Prejudice Flashcards
How is this not harmless? As the government notes, your client was caught rafting over a canal far away from the port of entry, crawling through heavy brush, and then hiding in a bush. How could anyone think that a U.S. citizen would do that?
There are U.S. citizens that cross the border between ports of entry, errors are harmless only if “the evidence did not affect the [factfinder’s] verdict.” United States v. Charley, 1 F.4th 637, 651 (9th Cir. 2021) (simplified). Here, the visa application undeniably affected the magistrate judge’s verdict. She stated, twice, that she relied primarily on the visa application for alienage. ER-126, 134. When discussing the alienage element, the magistrate judge did not cite mode-of-entry facts at all. ER-126
Didn’t Mr. Singh agree that he was “Punjabi”?
He agreed that he spoke Punjabi, and the testimony at trial was that Punjabi is a language, not a country or a nationality. So there was back and forth about this at trial–whether admitting to speaking a language other than English was evidence of alienage. The MJ ultimately did not cite it as a basis for her alienage finding.
Did you contest that Mr. Singh was the person in the visa application?
Yes, that was a part of our defense theory. ER-122, 129
Didn’t the visa application explicitly say that Mr. Singh was an Indian citizen, not a U.S. citizen?
The visa applicant identified himself as an Indian citizen, that’s correct. But to use that admission to prove guilt in this case, the government had to show that the visa applicant was my client, the man sitting in the courtroom on trial. And to do that, the prosecutor relied on the information in Page 3. “When you look at the visa identifiers—so the name, the date of birth, nationality, city of birth—those all correspond to Page 3 of the passport that was found in the defendant’s pocket.” ER-123. That was “extremely strong evidence that this individual who was arrested in Calexico was the individual who provided those exact same identifiers in the year 2014 in India.” ER-123.
• Without page 3, those “visa identifiers” are useless. Yes, the visa contains a birthday. But how do we know whether it matches my client’s birthday? Only through page 3. The visa contains a place of birth. How do we know that that’s where my client was born? Only through page 3. So page 3 was critical to showing that the visa applicant was my client, and not just some other man in India totally unrelated to my client.
But it had your client’s name, right?
Yes, your honor. But even the evidence of my client’s name came from Page 3. Because of the language barrier, there was no other questioning establishing even that most basic biographical information.
Didn’t the magistrate judge rely on manner of entry in explaining her guilty verdict?
Not in relation to alienage. To prevail under 1325, the government also has to show that the person didn’t enter at a port of entry. So, of course, she discussed mode of entry when it came to that element. But when it came to alienage, she relied on the visa application alone.
Didn’t the magistrate judge rely solely on the visa application? Wasn’t the passport just a backup?
• Yes, the magistrate judge found the visa application documents “by themselves” supported alienage. ER-126. But she went on to explain why she could rely on the visa application in the first place: because, based on “the information in” the visa application, she believed beyond a reasonable doubt that this defendant and the visa applicant were the same person. ER-127. Without Page 3, however, she had no way to use “the information in” the visa application to make that connection. ER-127. The visa application included “information” about the applicant’s birthday. How did she know that the defendant shared that birthday? Only through Page 3. The visa application included “information” about the applicant’s birth place. How did she know this defendant had the same birth place? Only through Page 3. That’s why Page 3 was essential to the conviction, because it allowed her to rely on a visa application proving alienage.
• And this is exactly what the prosecutor urged her to do. “When you look at the visa identifiers – so the name, the date of birth, nationality, city of birth – those all correspond to Page 3 of the passport that was found in the defendant’s pocket. And so I think that that tells us two things. One is that it is extremely strong evidence that this individual who was arrested in Calexico was the individual who provided those exact same identifiers in the year 2014 in India.” ER-123.
So, you’re saying that maybe your client didn’t fill out the application? That like, maybe a friend or family member did? What’s the evidence for that?
Not quite, your honor. We’re happy to concede that the visa applicant–whoever he is–filled out the visa application himself. Our argument at trial was different: It was that the prosecutor had not proved BARD that the visa applicant was our client. To defeat that argument, the prosecutor turned to page 3: “When you look at the visa identifiers – so the name, the date of birth, nationality, city of birth – those all correspond to Page 3 of the passport that was found in the defendant’s pocket. . . . [T]hat is extremely strong evidence that this individual who was arrested in Calexico was the individual who provided those exact same identifiers in the year 2014 in India.” ER-123.
Doesn’t the visa application have a disclaimer where you have to certify that you personally filled out the visa application?
• Yes, and to be clear, we happy to concede that the visa applicant–whoever he is–filled out the visa application himself. Our argument at trial was different: It was that the prosecutor had not proved BARD that the visa applicant was our client. To defeat that argument, the prosecutor turned to page 3: “When you look at the visa identifiers – so the name, the date of birth, nationality, city of birth – those all correspond to Page 3 of the passport that was found in the defendant’s pocket. . . . [T]hat is extremely strong evidence that this individual who was arrested in Calexico was the individual who provided those exact same identifiers in the year 2014 in India.” ER-123.
The big problem for you, though, is the photo, right? The magistrate judge said the photo was him, so there was no need to rely on the passport.
The magistrate judge ultimately determined that “the information in [the visa application] as well as the picture [was] sufficient to establish that it [was] the defendant who provided that information” in the visa application. ER-127 (emphasis added). In other words, she cited the combination of the photo and the biographical details—not the photo alone. So we don’t know from that statement whether she would have drawn the requisite connection based solely on the photo. And this Court can’t just assume that she would. To the contrary, this Court starts with a presumption that the photo was prejudicial, and it’s the government’s burden to prove otherwise.
• Finally, based on the record, there is reason to question whether the photo was a great likeness to Mr. Singh. That’s because the prosecutor fought tooth and nail to get Page 3 into the record, and the she relied on Page 3 and the visa application info to draw the requisite connection, without ever mentioning the photo.
Well, defense counsel didn’t say, “Wait a minute, that’s not my client.”
Well, she didn’t cite the photo itself, but she did make the argument that the magistrate judge couldn’t find BARD that the visa applicant was Mr. Singh. So, in spite of this photo, she was contesting Mr. Singh’s identity. That would be a rather silly argument to make if the photo was a dead ringer for the client.
The magistrate judge noted more than once that Singh’s visa application and the certificate of authenticity “by themselves are sufficient to establish alienage.” ER-126–27, 134. How can it be true, then, that the passport was needed to establish alienage?
Yes, the magistrate judge found the visa application documents “by themselves” supported alienage. ER-126. But she went on to explain why she could rely on the visa application in the first place: because, based on “the information in” the visa application, she believed beyond a reasonable doubt that this defendant and the visa applicant were the same person. ER-127. Without Page 3, however, she had no way to use “the information in” the visa application to make that connection. ER-127. The visa application included “information” about the applicant’s birthday. How did she know that the defendant shared that birthday? Only through Page 3. The visa application included “information” about the applicant’s birth place. How did she know this defendant had the same birth place? Only through Page 3. That’s why Page 3 was essential to the conviction, because it allowed her to rely on a visa application proving alienage.
• And this is exactly what the prosecutor urged her to do. “When you look at the visa identifiers – so the name, the date of birth, nationality, city of birth – those all correspond to Page 3 of the passport that was found in the defendant’s pocket. And so I think that that tells us two things. One is that it is extremely strong evidence that this individual who was arrested in Calexico was the individual who provided those exact same identifiers in the year 2014 in India.” ER-123.
But the magistrate judge “f[ound] that the information in [the visa application] as well as the picture is sufficient to establish that it is [Singh] who provided that information and that all of the information in [the visa application] is information that came from [Singh].” So, isn’t she saying that the visa application’s contents by themselves were enough to forge a link to your client? Where does the passport come in?
Without Page 3, there is no way to use “the information in” the visa application. For example, the visa application included a birthday. How did she know that my client shared that birthday? Only through Page 3. The visa application included “information” about the applicant’s birth place. How did she know that my client had the same birth place? Only through Page 3. That’s why Page 3 was essential to the conviction, because it allowed her to rely on a visa application proving alienage.
So your theory is that someone sneakily filled out the application behind your client’s back? How would they even access the information needed to do that?
Not at all, your honor. To the contrary, we’re happy to concede that the visa applicant–whoever he is–filled out the visa application himself. Our argument at trial was different: It was that the prosecutor had not proved BARD that the visa applicant was our client. To defeat that argument, the prosecutor turned to page 3: “When you look at the visa identifiers – so the name, the date of birth, nationality, city of birth – those all correspond to Page 3 of the passport that was found in the defendant’s pocket. . . . [T]hat is extremely strong evidence that this individual who was arrested in Calexico was the individual who provided those exact same identifiers in the year 2014 in India.” ER-123.
You say that the MJ made no findings about how good a likeness the photo was to your client. But by saying she relied on the photo, wasn’t she saying that it was a good likeness? If not, she wouldn’t have relied on it.
