[00:00:01] Speaker 00: Case number 13-3074 et al., United States of America versus Christian Fernando Borda, also known as Tony Appellant, Elizabeth Brandenburg for Appellant Borda, Carmen Hernandez for Appellant Overeign Velez, and Kirby Heller for Appellees. [00:00:24] Speaker 06: May it please the Court? [00:00:25] Speaker 06: My name is Elizabeth Brandenburg for Appellant Christian Borda. [00:00:29] Speaker 06: This case is about a lack of evidence, as well as the failure to admit several pieces of relevant evidence on the crucial question of whether or not my client intended to import drugs into the United States. [00:00:44] Speaker 06: With just 10 minutes, if the court would like me to discuss the facts, I'd be happy to do so. [00:00:50] Speaker 02: Otherwise, I'd like to jump right into... I think you should just jump in, and if we have fact questions, we'll ask them. [00:00:55] Speaker 06: Thank you. [00:00:57] Speaker 06: First, I'd like to address the government's recently filed 28-J letter regarding the circuit's decision in the Vega case in June of this year. [00:01:08] Speaker 06: The Vega case deals with several of the issues that we've raised in our appeal, and I'd like to address how it can be distinguished and how it's helpful to our case. [00:01:20] Speaker 06: The Brady issue. [00:01:23] Speaker 06: In our case, there was years of litigation regarding the government's obligations under Brady and its failures to turn over evidence in a timely fashion for it to be used in Mr. Borda's defense. [00:01:39] Speaker 06: The Vega case deals with, is also an importation case out of Columbia, dealing with a FARC [00:01:49] Speaker 06: guerrilla operation in columbia who were producing drugs cocaine to be brought to the united states [00:01:56] Speaker 06: And the evidence at issue in that case was a single photograph with, did not contain Mr. Vega in the photograph, but someone else who was identified by the same nickname as Mr. Vega, Chiguero, which is actually a large rodent, similar to the capybara is what I was familiar with from Brazil. [00:02:20] Speaker 06: So something of a common nickname. [00:02:24] Speaker 06: In that case, the court held that this evidence, this photograph of this individual other than Mr. Vega, identified by the same nickname, was not prejudicial and not being admitted, even if Brady was violated, because there was much other evidence to support Mr. Vega's [00:02:47] Speaker 06: conspiracy and participation in importation conspiracy. [00:02:53] Speaker 06: He was identified both by the nickname and identified in person as having been involved in the transportation of drugs and weapons and that's simply not what we have in this case where [00:03:07] Speaker 06: The main issue, in fact, had such a dearth of evidence that was admitted to show whether or not Mr. Borda as co-defendant knew or intended for drugs to be imported to the United States. [00:03:21] Speaker 06: The evidence that violated Brady that should have been admitted was statements by the government's own cooperating witness. [00:03:31] Speaker 02: Is that the Skidmore report? [00:03:33] Speaker 06: Yes. [00:03:33] Speaker 02: Okay, I was a little confused about one thing in your brief. [00:03:36] Speaker 02: Setting aside the Skidmore Report, are there other DEA-6s that were not turned over or were they just turned over late? [00:03:46] Speaker 06: There were other DEA-6s that were not turned over. [00:03:49] Speaker 02: Not turned over at all? [00:03:50] Speaker 06: They were turned over late after trial. [00:03:52] Speaker 06: I believe 86 were turned over in response to the court's order after trial that came up from just a luck event where my client happened upon some information while he was incarcerated of things that other people knew about Junior than Foreman in this case. [00:04:15] Speaker 03: But is the Skidmore Report the only one that you briefed that was turned over after trial? [00:04:20] Speaker 06: No, there were others turned over. [00:04:22] Speaker 06: That's the one that we briefed that was the most crucial bit of evidence that was prejudicial and it's not being available and turned over and then admitted to trial. [00:04:33] Speaker 06: The evidence would have [00:04:37] Speaker 03: supported the issue that was in dispute, that Mr. Borda did not know that drugs were coming to the United States, that even the government's own... The government says that's one interpretation of it, but you could read it and see another interpretation and that the agent testified and gave the other interpretation of it, right? [00:04:59] Speaker 03: That's correct. [00:05:00] Speaker 03: And that's what the district court found to be the credible interpretation or at least what, if the report was reflecting what was told to the agent and the agent testified to that and the court credited that, then how are we to conclude differently? [00:05:19] Speaker 06: Well, Your Honor, I believe that our contention is that the jury should have made that determination, that even if there is evidence to contradict this evidence that we contend is admissible and should have been turned over and then admitted, that there's no standard or requirement in the law that [00:05:39] Speaker 06: There can't be a contradictory evidence. [00:05:43] Speaker 06: And Skidmore could have testified the way she interpreted what she heard from her informant. [00:05:49] Speaker 03: That assumes that these out-of-court statements would have been admissible under some hearsay exception. [00:05:55] Speaker 06: Yes, that's correct. [00:05:56] Speaker 06: And that hearsay exception being that the junior of the informant was an agent of the government as a party opponent. [00:06:05] Speaker 03: So if we don't agree with you on the admissibility of this, then we don't even really need to get to Brady, right? [00:06:16] Speaker 03: Correct. [00:06:17] Speaker 06: The evidence would have to be admissible in order to be prejudicial under Brady. [00:06:22] Speaker 06: And our contention is that it is. [00:06:24] Speaker 06: In this circuit, the government has been held to be a party opponent. [00:06:29] Speaker 06: And so statements of government agents can be admitted against the government. [00:06:34] Speaker 03: Is there any case other than Morgan where we've held that? [00:06:39] Speaker 06: No. [00:06:40] Speaker 06: And Morgan deals with party opponent, but not with an agent of the government. [00:06:45] Speaker 06: Morgan dealt with the adoption of a statement and not with them being an actual agent. [00:06:53] Speaker 06: argued that the Sixth Circuit's approach in the Branham case is persuasive because where the government cultivates a relationship with its informant and depends on what the informant says and the informant is then cultivating their relationship with the defendant in the case, that there are certain guarantees of trustworthiness about that. [00:07:14] Speaker 06: If the government is depending on this informant to [00:07:18] Speaker 06: in its investigation and its actions, then their government or their informant statements should also be admissible. [00:07:26] Speaker 03: It seems like if we hold that, then we pretty much open up the floodgates to admissions by parties' opponents in your run-of-the-mill criminal cases because they all rely on informants. [00:07:41] Speaker 06: Many do, that's correct. [00:07:44] Speaker 06: I don't think it will open the floodgates, however, because it's not necessarily your typical case where your informant is telling the government things they don't want to hear. [00:07:55] Speaker 06: And that's what happened in this case, and that's why these statements should have been admitted from our perspective in Mr. Gorda's defense. [00:08:04] Speaker 06: If the informant is trying to curry favor with the government, trying to work with the government for his own good, then [00:08:12] Speaker 06: him telling the government things that are not helpful to that end but are actually exculpatory information for the defense is a further guarantee of its trustworthiness and I don't think that it would open the floodgates because it doesn't serve the informant's own end. [00:08:33] Speaker 06: The Vega case also addressed the instruction issue regarding the [00:08:41] Speaker 06: uh... taking out of evidence of of certain exhibits that were removed from the [00:08:48] Speaker 06: jury's packets but was not specifically instructed, the jury was not specifically instructed not to consider the testimony about these statements which were further connections to the United States, attempts by the government to connect Mr. Borda and his intent to the United States. [00:09:10] Speaker 06: The district court ruled that these [00:09:15] Speaker 06: Parts of the discussions, the wiretaps and taped discussions, were not admissible and had the jury rip them out of their binders but did not tell the jury what they were not considering. [00:09:26] Speaker 03: But that's not completely fair to the district court here. [00:09:31] Speaker 03: said these particular exhibits, which were the English translations, right, of the actual tapes. [00:09:41] Speaker 03: So the jurors never got the tapes, they just got the translations and then the translations were taken away from them. [00:09:47] Speaker 03: And the judge, didn't the district judge also say any testimony related to these exhibits is stricken? [00:09:53] Speaker 06: The district judge said that [00:09:57] Speaker 06: It was that they were stricken and should not be considered. [00:10:00] Speaker 06: But the jury, this is a week and two weeks respectively after these exhibits had been testified to, and there was testimony regarding them, and the jury didn't have the information that they needed to know that what was in their own memories was not something that they could consider. [00:10:16] Speaker 06: Just having ripped it out of their notebook was not enough. [00:10:19] Speaker 06: And the Vega case has a specific instruction. [00:10:22] Speaker 03: I guess I want you to answer my specific question, which is did the district court say [00:10:27] Speaker 03: strike testimony relating to these exhibits. [00:10:31] Speaker 06: I believe so. [00:10:33] Speaker 06: I apologize to the court on that specific, whether testimony was specifically mentioned or not. [00:10:39] Speaker 06: I think the gist of it was that. [00:10:42] Speaker 06: And that was the court's intention was to strike the testimony. [00:10:45] Speaker 06: But if the jury doesn't know what testimony that is. [00:10:48] Speaker 03: So the district judge is supposed to go back [00:10:52] Speaker 03: And catalog the specific testimony that is being stricken for the jury. [00:10:59] Speaker 03: You're saying that our case law requires that? [00:11:02] Speaker 06: Well, in a case of this magnitude of weeks and weeks of testimony, breaks that the jury took, I think not telling them what was being stricken weeks later, which is not the typical occurrence of things coming back weeks later and being stricken, that if we are going to instruct the jury not to consider something, then they should know what they're not considering. [00:11:28] Speaker 02: Thank you. [00:11:31] Speaker 02: Ms. [00:11:31] Speaker 02: Hernandez? [00:11:32] Speaker 04: Good morning, Your Honor. [00:11:44] Speaker 04: If I may, I would like to follow up on the question Judge Wilkins was asking about the instructions that the judge gave to the jury. [00:11:52] Speaker 04: The defense at trial asked the judge to give a very specific reference to the evidence that was being referred to. [00:12:01] Speaker 04: We weren't asking the judge to go on and on or to dig in. [00:12:04] Speaker 04: We asked the judge to specify because there were conversations in Spanish translations. [00:12:15] Speaker 04: The trial went on forever. [00:12:17] Speaker 04: There was like a two-week gap, and there had been a lot of objections to the evidence. [00:12:23] Speaker 04: I'm bilingual and it's often difficult to follow at trial when you've got this issue of foreign [00:12:30] Speaker 04: foreign audio tapes. [00:12:33] Speaker 04: So this was not sort of an open-ended request of the district court. [00:12:37] Speaker 04: This was a request for police identify the evidence that is being stricken by, you know, three sentences so that at least the jury, if it was able to... Is there any case that supports, that would have required the district court to do that? [00:12:55] Speaker 04: As counsel for Mr. Board has said, I don't think, I haven't found any, Your Honor, but these, I must say these extradition cases into the United States present really difficult and different issues for the court. [00:13:08] Speaker 04: And as a matter of due process, if these men are going to be tried in this district, then the court ought to be sort of [00:13:18] Speaker 04: solicitous of their rights to some extent and understand that these cases present very difficult issues for a jury to follow. [00:13:25] Speaker 04: Multiple names in Spanish, nicknames, facts, everything in a foreign country. [00:13:32] Speaker 04: And I, you know, if there is no case, I would ask the Court to be the first. [00:13:44] Speaker 04: This case was, in essence, in a conspiracy case, it was different from a lot of cases. [00:13:49] Speaker 04: Often, you know, the government's theory in a conspiracy case is, you know, there's never, we can't prove it, we have to prove it by inferences, no one was present. [00:13:58] Speaker 04: This was a case where the government had a cooperating witness inside the quote unquote conspiracy from day one. [00:14:06] Speaker 04: They were audiotaping a lot. [00:14:08] Speaker 04: The main witness, [00:14:12] Speaker 04: who knew he was being recorded throughout the meetings, the conspiratorial meetings, took the stand, was on direct for multiple days and never mentioned this 200 kilo quantity until the last question on cross-examination, multiple-day cross-examination. [00:14:32] Speaker 04: And the government was sitting there with an 11-page DEA-6 that said, [00:14:40] Speaker 04: unbeknownst to Borda, the main defendant, the cooperator number two, by the way, at this point it's cooperator number two, sent 100 kilos to Houston and something else with the other 100 kilos. [00:14:58] Speaker 04: Brady is a rule, not a rule of discovery, it's a rule of fundamental fairness. [00:15:02] Speaker 04: And at least the Second Circuit in Lika versus Portuondo reversed on a 2255 where the government didn't produce exculpatory information. [00:15:14] Speaker 04: And what the court in that case said was that Brady does not simply guarantee a perfunctory transfer of information. [00:15:26] Speaker 04: and the limited rating materials could have led to specific exculpatory information only if the defense undertook further investigation. [00:15:34] Speaker 04: We left that testimony, the 200 kilo testimony, untouched because it had not been in any of DEA 6's, had not been testified to on direct. [00:15:44] Speaker 04: We didn't know where it was going. [00:15:45] Speaker 04: If we had been sitting there with a DEA 6 that said [00:15:50] Speaker 04: what the DEA-6 said, we could have confronted that witness, at least refreshed his recollection. [00:15:55] Speaker 04: And it didn't have to be his statement for us to refresh his recollection. [00:15:59] Speaker 03: The problem, though, is that the DEA-6 doesn't say exactly what your theory is. [00:16:09] Speaker 03: It just says that [00:16:11] Speaker 03: 100 kilos was fronted to I'm trying to remember the name of the individual and then basically that they took another hundred kilos Stole another hundred kilos and took that to the to the US [00:16:27] Speaker 03: unbeknownst to them, but it doesn't say that the 200 kilos that you're saying was brought up in cross-examination, that that's the same 200 kilos that was taken unbeknownst to Florida, to the U.S. [00:16:44] Speaker 04: That's for a trial and that's for a defense attorney to explore. [00:16:48] Speaker 04: And had we known that in advance, we would have done a lot with it. [00:16:52] Speaker 04: And it's significant that 200 kilo is the same quantity that the district judge finds as the relevant conduct quantity for sentencing. [00:17:02] Speaker 04: It's the only evidence in the whole trial, even though they had one cooperating witness from the beginning and other cooperating witnesses, it's the only evidence in the entire trial where anyone testified [00:17:15] Speaker 04: drugs entered the United States. [00:17:17] Speaker 04: I know they don't have to prove drugs entered to the United States. [00:17:20] Speaker 04: I know the standard is knowing or intending. [00:17:23] Speaker 04: But going back to knowing or intending, the cooperating witness testified for days and the testimony was undisputed that the intent was to ship into Mexico. [00:17:35] Speaker 04: The government can say geography is all it is, and all the trial errors that we challenge all revolve around this importation issue. [00:17:46] Speaker 04: Again, it goes to the government's closing argument when they stand there in rebuttal when we can't get up and say anything and talk about bees in a box. [00:17:55] Speaker 04: This is a specific intent crime conspiracy. [00:18:01] Speaker 04: This case is distinguishable from Vega because the judge in this case, in ruling on the motions for new trials, said that the case was a close case. [00:18:10] Speaker 04: Never said it was an overwhelming case. [00:18:13] Speaker 04: And again, the government's thrust throughout the whole case is, hey, they were in Mexico, so they had to come to the US. [00:18:19] Speaker 04: And maybe 20 years ago that was true. [00:18:21] Speaker 04: Maybe 10 years ago that was true. [00:18:23] Speaker 04: But the evidence, including some of the evidence that was not introduced, is that [00:18:28] Speaker 04: Mexico is no longer a passageway to the U.S. [00:18:31] Speaker 04: They ship overseas, including Mr. Borda's. [00:18:34] Speaker 04: The testimonies or the evidence and the DA-6s, some of which was not allowed in, is that Borda had business in Europe. [00:18:44] Speaker 04: And it transported through or trans-shipped through Mexico. [00:18:49] Speaker 04: So that 200 kilos was [00:18:54] Speaker 04: went to the heart of the government's case, went to the heart of our case. [00:18:58] Speaker 04: And for the government to sit there and stamp it as draft? [00:19:04] Speaker 04: I've been practicing for many years. [00:19:06] Speaker 03: I've never seen... Well, the hearing after the fact means Agent Skidmore confirmed all of that, right? [00:19:13] Speaker 04: Well, Agent Skidmore could have testified before the jury and have the jury decide whether it's draft. [00:19:19] Speaker 04: And it doesn't matter whether it's draft or not. [00:19:21] Speaker 04: The point is [00:19:23] Speaker 03: Why doesn't it matter whether it's a draft? [00:19:25] Speaker 04: Because any statement made by any any statement that's relevant to guilt or innocence or that's favorable to the defendant, whether it's a draft, whether it's [00:19:38] Speaker 04: I think, I'm not sure, I'm not 100% sure, it doesn't have to be a sworn affidavit for it to be discoverable as Brady. [00:19:46] Speaker 04: Even if it was a, even if Skidmore... I mean, I understand that. [00:19:51] Speaker 03: I mean, it can be detective's notes. [00:19:53] Speaker 03: Those are turned over as Brady all the time. [00:19:55] Speaker 03: I guess my point is that you're... [00:20:03] Speaker 03: You're making it as if this document itself would have been admissible. [00:20:08] Speaker 03: And the fact that it's a draft further implicates the whole admissibility issue. [00:20:14] Speaker 04: I don't agree that for it to be Brady, it has to be admissible. [00:20:17] Speaker 03: As I say, the Second Circuit... Well, I understand that it doesn't have to be admissible to be Brady. [00:20:26] Speaker 03: Because if we're turned over pre-trial, then you can take a document that's hearsay and non-admissible and use it for investigative leads, et cetera. [00:20:37] Speaker 03: But here we have something that is post-trial, and we're trying to see whether the outcome reasonably would have been different. [00:20:49] Speaker 03: So if it's not admissible, [00:20:51] Speaker 03: then how could the outcome have been different? [00:20:56] Speaker 03: What would you have done with the document had you had it before trial that would have made the outcome different? [00:21:01] Speaker 04: Our opening statement would have been different. [00:21:03] Speaker 04: Our cross-examination of the witness would have been different. [00:21:05] Speaker 04: When he said 200 kilos, we backed off because we didn't know. [00:21:11] Speaker 04: But you have to understand what the evidence is. [00:21:13] Speaker 04: There were four recorded conversations in the midst of the conspiracy and after the conspiracy where that cooperator [00:21:21] Speaker 04: In November of 2005, he's recorded telling another cooperator, and he's the person recording, he's the person with the recording device, tells another cooperator, I don't know what [00:21:36] Speaker 04: Junior is the person who received the cocaine and was shifted. [00:21:41] Speaker 04: I don't know what Junior did with the cocaine. [00:21:43] Speaker 04: In April of 2006, there's another recorded conversation. [00:21:46] Speaker 04: See, my time is up. [00:21:47] Speaker 04: There's another recorded conversation where, again, there's the cooperators who are recording the conversations are saying, we don't know what happened to the... Not even one of them talks about shipping into the U.S. [00:21:59] Speaker 04: And that's another thing. [00:22:00] Speaker 04: We always, to this day, [00:22:02] Speaker 04: We don't know when this witness learned that 200 kilos have been shipped to the United States. [00:22:09] Speaker 04: Because throughout the trial, throughout the recorded conversations, there's not a single supporting recording about 200 kilos having come to the U.S. [00:22:18] Speaker 04: And as I say, during his direct examination, he never testified. [00:22:22] Speaker 03: But what would you have done with this document, the cross-examination, if you had it? [00:22:26] Speaker 04: We could have objected to the testimony, as here say. [00:22:30] Speaker 04: Because as I said, we didn't know. [00:22:32] Speaker 04: All the evidence we had, all the DEA sixes we had, never mentioned a 200-kilo shipment. [00:22:37] Speaker 03: But if somebody testifies that something happened, and there's no foundation for it, did they just say, well, 200 kilos went to the US? [00:22:51] Speaker 03: Then you don't need the document to object to it, as you're saying. [00:22:54] Speaker 03: You could say there's no foundation for that. [00:22:56] Speaker 03: We move to strike it. [00:22:58] Speaker 04: But we don't know what his answer is going to be when we move to strike. [00:23:02] Speaker 04: Had we had this document in our hands? [00:23:04] Speaker 03: But this document wouldn't have impeached him. [00:23:07] Speaker 03: It wasn't even his statement. [00:23:08] Speaker 03: It was Junior's statement, and Junior's dead. [00:23:10] Speaker 04: This document, Junior who was working with [00:23:15] Speaker 04: a witness and who had known him for many years before this. [00:23:19] Speaker 04: That document would have allowed us to investigate and to be prepared for testimony, either to object as on foundational grounds or to quasi-confront him with this 200 kilos were sent to Houston and it was unbeknownst to [00:23:35] Speaker 04: to border, isn't that correct? [00:23:37] Speaker 03: So you would have confronted him with a statement that was made by somebody else to impeach him? [00:23:43] Speaker 04: We would have had a good faith basis for asking the question and if he said, I don't know what you're talking about, we could have sought to refresh this recollection with the document. [00:23:52] Speaker 04: We don't need it to be his document to refresh recollection. [00:23:55] Speaker 04: So we could have had a good faith basis to ask the question and go down a road that we were unprepared to go [00:24:02] Speaker 04: And two, we could have refreshed his recollection at a minimum. [00:24:06] Speaker 04: And three, we could have done more investigation with the case. [00:24:12] Speaker 02: Thank you. [00:24:12] Speaker 02: We'll hear from the government. [00:24:31] Speaker 05: Good morning. [00:24:32] Speaker 05: May it please the court, I'm Kirby Heller representing the United States. [00:24:37] Speaker 05: Let me just start with Ms. [00:24:40] Speaker 05: Skidmore's two sentences in her draft report of a debriefing of Junior, just to make clear the numbers that are involved in terms of kilograms. [00:24:52] Speaker 05: First, she says that Junior said, Borda advanced 100 kilograms each to Junior and HB. [00:25:01] Speaker 05: And then after that, so that's 200 kilograms. [00:25:04] Speaker 05: And after that, she says, unbeknownst to Borda, Junior and HB took an additional 100 kilograms to sell. [00:25:10] Speaker 05: So that unbeknownst, first of all, is just talking about 100 kilograms [00:25:15] Speaker 05: We have a load of 1,500 kilograms of a cocaine in this palm oil deal. [00:25:22] Speaker 05: And Jute and Suarez at the trial did not say, and he was asked this when he answered in response to a question on cross-examination, [00:25:36] Speaker 05: Where the 200 kilograms came from, we don't know if it's this 200 that Florida advanced. [00:25:43] Speaker 05: It's just 200 kilograms of this load. [00:25:46] Speaker 05: So there's no basis for assuming that this [00:25:52] Speaker 05: that any of these statements, especially the unbeknownst part, was what Suarez was testifying about. [00:25:59] Speaker 05: In any event, the evidence, the information was not material for the reasons that have been discussed. [00:26:07] Speaker 05: It wasn't admissible. [00:26:09] Speaker 05: It certainly [00:26:13] Speaker 05: doesn't say anything about what Borden knew about what Junior did with the rest of the load. [00:26:21] Speaker 05: It says he doesn't know what happened. [00:26:23] Speaker 05: He doesn't know about the 100 kilograms, but it doesn't say about what Borden knew about what Junior did with the rest of the load. [00:26:30] Speaker 05: And I think an inference is that the rest of it was been known to him that, in fact, it went to the United States. [00:26:36] Speaker 03: But couldn't this be seen as also saying that [00:26:44] Speaker 03: This additional hundred kilograms that that they could sell in Houston for a larger profit I mean as I understand that the government's theory here was that [00:26:59] Speaker 03: The reason that this was sold at the lower price, the so-called Mexico price, was because Junior was basically taking the risk of transporting it to the US and with that risk he could get the higher price and that's why he was selling it at the lower price because he was taking all the risk. [00:27:22] Speaker 03: Wasn't that the government's theory? [00:27:23] Speaker 05: The government's, yes, Your Honor, that is the government's theory. [00:27:27] Speaker 05: What he was selling it for was up to him. [00:27:30] Speaker 03: I don't think Borda had, Borda was upset that it wasn't happening, he wasn't getting his money quickly, but... But if that was the theory, then how is that theory consistent with this statement in the DEA-6? [00:27:43] Speaker 03: That they could took an additional hundred kilograms because they could sell it in Houston for a larger profit. [00:27:51] Speaker 03: They could do that anyway under the government's theory, right? [00:27:54] Speaker 05: Well, they could do that, except this was 100 kilograms they were going to keep for themselves. [00:27:59] Speaker 05: Borda wasn't going to know about it. [00:28:00] Speaker 05: They took it. [00:28:01] Speaker 05: They were going to sell it at the higher price. [00:28:04] Speaker 05: And then when there was an accounting, they would then give back to Borda the money for it. [00:28:11] Speaker 03: But how are they selling it at a higher price? [00:28:15] Speaker 03: It's the same price that they would have been selling all the other kilograms for, right? [00:28:20] Speaker 05: Right, but the rest of it was Borda's cocaine. [00:28:22] Speaker 05: This was cocaine they were selling for themselves. [00:28:25] Speaker 03: But why does it say at the higher price? [00:28:31] Speaker 03: Well, I mean Borda's cocaine that they were buying at the Mexico price, right? [00:28:42] Speaker 03: They were selling [00:28:44] Speaker 03: They were buying it from him at the Mexico price. [00:28:46] Speaker 03: Under your theory, they were still going to transport it to the US, where they could sell it at the US price, right? [00:28:55] Speaker 03: And that delta would be their profit, right? [00:28:59] Speaker 05: Yes, depending on how many middlemen there were, et cetera. [00:29:02] Speaker 05: But the theory was that he was going to sell it. [00:29:06] Speaker 05: He was going to sell it at the border so it then could be transported to the U.S. [00:29:12] Speaker 05: and sold at a higher price. [00:29:13] Speaker 03: So if this says that they were believing that they could sell it at Houston for a larger profit, then doesn't that suggest that they weren't selling the rest at a larger profit? [00:29:28] Speaker 05: yeah i understand uh... your honors your honors question so is that uh... is that yes i don't i don't you understand my question is that you do you agree with the president i don't agree with that interpretation of the statement i think it's simply a statement of what they were going to do with this extra hundred kilograms i don't think it says anything about what does that help how do we interpret the sentence because they could sell it in houston for a larger profit what does that mean [00:29:57] Speaker 05: It simply means that's what they were going to do with it. [00:30:00] Speaker 05: I don't think it suggests that that's not what they were going to do with the rest. [00:30:04] Speaker 05: I think the important part of that statement, if anything is important about that statement, is that they took this additional hundred milligrams. [00:30:11] Speaker 03: Couldn't it be a reasonable inference that that's not what they were going to do with the rest? [00:30:16] Speaker 05: I don't believe it's a reasonable inference. [00:30:18] Speaker 05: I think it says nothing about the rest of the law. [00:30:21] Speaker 03: Would I disagree with you? [00:30:23] Speaker 03: On that, doesn't that make it Brady? [00:30:25] Speaker 05: Well, it might make it more exculpatory than the government believes it is. [00:30:30] Speaker 05: But we still get to the materiality question, which is it wasn't admissible. [00:30:36] Speaker 05: And there isn't a reasonable probability, even if it somehow came in, that it would affect the verdict, because it's so [00:30:49] Speaker 05: far removed from what we know about what Borda and Alvaron knew about this load. [00:30:56] Speaker 05: And I guess to add more context to that because [00:31:01] Speaker 05: The sufficiency question is underlying a lot of these claims. [00:31:05] Speaker 05: The government did not rely on Suarez's statement in cross-examination about 200 kilograms coming to New York as the crux of its case. [00:31:16] Speaker 05: The government was very careful to, in fact, build almost the entire case on the defendant's own words of what they knew. [00:31:24] Speaker 05: The government didn't have to prove that they intended the cocaine to go to the US. [00:31:29] Speaker 05: The government didn't have to prove that they imported the cocaine into the US. [00:31:33] Speaker 05: It just had to prove that they knew that Junior and his Confederates [00:31:43] Speaker 05: were intending for the cocaine to go to the US. [00:31:47] Speaker 05: And their statements on these recorded conversations makes that abundantly clear. [00:31:53] Speaker 05: I can go over that evidence that's certainly outlined in our brief as to. [00:31:58] Speaker 05: And so looking again at this one statement, I certainly would argue that that's really not going to put a dent into their [00:32:07] Speaker 05: into the evidence that showed they knew Junior was bringing this to the border. [00:32:12] Speaker 05: They said that. [00:32:13] Speaker 05: And they knew that Mexicans, like Junior, this is what they did. [00:32:18] Speaker 05: The border says this directly. [00:32:19] Speaker 05: I was told this. [00:32:20] Speaker 05: This is what Mexicans do. [00:32:22] Speaker 05: They bring it to the border. [00:32:23] Speaker 05: They sell it at the higher price. [00:32:25] Speaker 05: They pay us the Monterey price. [00:32:27] Speaker 05: And meanwhile, we're sitting here for two months and not getting paid. [00:32:31] Speaker 05: And he was obviously upset about that. [00:32:38] Speaker 05: Let me just straighten out a couple of facts about the instruction on the evidence that was struck. [00:32:48] Speaker 05: Mr. Borda's attorney asked that the testimony be struck [00:32:53] Speaker 05: And he said, basically, I don't know how you're going to do that. [00:32:56] Speaker 05: It would be hard. [00:32:57] Speaker 05: And first, the court said, I'm not going to do that. [00:32:59] Speaker 05: But then the court made very clear, and that's at the joint appendix on page 283, that the jury should not consider the testimony. [00:33:09] Speaker 05: At that point, Mr. Borda's attorney said, well, at least say they shouldn't consider references to Juarez. [00:33:16] Speaker 05: And it was Florida and Atlanta. [00:33:18] Speaker 05: And the court said, I'm not going to just highlight certain points. [00:33:21] Speaker 05: After all, some of Borda's testimony was stricken, too. [00:33:25] Speaker 05: That was references to Italy. [00:33:27] Speaker 05: And the court did not abuse its discretion in not taking this testimony, which would be very hard to summarize. [00:33:36] Speaker 05: In fact, almost infeasible by just saying, don't consider this testimony. [00:33:41] Speaker 05: And of course, don't consider these exhibits. [00:33:44] Speaker 03: So why was the certified copy of the conviction of Mr. Board admissible? [00:33:51] Speaker 05: Well, it was admitted under Rule 404B [00:33:56] Speaker 05: Yet the court primarily ruled. [00:33:58] Speaker 03: Under what part of 404B? [00:34:01] Speaker 03: I mean, under what theory? [00:34:04] Speaker 03: Was it to prove intent, motive, absence of mistake? [00:34:08] Speaker 03: Which one is it? [00:34:10] Speaker 05: Well, I think that the government's theory was that it showed that he was familiar with the drug market in the United States. [00:34:17] Speaker 05: The court added that it also corroborated Montoya's testimony about how he met Borda. [00:34:24] Speaker 03: So which prong of 404B did those fall under? [00:34:29] Speaker 05: Well, the first would be knowledge. [00:34:30] Speaker 05: Not knowledge of the crime, but knowledge of the United States market to show that so that Borna could not claim, I just shipped to Mexico. [00:34:42] Speaker 05: I'm a Colombian. [00:34:43] Speaker 05: I shipped to Mexico. [00:34:44] Speaker 05: I have no idea about drugs in the United States. [00:34:46] Speaker 05: Now, that claim wasn't made. [00:34:48] Speaker 05: But as a hedge against that, that was the government's theory. [00:34:51] Speaker 05: So that's the knowledge prong. [00:34:55] Speaker 05: The court doesn't fit under one of those. [00:34:58] Speaker 03: What instruction was given to tell the jury that that's what it was used for? [00:35:03] Speaker 05: The court didn't give a specific instruction about, it said, I believe it gave the usual instruction on [00:35:15] Speaker 05: 404b it said this conviction I believe it said the conviction was Admitted you can't consider it for his guilt on this crime. [00:35:23] Speaker 03: I don't remember the court's exact words How does that tell the jury what they should or shouldn't do with this conviction? [00:35:31] Speaker 05: Well, I believe the court gave a a an instruction on 404b that you can consider it I think it's the court said for knowledge didn't say much more but I should add that [00:35:45] Speaker 05: This conviction was only briefly even mentioned when it was introduced. [00:35:52] Speaker 05: It was introduced just as a certified document. [00:35:54] Speaker 05: It was not brought up at all by the government in its summations. [00:35:58] Speaker 05: And Borda, in his own tape recorded statements, admitted that he had been a drug dealer in the United States. [00:36:07] Speaker 05: So that fact was already before the jury. [00:36:09] Speaker 05: Montoya, again, talked about how they met in prison. [00:36:13] Speaker 05: And even if it was error to admit it, it was certainly a harmless error. [00:36:18] Speaker 02: Your answer to Judge Wilkins confused me. [00:36:22] Speaker 02: My notes say that the district court did give a curative instruction telling them to evaluate the prior conviction for only intent and knowledge, not for any inference of heel. [00:36:34] Speaker 02: Is that wrong? [00:36:36] Speaker 05: Yes, Your Honor, that's correct. [00:36:39] Speaker 05: I'm sorry if I didn't make that. [00:36:41] Speaker 02: So your answer to Judge Wilkins should have been yes, the judge did give a curative instruction. [00:36:46] Speaker 05: The judge, yes. [00:36:48] Speaker 05: And I certainly meant that. [00:36:49] Speaker 05: Thank you. [00:36:53] Speaker 05: If there are no other questions, then we will rest on our brief. [00:36:58] Speaker 02: Thank you. [00:36:58] Speaker 02: Thank you. [00:37:02] Speaker 02: Let's see. [00:37:03] Speaker 02: Ms. [00:37:11] Speaker 02: Brandenburg and Ms. [00:37:12] Speaker 02: Hernandez, I think they ran out of time, right? [00:37:15] Speaker 02: Oh, you did? [00:37:16] Speaker 02: Oh, you can use your one minute. [00:37:18] Speaker 02: And Ms. [00:37:18] Speaker 02: Hernandez, you can have one also. [00:37:27] Speaker 06: Thank you. [00:37:28] Speaker 06: To address the government's issues on the prior conviction, this circuit is very [00:37:36] Speaker 06: conservative in admitting evidence of other crimes, admitting that they're highly prejudicial, that other convictions can be misused by the jury to show some propensity. [00:37:50] Speaker 06: And it is our contention that the familiar with the drug trade use for the prior conviction gets dangerously close to propensity if not it's there. [00:38:03] Speaker 06: And our contention is that it's there. [00:38:05] Speaker 01: any more than in every case. [00:38:09] Speaker 06: I think the analysis in the Edwards case from the Tenth Circuit is helpful here, where possession was not equal to distribution, so a prior conviction for possession is not admissible for a distribution conspiracy. [00:38:24] Speaker 06: It's similar here, where a distribution conspiracy conviction, which was the prior with Borda, is not equal to the importation. [00:38:32] Speaker 06: It's a higher standard, a higher level of evidence, a higher level of intent. [00:38:38] Speaker 06: And so the 10th circuit would be persuasive there. [00:38:43] Speaker 01: So it's only where the prior conviction is somehow evaluated as being equally or less serious? [00:38:51] Speaker 06: Well, similar in some way. [00:38:53] Speaker 01: And there was no... Well, this is, I mean, at a slightly more general level, both the prior conviction and the current charge deal with distribution. [00:39:05] Speaker 06: Well, I think that that's where you get to propensity. [00:39:08] Speaker 06: If you're making the inference that if this person has been guilty in the past of distributing drugs in the United States, then they must be. [00:39:15] Speaker 01: And he knows how to distribute drugs. [00:39:16] Speaker 06: And he must be guilty of also importing them to the United States. [00:39:19] Speaker 06: And that's where the danger of admitting other crime evidence comes into play. [00:39:24] Speaker 06: Thank you. [00:39:25] Speaker 02: Thank you. [00:39:32] Speaker 04: Your Honor, the government in argument just said that they relied on more evidence than this 200 kilos, and in their brief they point to five things, simple geography, and that again goes to this closing argument with the bees. [00:39:48] Speaker 04: They didn't have an expert here, unlike there was an expert in the other case, in the Vega case that the government decided in Rule 28J. [00:39:57] Speaker 04: There was no expert here testifying as to what the roots were. [00:40:02] Speaker 04: They relied on the fact that the drugs were moved to Monterey. [00:40:05] Speaker 04: But the testimony was that it was moved to Monterey because that's where Junior lived. [00:40:11] Speaker 04: And he knew the area. [00:40:13] Speaker 04: He knew the Mexican police. [00:40:15] Speaker 04: He was able to negotiate more easily. [00:40:17] Speaker 04: But the money was paid in US dollars. [00:40:19] Speaker 04: But the undisputed testimony was that no one knew exactly how the money came down. [00:40:23] Speaker 04: All they knew is that when it arrived in Mexico City, it arrived through a money exchange house. [00:40:30] Speaker 04: And at that point, it was in dollars. [00:40:31] Speaker 04: So nobody knew how Junior handed over the money. [00:40:34] Speaker 04: And then the cooperator's testimony. [00:40:37] Speaker 04: If I might say one other thing, Your Honor, the DEA-6, the Skidmore DEA-6 is an 11-page document that talks about shipments of cocaine to the United States, not in relation to Mr. Borda. [00:40:50] Speaker 04: And we should probably submit it to the court for review. [00:40:55] Speaker 04: And there's a lot of information that is in the two paragraphs about Mr. Borda's shipments with Junior that could have been used to help us, including for example, including the paragraph before that we haven't been citing to, it says that the drugs were shipped to, that Junior sold the drugs to three different Mexicans. [00:41:25] Speaker 04: in Mexico. [00:41:25] Speaker 04: It doesn't say that it was shipped to the United States. [00:41:27] Speaker 04: And then there's this paragraph about the 200 kilos. [00:41:30] Speaker 04: The reason we focus on the 200 kilos is because that's the testimony that the judge relied on in order to make a finding of relevant conduct and in order to find that there was sufficient evidence not to give us a new trial. [00:41:45] Speaker 02: Thank you, Your Honor.