going out there.

[01:55:27] Speaker 03:
They're going to go into the jungles of Columbia.

[01:55:30] Speaker 03:
They're never going to see a U.S.

[01:55:33] Speaker 03:
cell tower.

[01:55:35] Speaker 03:
And the only thing we can tell the court is they're going to ping off of a satellite and they're somehow going to be linked into maybe a Rockville address or maybe a data collection center that I believe was Connecticut and California in this case.

[01:55:50] Speaker 03:
Is that appropriate for Title III?

[01:55:52] Speaker 03:
We would argue it's not.

[01:55:53] Speaker 06:
Did you make that argument?

[01:55:55] Speaker 03:
We didn't make the jurisdiction argument and that's why we're working under plain air.

[01:56:02] Speaker 03:
With that, I thank the court.

[01:56:10] Speaker 04:
I'll start quickly with the wiretap.

[01:56:11] Speaker 04:
They didn't make the argument below.

[01:56:13] Speaker 04:
I don't believe they're even working under plain error.

[01:56:15] Speaker 04:
I think it's waived.

[01:56:16] Speaker 04:
You can't take a suppression issue, put it in your pocket, gamble on an acquittal, and then pull it out again after you've failed.

[01:56:23] Speaker 05:
The version of Rule 12 that governs at this stage doesn't have that waiver language.

[01:56:31] Speaker 05:
It's less clear, I think, what the... It may not make a difference, but aren't we in Plain Arrowland?

[01:56:36] Speaker 04:
It's possible.

[01:56:37] Speaker 04:
The rule has historically been wavering.

[01:56:38] Speaker 04:
I'm not sure that the change in Rule 12... A, I'm not sure it's retroactive to... I'm not sure... Pretty subtle law that you apply the version of the Rules of Criminal Procedure because they're procedural, that's in effect at the time of decision.

[01:56:56] Speaker 05:
The Supreme Court said that.

[01:56:58] Speaker 04:
Okay.

[01:57:00] Speaker 04:
I don't think we need to decide it for sure.

[01:57:04] Speaker 04:
Assuming plain error, there is no error, but there's certainly nothing plain about it, even if there were error.

[01:57:14] Speaker 04:
Every circuit court that has thought about the issue of a listening post as being jurisdictional has said that you do have jurisdiction where the listening post is, so the idea that it's clear that you don't

[01:57:25] Speaker 04:
and that that would be plain error is incorrect.

[01:57:29] Speaker 04:
There's also the potential overlay of good faith.

[01:57:33] Speaker 04:
All of this was laid out in an affidavit for the judge who issued the wiretap.

[01:57:39] Speaker 05:
No, we don't know if the good faith exception applies to Title III.

[01:57:42] Speaker 04:
We do not know, but it's certainly not plain that it doesn't.

[01:57:44] Speaker 04:
And as a result, that's another issue where were this done to succeed on... Does anyone apply good faith exception here?

[01:57:52] Speaker 04:
I'm sorry?

[01:57:53] Speaker 05:
the district court didn't apply the good faith.

[01:57:55] Speaker 04:
The district court didn't, well, the district court, there was no way, so they didn't have to do one way or another.

[01:57:59] Speaker 05:
Right, exactly, so I'm not sure how good faith factors normally requires, anyhow.

[01:58:04] Speaker 04:
My argument would be that had this been raised below the issue of good faith, this court would have to... So it mitigated the issue of whether good faith should apply?

[01:58:11] Speaker 04:
Exactly, and so if there were error here, and if it were plain, if this is not a jurisdictional, an appropriate jurisdictional use of Title III,

[01:58:21] Speaker 04:
Even so, you then have to turn to the issue of whether or not there's good faith.

[01:58:27] Speaker 04:
It is not clear whether good faith applies to a Title III or not, but that's another issue that is not plain on appeal.

[01:58:36] Speaker 04:
It may well apply, and to carry their burden, the defense has to show, A, that this was plainly erroneous, and B, that it is clear that good faith is not a concept that you can apply in Title III.

[01:58:47] Speaker 04:
My point being, there are a lot of unresolved issues that would have to be resolved in order to do this.

[01:58:53] Speaker 04:
That's not what plain error is.

[01:58:54] Speaker 04:
Plain error is where?

[01:58:55] Speaker 04:
it's crystal clear that they're entitled to relief.

[01:58:58] Speaker 04:
That is not this case by any stretch.

[01:59:01] Speaker 04:
And then on top of that, there is the issue that you raised, Judge Millett, that all we get from the fact that Title III doesn't cover this wiretap, if it were true, which it's not, is that maybe there's no protection for the defendants, and again, not an issue that can be decided on plain error.

[01:59:21] Speaker 04:
On the issue of the bracelets, there's not much to be said about that.

[01:59:27] Speaker 04:
That cross-examination was, it's hard to even understand exactly what the relevance of the cross-examination was, but on top of that, Judge Hogan spoke with the marshals

[01:59:38] Speaker 04:
determined that the bracelets were on for a security concern for the security of the witnesses, and correctly concluded that if he were going to allow cross-examination on why they are wearing the bracelets, the government would have to be able to explain that there is this security concern to rebut the arguments, whatever they were, that the defense would be making, and that would lead to just a whole number of issues that appropriately should not have been brought in at trial.

[02:00:07] Speaker 04:
On the testimony about Mincho, there are a few things on that.

[02:00:15] Speaker 04:
My adversary said that no instruction would unring that bell.

[02:00:19] Speaker 04:
That certainly cannot be true.

[02:00:20] Speaker 04:
It cannot be the case that this whole trial had to come to a halt and a mistrial had to be granted.

[02:00:25] Speaker 04:
because there was some passing reference to a defense admission that he was mincho.

[02:00:32] Speaker 04:
Certainly some instruction would unring the bell.

[02:00:35] Speaker 04:
The instruction that the judge gave was the instruction that he was effectively the instruction that he told the defense he was going to give.

[02:00:43] Speaker 04:
This was not a bombshell, by the way.

[02:00:45] Speaker 04:
It took eight questions for the defense to even figure out that this was something that they cared about.

[02:00:50] Speaker 04:
It wasn't the moment that it hit and everybody recognized it.

[02:00:54] Speaker 04:
It was eight questions later when they said, hey, can we have a sidebar?

[02:00:57] Speaker 04:
By the way, we didn't know about this in the past, but apparently

[02:01:02] Speaker 04:
There was testimony that the defendant identified himself as Mincho.

[02:01:06] Speaker 04:
The reason it was not a bombshell is because the defendant's identification as Mincho was largely irrelevant.

[02:01:11] Speaker 04:
This is not like Chikwego, and even there, Judge Hogan in post-trial orders and opinions said the issue of identifying him as Chikwego was not all that relevant.

[02:01:23] Speaker 04:
That holds completely true for Mincho.

[02:01:26] Speaker 04:
One of the witnesses testified that everybody named Erminso is called Mincho.

[02:01:30] Speaker 04:
It's just a diminutive.

[02:01:32] Speaker 04:
There was nothing about some unidentified Mincho out there committing acts, and this is that Mincho.

[02:01:39] Speaker 04:
The witnesses knew him as Mincho, but more importantly, the witnesses knew what he did.

[02:01:42] Speaker 04:
His identity was never in dispute.

[02:01:44] Speaker 04:
He was the brother of the head FARC commander in the area.

[02:01:47] Speaker 04:
And a number of witnesses said he was a leader and the operator of a cocaine lab.

[02:01:53] Speaker 04:
Whether or not he was Mincho was nothing to anyone, and I would submit that's why the question got asked, answered, and it took eight questions later for anybody to figure it out.

[02:02:05] Speaker 04:
At that point, the judge said, OK, I'm going to strike it.

[02:02:08] Speaker 04:
I'm going to give the instruction to disregard.

[02:02:11] Speaker 04:
I have the exact language here.

[02:02:12] Speaker 04:
But he says, I'm going to tell the jury to ignore the defendant's statement that he was mincho.

[02:02:17] Speaker 04:
And the defense said, thank you.

[02:02:19] Speaker 04:
At that point, if they thought there was some other instruction that was going to cure this more precisely than what the judge was about to say, it was their obligation to say so, they were happy with what they got at the time.

[02:02:32] Speaker 04:
And it did cure it completely.

[02:02:34] Speaker 04:
And there was no other way to do it.

[02:02:36] Speaker 04:
Eight questions later, there's no other way to tell the jury what testimony it is that they're supposed to strike.

[02:02:43] Speaker 04:
And then finally, one last thing on that.

[02:02:44] Speaker 04:
We have in our brief at page 69, there are four people who ID'd the defendant as Mincho.

[02:02:49] Speaker 04:
Finally, on the jungle lab video, I want to state right up front that the defense is right and we are wrong in our brief that this was a jungle lab in the 16th front.

[02:03:02] Speaker 04:
They point that out.

[02:03:02] Speaker 04:
The confusion there was there were some still images that had come in that were from the 16th front.

[02:03:08] Speaker 04:
This was a jungle lab that was in the first front, I believe.

[02:03:12] Speaker 04:
But to be clear on that, that was a mistake in our briefing on appeal.

[02:03:16] Speaker 04:
That was never a source of confusion at trial.

[02:03:20] Speaker 04:
Judge Hogan, it was perfectly clear at trial that this was a jungle lab from the first and I believe seventh fronts.

[02:03:30] Speaker 04:
have injected that error on appeal or that confusion, but I'm trying to withdraw it.

[02:03:35] Speaker 04:
That said, the reason it came in was precisely because this was a jungle lab operated by the conspiracy, and we were fortunate to have a piece of evidence that allowed the jury to see that.

[02:03:46] Speaker 04:
Otherwise, they got relatively dry descriptions of what a jungle lab looks like.

[02:03:50] Speaker 04:
If you have not seen the video, it's illuminating, as it was for the jury, to be able to see what a jungle lab looks like, like the one that Mr. Cuevos was running.

[02:04:01] Speaker 04:
There is no civil war in this video, if you take a look at it.

[02:04:06] Speaker 04:
It is a raid, to be sure.

[02:04:08] Speaker 04:
They're going into enemy territory, and they are quickly blowing up a lab and getting out.

[02:04:13] Speaker 04:
And that's what you see.

[02:04:14] Speaker 04:
At the very end, there's a description by the witness.

[02:04:18] Speaker 04:
You would miss it as being the helicopter rotors if it weren't described by the witness, where he says, oh, that's fire that we're taking as we're taking off.

[02:04:26] Speaker 04:
But it is fire that, I mean, it was explained to the jury, so it is what it is.

[02:04:33] Speaker 04:
This was a case where we put on evidence that this conspiracy was an armed insurgency that trafficked in cocaine, a video that shows that, even if it did, which it largely did not.

[02:04:44] Speaker 04:
But even if it did, that is evidence of the conspiracy and relevant.

[02:04:49] Speaker 04:
There's been no particular explanation why the unfair prejudice, what the unfair prejudice is or why it would substantially outweigh

[02:04:59] Speaker 04:
the obvious relevance of this video and on top of that why it would be a grave abuse of discretion for Judge Hogan to have concluded otherwise.

[02:05:08] Speaker 04:
I think that covers all of the points so the government will rest on its briefs at this point.

[02:05:16] Speaker 04:
Thank you.

[02:05:17] Speaker 06:
All right, thank you.

[02:05:20] Speaker 06:
Everybody was out of town but we will give you each one minute if you need to follow up on something.

[02:05:26] Speaker 02:
Thank you.

[02:05:32] Speaker 02:
With respect to the Garrido prejudicial confession, as I will refer to it, the problematic testimony came on March 4.

[02:05:44] Speaker 02:
Trial began actually on February 24 with several days devoted to picking a witness.

[02:05:49] Speaker 02:
In short, we were in the first week of this seven-week trial, and therefore, it is not as though we completed 90 percent, and it would be a bigger loss to declare a mistrial early on in the trial.

[02:06:02] Speaker 02:
The government from its opening statement referred to Mr. Cuevas' brother, who was one of the top individuals indicted in this 51 co-defendant case, and in short, established guilt by association.

[02:06:21] Speaker 02:
This is the guy who's down at the bottom, number 49 on the indictment list, who's the brother of number one.

[02:06:26] Speaker 02:
and number one we know is a big person in FARC and therefore this guy's guilty because of that association.

[02:06:34] Speaker 02:
The defense was not happy with the district court's proposed instruction because it didn't say I'm going to repeat the problematic information, I'm going to add to it, and I'm also going to provide an explanation why.

[02:06:49] Speaker 02:
There was no discussion for instances.

[02:06:51] Speaker 02:
I'm going to tell a jury this is a Rule 16 violation, which the prosecution concedes

[02:06:56] Speaker 02:
What we got was not what was previewed at the bench.

[02:07:00] Speaker 02:
What we got was more problematic, clearly over the line, I suggest, in terms of both the description of the instruction in Foster and in McClendon.

[02:07:11] Speaker 02:
District Court did not interrupt any improper answers.

[02:07:15] Speaker 02:
In fact, it went back and forth several times.

[02:07:17] Speaker 02:
Indeed, after the bench conference, after the jury instruction, the very next question by the prosecutor was, Erminso Cuevas Cabrera, also known as Mincho, were hammering home that alias, and therefore I submit that the evidence establishes that this was important to us and it was certainly important to the prosecution at that time.

[02:07:42] Speaker 02:
Beyond that, I believe I have nothing further, and the red light is indeed on.

[02:07:46] Speaker 02:
Thank you very much.

[02:07:53] Speaker 03:
Thank you.

[02:07:53] Speaker 03:
Unless Your Honor has a question about that video or the ankle bracelet or the Title III issue.

[02:07:59] Speaker 07:
What is the prejudice of the video?

[02:08:02] Speaker 03:
Your Honor, I was able to go back into the appendix and reread the Lieutenant Colonel's testimony.

[02:08:10] Speaker 03:
We are receiving fire.

[02:08:13] Speaker 03:
We're receiving fire from the FARC.

[02:08:14] Speaker 03:
These are members of the FARC that are sitting right across from me, ladies and gentlemen, the jury.

[02:08:18] Speaker 03:
The machine guns were coming from the helicopters.

[02:08:22] Speaker 03:
We had to get out of there.

[02:08:23] Speaker 03:
It's a very volatile situation.

[02:08:25] Speaker 03:
It's because of this individual and his organization that are there.

[02:08:31] Speaker 07:
It is... You're saying they actually blamed the defendants for the gunfire shown in the video?

[02:08:37] Speaker 03:
Yes, it's the inference.

[02:08:39] Speaker 03:
It's the inference.

[02:08:40] Speaker 03:
We're there.

[02:08:40] Speaker 03:
We're breaking up a FARC lab.

[02:08:43] Speaker 03:
We're under fire from the FARC.

[02:08:45] Speaker 03:
And I'm here describing what the FARC does, and the government takes the easy step and, you know, will argue later and does argue later.

[02:08:54] Speaker 03:
This is the FARC.

[02:08:55] Speaker 03:
This is the struggle that's going on.

[02:08:57] Speaker 07:
Isn't it in the record, maybe you brought it out, that the witnesses were guilty, you've acknowledged the guilt of various crimes, including murder?

[02:09:06] Speaker 07:
In Columbia?

[02:09:08] Speaker 07:
Yeah.

[02:09:09] Speaker 07:
Yes.

[02:09:10] Speaker 07:
Yes.

[02:09:10] Speaker 07:
Hard to see how you can build on, how you can further prejudice.

[02:09:13] Speaker 03:
Well, it would be, if the error that the government acknowledged regarding the identification of the front were the case, and I appreciate that they noted that, if this was a front that was associated with my client, the relevance is there.

[02:09:36] Speaker 03:
But the relevance here was just not there.

[02:09:40] Speaker 03:
We're raiding a house on one street, and we're going to introduce that video in the trial of a house on another street.

[02:09:51] Speaker 03:
We've had large conspiracy cases here, and we do not have, in the murder inks, in the Moors, in the gray cases, we do not have videos being introduced, although it is a large conspiracy, and there are defendants and addresses all over the town.

[02:10:09] Speaker 03:
We do not have the raid of one house being shown as an example of what they did in another house.

[02:10:16] Speaker 03:
It's just not done.

[02:10:18] Speaker 03:
And yet we have that here.

[02:10:20] Speaker 03:
So we have that baseline.

[02:10:22] Speaker 03:
But then beyond that, if it were just to be the example, if it were just to show the workings of the lab, that would be in a good spot, I would argue.

[02:10:36] Speaker 03:
You're doing a good job.

[02:10:37] Speaker 03:
You're showing them, here's where the sink is.

[02:10:39] Speaker 03:
Here is maybe where the methamphetamine was cooked.

[02:10:43] Speaker 03:
But in this case, it goes far beyond that.

[02:10:46] Speaker 03:
This is what the, it goes to that to a certain point.

[02:10:48] Speaker 07:
I understand the argument about relevance.

[02:10:50] Speaker 07:
I want to know about the prejudice though.

[02:10:53] Speaker 03:
The prejudice is that the violence that is associated with this video, the mayhem, the explosion, all of that is attributed directly to my client and that's not even admitting that the client is responsible for what the government claims.

[02:11:10] Speaker 03:
My client's not there as a fighter.

[02:11:13] Speaker 03:
If we accept the government's argument, my client is there as a lab worker.

[02:11:17] Speaker 03:
While the government, while the FARC and the Colombian government may have this large-scale war going on, my client is supposedly there making sure that the barrels are there, the gasoline is there, and the people are fed and people are working.

[02:11:31] Speaker 03:
Yet suddenly, now he's a gorilla that's killing people and killing and shooting at the witness that the government has presented.

[02:11:40] Speaker 03:
And if the government feels good about that person that they brought up here,

[02:11:43] Speaker 03:
then we should feel good about that and we should have some problems with that defendant and his organization.

[02:11:52] Speaker 03:
If they would have just had the video frames, I argue we would have been okay.

[02:11:57] Speaker 03:
The fact that they played the whole thing, the fact that we were not, the fact that the ladies and gentlemen of the jury were able to sit and experience this war movie.

[02:12:09] Speaker 03:
I mean, it's a war movie.

[02:12:11] Speaker 06:
uh... prejudiced michael you're not setting me up here for this point i'm not going to spoil it for you but i'll tell you look at twelve oh seven twelve minutes and seven seconds it right there i think the court for the time thank you uh... mister gilbert mister seidel mister i know that you were appointed to assist this court and we appreciate your assistance