[00:00:25] Speaker 01: Well, here are our argument in our final case of the morning, case 24-119, United States versus Agor. [00:00:55] Speaker 04: Good morning. [00:00:56] Speaker 04: Good morning, Your Honors. [00:00:57] Speaker 04: Max Mizzono on behalf of defendant-appellant Omar Agor, Jr. [00:01:01] Speaker 04: May it please the Court, with the Court's permission, I'd like to reserve five minutes from above. [00:01:06] Speaker 04: There's numerous issues on appeal in this case. [00:01:10] Speaker 04: I want to spend the majority of my time focusing on the first issue primarily, which is the district court closing the courtroom three separate times. [00:01:20] Speaker 04: Then I want to discuss the Torres issues. [00:01:23] Speaker 04: Government witness Jake Torres. [00:01:25] Speaker 04: There's three issues there. [00:01:27] Speaker 04: And with any time remaining, discuss some of the other issues that this appeal raises. [00:01:32] Speaker 04: The first issue is that the district court closed the courtroom on three separate occasions. [00:01:38] Speaker 04: It did so during witness proceedings and voir dire or jury issue proceedings, or non-trivial durations, without first complying with pertinent Supreme Court case law, and that constituted structural error requiring an automatic reversal of the conviction and a new trial for the defendant-appellant Omar Agor Jr. [00:02:02] Speaker 04: Under pertinent Supreme Court case law, before closing a courtroom, the district court must first find that there's an overriding interest likely to be prejudiced by not closing the courtroom. [00:02:14] Speaker 04: That was not present in this case. [00:02:16] Speaker 04: Second, the district court, the closure itself must not be broader than necessary to protect that interest. [00:02:23] Speaker 04: Again, cases discussing what an overriding interest would be would be a matter of national security, [00:02:29] Speaker 04: or protecting the safety of an FBI agent or a witness. [00:02:34] Speaker 04: That was not the case here either. [00:02:36] Speaker 04: The trial court must also consider reasonable alternatives to closure. [00:02:41] Speaker 04: The district court both wanted to close the courtroom on three separate times as well in its written order, filed weeks later after Agor filed his motion for a mistrial, thus properly preserving this error. [00:02:53] Speaker 04: didn't consider any reasonable alternatives either. [00:02:57] Speaker 04: And lastly, the trial court made no findings, zero, under these two cases from the Supreme Court to justify the closure. [00:03:05] Speaker 04: Not at the time that it did it in court, and certainly not in its written order issued three weeks later. [00:03:13] Speaker 01: Were there timely objections? [00:03:17] Speaker 04: There was not an immediate objection. [00:03:19] Speaker 04: That's undisputed. [00:03:21] Speaker 04: There was not an immediate objection at the time of the closures, but Agour filed a motion for mistrial on March 20th while the government was still presenting evidence during its case in chief before the jury had reached its verdict. [00:03:37] Speaker 04: So the error is the issue was preserved time under Rules 51 and 52 of the Federal Rules of Criminal Procedure. [00:03:45] Speaker 04: Those rules and the case law that interpret it do not require an immediate objection. [00:03:49] Speaker 01: Well, I mean, if there's not an immediate objection, the judge can't do anything. [00:03:54] Speaker 01: By the time that this was raised, the courtrooms had been closed. [00:04:00] Speaker 01: So usually we like the objection to come in so the judge has the opportunity to figure out is he or she making this right decision in the moment. [00:04:08] Speaker 01: But if the issue is raised later, she wasn't given that chance. [00:04:11] Speaker 04: The issue was raised later. [00:04:12] Speaker 04: Again, I'm not disputing that, Your Honor. [00:04:15] Speaker 04: But it was still brought to the district court's attention as to remedy the violations. [00:04:19] Speaker 04: It could have, for example, granted the motion for a mistrial, conceding its errors. [00:04:24] Speaker 04: It would not do that. [00:04:25] Speaker 01: So what is the standard of review here in light of the fact that the objection came later? [00:04:31] Speaker 04: Well, from Agor's perspective, these are structural errors. [00:04:35] Speaker 04: Three times the district court judge closed the court. [00:04:38] Speaker 04: Structural errors. [00:04:39] Speaker 04: The case law is very clear. [00:04:41] Speaker 04: vacating the judgment, remanding for a new trial is the remedy. [00:04:45] Speaker 04: The government wants this court to believe that plain error review applies. [00:04:49] Speaker 04: And that's just simply incorrect. [00:04:51] Speaker 04: The error was preserved in the district court. [00:04:54] Speaker 04: This court's decisions in both Hogan and Allen, which also had to do with both complete and partial closures, I will mention, and there's no dispute that these were complete closures of the courtroom. [00:05:05] Speaker 04: But in those cases, right, let's start with Hogan. [00:05:08] Speaker 04: In Hogan, [00:05:10] Speaker 04: The district court judge did a partial closure of the courtroom. [00:05:15] Speaker 04: There was contemporaneous access to the public of an audio feed, there was transcripts provided to the public, and there was media inside the courtroom. [00:05:28] Speaker 04: That was not present in Agor's trial at all during these three closures. [00:05:31] Speaker 04: Furthermore, in that case, trial counsel did not object to the closures at all until after the verdict was rendered. [00:05:40] Speaker 04: Agor, on the other hand, objected while the trial was still going on, while the district court could have remedied the issue by granting the motion for a mistrial. [00:05:48] Speaker 04: So we're not in Hogan territory here. [00:05:51] Speaker 04: We're in Allen territory, where the error was properly preserved by Agor [00:05:57] Speaker 04: the courtroom was completely closed, and in that case, in Allen, this court vacated and sent it back for a new trial or new proceedings. [00:06:06] Speaker 04: That's what Agour is asking the court to do here. [00:06:08] Speaker 00: Council, I'd like to just ask a question about, is there any evidence in the record showing that there was somebody or anybody in the audience that day that was removed from the courtroom when they closed the court, anything like that? [00:06:23] Speaker 04: I don't know if there's evidence that's been provided before this court, whether or not there was members of the public there. [00:06:30] Speaker 04: I do know just anecdotally that there were members from my office who were excluded from, who were not part of the trial team, rather, who were excluded from the courtroom during certain proceedings, right? [00:06:43] Speaker 04: So there was no public access other than the two parties, the defendant and court and various staff. [00:06:50] Speaker 00: And I just want to confirm, there was no recording going on. [00:06:54] Speaker 04: There was no recording. [00:06:55] Speaker 04: This was not a COVID era trial where there's certain measures that courts around the country implemented to ensure the right to public access and to safeguard a defendant's right under the Sixth Amendment to an open and public trial. [00:07:09] Speaker 04: There were three closures, as I mentioned. [00:07:11] Speaker 04: Two had to do [00:07:12] Speaker 04: with juror misconduct and the third had to do with government witness Jake Torres when the court on its own decided, well, he might be complicit in this crime with the defendant-appellant, so let's see if we can appoint him counsel just so that he doesn't incriminate himself as the government called him as its next witness to testify during its case in chief. [00:07:34] Speaker 00: Let me ask you a little bit more. [00:07:36] Speaker 00: So how do you address our precedent in US versus Rivera [00:07:39] Speaker 04: that questioning jurors in closed court does not implicate the Sixth Amendment. [00:07:53] Speaker 04: keeping the focus on the jurors for now and not getting to Torres. [00:07:57] Speaker 04: One of the issues, at least for the first closure, it came to light that this juror had not responded truthfully during the voir dire process. [00:08:05] Speaker 04: This juror did not respond to a different district court. [00:08:10] Speaker 04: The judge who actually handled the trial was different, and I'll get to that in the Torres issues, but that specific juror who was already seated as a member of the jury [00:08:26] Speaker 04: did not respond affirmatively to questions whether he had heard about the case or done outside research of the case. [00:08:31] Speaker 04: So this dealt with pretty flagrant juror misconduct, not answering truthfully the court's questioning during the Wadiya process. [00:08:38] Speaker 04: And the way that it occurred here was the district court judge closed the courtroom. [00:08:47] Speaker 04: This juror had already been seated. [00:08:48] Speaker 04: There was a sealed hearing. [00:08:50] Speaker 04: and then all of a sudden the court gets opened up and that juror is no longer there. [00:08:54] Speaker 04: So nobody from the public had any idea of why the juror that had been seated was all of a sudden just missing from the jury. [00:09:03] Speaker 04: There is a second instance with regards to a juror, and this is the second closure, [00:09:09] Speaker 04: where the juror was not following the district court judge's orders specifically to wear a mask. [00:09:14] Speaker 04: So flagrantly violating that district court judge's specific orders to wear a mask. [00:09:19] Speaker 04: All the jurors were required to wear a mask. [00:09:21] Speaker 04: Not everybody in the courtroom, the parties, the defendant, the witnesses, I think we had the choice whether to do that or not, but this district court judge made very clear that the jurors had to wear masks. [00:09:33] Speaker 04: This juror did not do that at it. [00:09:36] Speaker 04: Having a hearing like that where the district court judge is telling the juror in open court, hey, listen, you need to obey my orders. [00:09:44] Speaker 04: You can't just violate what I'm telling you to do is vitally important for the public to see the judge doing his or her job fairly to ensure that the jurors are being treated fairly despite their misconduct. [00:09:55] Speaker 04: But that did not occur at all here. [00:09:58] Speaker 04: So I hope that answers your honest question with respect to the jurors, but this goes far beyond the jurors because we also have Jake government witness Jake Torres, who as the government called him, the district court judge says, we're going to take a break. [00:10:12] Speaker 04: We took a break. [00:10:14] Speaker 04: And then after that, another sealed hearing was held to question Torres whether he had counsel. [00:10:21] Speaker 04: Again, the values that an open trial seeks to promote are fair, ensure fair trial, remind the judge and prosecutor of their responsibility to the accused, encourage witnesses to come forward and discourage perjury. [00:10:33] Speaker 04: That was from the Rivera case that your honor just asked me about. [00:10:38] Speaker 04: So in this case, as evident from the issues on appeal here, the Jake Torres, what the court did with Jake Torres is spawned a whole host of other issues, right? [00:10:50] Speaker 04: the way that the court treated this, in its order at least, saying, well, you know, this was an administrative matter, this was too trivial, I mean, that's just incorrect. [00:11:01] Speaker 04: This was a witness who the government had subpoenaed to testify, listed on their witness list, had investigated for years to determine whether or not he was also complicit or a co-conspirator or had exposure to the same exact crime that defendant appellant Agor was charged with, [00:11:18] Speaker 04: And the government decided, we're calling this witness because he supports our theory of the case at the exact time that they called him. [00:11:25] Speaker 04: There was pretrial litigation about the government wanting to go into Jake Torres' bank records. [00:11:31] Speaker 04: They wanted an FBI agent who actually did testify at the trial to review and tell the jury, look, we've looked at Jake Torres' bank records. [00:11:40] Speaker 04: The same kind of deposits that the defendant Omar Agor has of all these various cash deposits are non-existent in Jake Torres. [00:11:48] Speaker 04: So the inference that we want the jury to draw is that Torres is not part of this crime. [00:11:56] Speaker 04: He's not in the same position that Agor is in as far as culpability. [00:12:01] Speaker 04: The district court also talked, well, I didn't want to embarrass Jake Torres, or they cite to all these cases in its order about witness welfare. [00:12:09] Speaker 04: And witness welfare, the case law that the district court cites in its order, is not about embarrassing a witness. [00:12:16] Speaker 04: It's really about safety matters for a witness. [00:12:19] Speaker 04: It's not to determine whether a witness should be afforded the time to consult with counsel because he might have exposure if he doesn't claim the Fifth Amendment. [00:12:31] Speaker 04: So even if the government comes up here and says, well, plain error reviews, that's what they're gonna do, O'Gore still wins under even that standard. [00:12:41] Speaker 04: The reason being is the first three prongs of that test are easily met. [00:12:46] Speaker 04: Was there an error that occurred? [00:12:47] Speaker 04: Absolutely, three closures. [00:12:49] Speaker 04: Was the error plain? [00:12:50] Speaker 04: Yes, because there was no findings added to support at the time that the court closed the courtroom three separate times or in its written order later on. [00:12:59] Speaker 04: to close the courtroom. [00:13:00] Speaker 04: It didn't explore any reasonable alternatives. [00:13:03] Speaker 04: It didn't articulate this overriding interest. [00:13:08] Speaker 04: The third prong is that the error affected the defendant's substantial rights. [00:13:13] Speaker 04: That's also met. [00:13:13] Speaker 04: The error is structural. [00:13:14] Speaker 04: It's closing the courtroom in violation of a Sixth Amendment right. [00:13:19] Speaker 04: And fourth, did the error affect the fairness, integrity, or public reputation of judicial proceedings? [00:13:25] Speaker 04: The answer, again, is yes. [00:13:27] Speaker 04: I understand that's [00:13:28] Speaker 04: The court has discretion under that fourth prong. [00:13:31] Speaker 04: But again, I would just point back to both Hogan and Allen. [00:13:37] Speaker 04: Hogan, the error was not preserved in the district court. [00:13:41] Speaker 04: The objection was made after the verdict had rendered. [00:13:45] Speaker 04: There was other alternatives to view the closing of the court in that case. [00:13:50] Speaker 04: We are in Allen territory here. [00:13:53] Speaker 04: The reputation and integrity of the court was harmed by doing what it did. [00:13:58] Speaker 04: The public needs to know if jurors are misbehaving. [00:14:00] Speaker 04: The public needs to know if the government calls a witness and then all of a sudden he's just disappeared from the trial, what happened to that witness? [00:14:08] Speaker 04: Why are we not hearing from that witness? [00:14:09] Speaker 04: When the government opened, they told the jury, you will hear from Jake Torres. [00:14:14] Speaker 04: He will be a witness for the government. [00:14:17] Speaker 04: That's in the government's opening. [00:14:20] Speaker 04: And it certainly affected the fairness because as I'll get to the other issues related to Jake Torres, [00:14:25] Speaker 04: It hamstrung the defense. [00:14:27] Speaker 04: All of Jake Torres' statements were consistent over the years that he'd been interviewed by his company, by the Mali Police Department, by the FBI, consistently narrating the same thing. [00:14:37] Speaker 04: Neither he nor the defendant, Appel and Agor, participated in this bank theft of $400,000. [00:14:43] Speaker 04: So under either standard, but we'd [00:14:47] Speaker 04: asked the court to not apply Plan Aire standard. [00:14:50] Speaker 04: But under either standard, Agoura's entitled to a new trial and a vacation of his conviction. [00:14:59] Speaker 04: Going into Jake Torres, whether or not he had a good faith basis to invoke the Fifth Amendment and did the district court make adequate findings to support a blanket invocation of that right. [00:15:10] Speaker 04: So again, Agoura's position is no, a new trial is required. [00:15:16] Speaker 04: for this reason as well. [00:15:19] Speaker 04: A district court judge is required to make an inquiry into the basis of a Fifth Amendment privilege. [00:15:25] Speaker 04: It may not permit the witness to refuse to testify, or there's no good faith basis to invoke the privilege. [00:15:31] Speaker 00: Counsel, let me ask you a few questions here. [00:15:33] Speaker 00: I do have questions on this issue in particular. [00:15:35] Speaker 00: Is there anything in the record about immunity for Torres' testimony? [00:15:38] Speaker 04: No. [00:15:40] Speaker 00: Okay. [00:15:40] Speaker 00: Did the defense propose any particular questions that it wanted to ask Torres that would not implicate him in the crime? [00:15:46] Speaker 04: I specifically went, and this is the extra records, 1173, 1177, as well as the entirety of the March 20 status conference, that's one extra record, 145. [00:16:00] Speaker 04: I told the district court specifically, here are all the areas of inquiry that I want to go through. [00:16:04] Speaker 04: The government's brief says, well, I waive that, but that's completely false. [00:16:08] Speaker 04: My response to the question posed by the court was after the district court judge had made that finding with respect to you can't really ask him anything about January 2nd or the events thereafter related to this theft, I told the district court judge, okay, if that's the court's ruling, I'm not just going to call him to ask him how his day is going. [00:16:28] Speaker 04: I wanted to focus specifically on all of his statements that had preceded this jury trial that were consistently denying his and Agor's involvement in the bank theft. [00:16:42] Speaker 00: Going back to the... Sorry, I still have questions for you. [00:16:47] Speaker 00: Whose burden is it to identify the questions that don't implicate Torres' Fifth Amendment right? [00:16:53] Speaker 00: Is it the courts or is it the party that wants to call him as a witness? [00:16:56] Speaker 04: Well, the court has to do an inquiry into whether or not or any witness has a good faith basis to invoke the Fifth Amendment. [00:17:06] Speaker 04: And even if the court makes a determination that, okay, yes, there's a good faith basis, the blanket invocation of that right, which is what occurred in this case, is disfavored. [00:17:15] Speaker 04: That's black letter law under the circuit. [00:17:17] Speaker 04: Rather, a question by question basis is what's preferable. [00:17:21] Speaker 04: The only time a blanket invocation is [00:17:24] Speaker 04: is allowed or is permissible is when the district court judge is acutely familiar with the case itself. [00:17:30] Speaker 04: And again, as our brief points out, as I just mentioned moments ago, this district court judge came in literally the day of trial. [00:17:39] Speaker 04: The district court judge who ruled on everything pre-trial, pre-trial conferences, motions and liminaires, other status conferences, et cetera, fell ill, unfortunately, and this other district court judge who knew nothing about the case [00:17:53] Speaker 04: came in and after one day of trial Sue Esponte said I think from what I've seen Jake Torres has some exposure here but that was again despite the motions in limine despite the government's trial brief despite its representations at many proceedings prior where the government essentially represented we don't believe Jake Torres is part of this crime so it does seem pretty clear that Torres [00:18:16] Speaker 00: would be a suspect in the theft since he was with Igor when the money went missing. [00:18:22] Speaker 00: So what questions or testimony do you claim he could provide that would not implicate him? [00:18:26] Speaker 04: Well, I narrated the statements that I wanted the district court judge to allow me to go into. [00:18:32] Speaker 04: They were all consistent over time. [00:18:36] Speaker 04: I don't think I provided a list of questions after she made her ruling, but the argument was, well, if he's now rendered unavailable, right, then the rules of federal evidence, particularly against his penal interest, 804, and the residual exception, 807, as well as the right, [00:18:53] Speaker 04: for due process to present a complete defense, allowed these statements to come in. [00:18:58] Speaker 04: The government consistently argued that Agora's denials were consciousness of guilt evidence. [00:19:03] Speaker 04: That's what they argued in closing. [00:19:04] Speaker 04: They said he's lying, and that touches upon prosecutorial misconduct, which is another issue on appeal that warrants new trial. [00:19:12] Speaker 04: But they said that Agora's denials constituted consciousness of guilt evidence. [00:19:16] Speaker 04: How can it be then that [00:19:18] Speaker 04: Torres' similar denials are also not consciousness of guilt evidence and therefore against his penal interest and should come under that exception as well. [00:19:26] Speaker 00: That's a follow-up question I have for you. [00:19:28] Speaker 00: Is there any case law that invoking the Fifth Amendment means that the prior statements are necessarily statements against interest under the hearsay rules? [00:19:36] Speaker 04: I wish I had the answer to that. [00:19:38] Speaker 04: I don't have a case off the top to answer the court's question there. [00:19:43] Speaker 04: But I just want to spend the remainder of my time just telling this court why the [00:19:47] Speaker 04: the blanket invocation was so incorrect and comparing it to a case that the government cited in its answering brief, which is Causer. [00:19:55] Speaker 04: In Causer, the court properly allowed a witness to invoke the Fifth Amendment and did a blanket invocation, right? [00:20:01] Speaker 04: In Causer, the witness had gave conflicting statements over the years. [00:20:06] Speaker 04: So the trial court judge there made the decision that, well, no matter how you testify, you could be subjecting yourself to perjury. [00:20:14] Speaker 04: That's not what happened here. [00:20:15] Speaker 04: Torres, again, [00:20:16] Speaker 04: Over years, meetings with the FBI, meetings with the Maui Police Department, meetings with his own internal company consistently narrated the same story over and over and over again. [00:20:26] Speaker 04: So consistent that the government had him come into court and was gonna testify as a government witness to support its then theory that Agor had acted alone. [00:20:35] Speaker 04: It wasn't until the district court judge came in on her own after one day of trial testimony and decided we need to take a step back. [00:20:43] Speaker 04: But in Causer, again, the procedures were far different too. [00:20:48] Speaker 04: In Causer, the district court judge allowed the defense counsel to question that witness outside the presence of the jury. [00:20:54] Speaker 04: That district court judge was familiar with the case. [00:20:57] Speaker 04: And the testimony that that witness would have provided in Causer would have been unhelpful to the defense. [00:21:04] Speaker 04: Torres' statements were crucial to the defense. [00:21:07] Speaker 04: The district court judge not allowing him to testify [00:21:11] Speaker 04: highly prejudicial to defendant appellant of course defense. [00:21:15] Speaker 04: So see that my time is up. [00:21:18] Speaker 04: I hope it can have some time. [00:21:19] Speaker 01: We'll put two minutes on the clock when you come back. [00:21:21] Speaker 01: Thank you so much. [00:21:29] Speaker 03: Good morning. [00:21:30] Speaker 03: May it please the court. [00:21:32] Speaker 03: My name is Marshall Silverberg with Aslan Afanito who's at council table. [00:21:36] Speaker 03: We represent the United States in this case. [00:21:39] Speaker 03: So I'll address the order of the defendant's arguments in the way he presented them, unless the court wants me to do otherwise. [00:21:48] Speaker 00: Can I ask you some questions on the Fifth Amendment issue? [00:21:50] Speaker 03: Sure. [00:21:51] Speaker 00: Is there anything in the record about immunity for Torres or any plea deal? [00:21:57] Speaker 03: There is nothing in the record to reflect that the defense ever asked the government to give him use of immunity for his testimony. [00:22:04] Speaker 00: Okay. [00:22:05] Speaker 00: And were there no narrower privileges that could have allowed Torres to testify? [00:22:09] Speaker 03: I'm sorry. [00:22:11] Speaker 00: Instead of the blanket privilege, could there not have been something more narrow constructed? [00:22:16] Speaker 00: Was that considered? [00:22:21] Speaker 03: Either he was involved in the theft, or he knew about the theft, or he was not. [00:22:25] Speaker 03: So after he received counsel, counsel informed the court, and the counsel is a very experienced defense lawyer, informed the court that he discussed the matter with his client, and he advised his client to evoke his Fifth Amendment right not to incriminate himself. [00:22:42] Speaker 03: The court then inquired of the defendant himself and he said after speaking to his lawyer, he was invoking his right not to incriminate himself. [00:22:51] Speaker 03: So either he was involved or he knew about it or he was not. [00:22:55] Speaker 03: And the implication was he was either involved or he knew about it and didn't want to incriminate himself. [00:23:01] Speaker 00: But is it the government's position that that's enough, that just making that general statement of, well, my lawyer told me not to, so I'm not, and also the lawyer saying to the court, I've talked to my client, I'm gonna advise him to take the fifth. [00:23:12] Speaker 00: Is there no more inquiry required? [00:23:15] Speaker 03: Well, if the defendant had wanted a case question by question, I think the court asked him, do you want to ask him any specific questions? [00:23:23] Speaker 03: And he said, well, if all his answers are going to be he's going to evoke the fifth because he's going to incriminate himself, then I'm not going to bother. [00:23:30] Speaker 03: But she did give him that opportunity. [00:23:32] Speaker 03: So if there was something else that he wanted to bring out as to, for example, whether they went to another location before heading back to the office, [00:23:42] Speaker 03: was he ever alone with the money, things like that. [00:23:46] Speaker 03: He could have asked that and put that on the record, and then the court would have had to result under, I think it's Hoffman versus United States, would have had to resolve that by question by question. [00:23:57] Speaker 03: But he gave up that opportunity, Ms. [00:23:59] Speaker 03: Mazzola did, and did not ask the court to ask any specific questions after the witness invoked his fifth. [00:24:06] Speaker 03: I mean, the witness was in the, [00:24:09] Speaker 03: position that either if he didn't know anything and was completely innocent, then he did not have a basis to invoke the fifth and should have compelled, they should have asked for immunity, they never did. [00:24:24] Speaker 03: There's nothing in the record to reflect they ever asked for it. [00:24:29] Speaker 03: This whole thing is about gamesmanship if you want to know our position. [00:24:33] Speaker 03: Rule 51B says you have to make an objection when the court ruling or order is made or sought, not five days later. [00:24:44] Speaker 03: Under their theory, you could object, the defendant could object at any time before the government rests and say, we object to every question asked by the prosecutor, we object to every article, every piece of evidence that came in during the trial, and they would have preserved their right to an abusive discretion standard on appeal or structural lever or whatever. [00:25:10] Speaker 03: It would swallow the rule. [00:25:12] Speaker 03: In this case, had they objected to the closing of the courtroom, there's no reason to believe that the judge would not have sustained that objection and not close the courtroom. [00:25:22] Speaker 03: They didn't say anything until five days went by. [00:25:25] Speaker 03: Then all of a sudden . [00:25:27] Speaker ?: . [00:25:27] Speaker ?: . [00:25:27] Speaker 02: If it's structural error, does it matter? [00:25:29] Speaker 02: I mean, this is, I take your point on admission of testimony and what not, but if it's true structural error, which closing a courtroom for non-trivial reasons without following the procedure is, then don't they preserve it with a motion for neutral? [00:25:48] Speaker 03: A motion for admissible. [00:25:49] Speaker 03: Haugen says you have to object. [00:25:52] Speaker 03: Otherwise, it's a plain error. [00:25:53] Speaker 03: You have to show some sort of prejudice. [00:25:55] Speaker 03: You have to show that your substantial rights are affected. [00:25:58] Speaker 02: I mean our structural error cases basically say it's structural error, it's structural error. [00:26:04] Speaker 02: They're different from plain. [00:26:06] Speaker 03: It's different than you reading out of existence Haugen. [00:26:10] Speaker 03: Haugen says structural error under Allen [00:26:13] Speaker 03: existed, but Allen, they objected, and Haugen, they didn't object. [00:26:17] Speaker 03: I mean, it's not like Mr. Mizona was not there. [00:26:21] Speaker 03: He was there. [00:26:22] Speaker 03: So, what you're saying is, anytime the court has a sidebar, for example. [00:26:27] Speaker 02: No, no, no, no. [00:26:28] Speaker 02: I'm not, you know, the Sixth Amendment only goes to [00:26:33] Speaker 02: It doesn't go to substantial closures, non-trivial closures, non-administrative closures. [00:26:38] Speaker 02: I'm just saying, if it's structural error, it's not subject to plain error. [00:26:44] Speaker 03: Then you would be overruling Ivester. [00:26:47] Speaker 03: Ivester was the exact same facts here. [00:26:50] Speaker 03: The difference was they objected. [00:26:54] Speaker 03: This court said that a judge could question a juror in chambers. [00:26:59] Speaker 03: So this judge could have questioned the three jurors in chambers without the defendant present, without counsel present, and that would have been okay. [00:27:09] Speaker 02: The difference is, I mean, I'm surprised that your argument isn't, these are trivial reasons for closing and therefore the Sixth Amendment isn't implicated, but you're casting your whole, all of your chips in on the fact that it's a plain error. [00:27:28] Speaker 03: Now we did also, I mean the court below did say they were trivial. [00:27:32] Speaker 03: We did say that in our brief. [00:27:34] Speaker 02: So why do you think they're trivial? [00:27:36] Speaker 03: Okay, so the first, first of all we say there are two closures and not three. [00:27:40] Speaker 03: The first closure had to do with this issue of whether a juror did improper research before trial and didn't tell the court about it. [00:27:50] Speaker 03: Okay, at that point there was no opening statement. [00:27:53] Speaker 03: The trial hadn't even started yet. [00:27:55] Speaker 03: And it was no different than a hardship inquiry like in Marilla was where you could do a Batson challenge in the side room. [00:28:03] Speaker 03: It was not anything that had to do with the defendant's guilt or innocence. [00:28:07] Speaker 03: It had to do with whether a particular juror conducted improper research and then concealed that from the court. [00:28:14] Speaker 03: How could it be more trivial than that? [00:28:16] Speaker 03: I mean, this is dealing with a particular juror and what the juror did, which is exactly what happened on Ivester. [00:28:26] Speaker 03: The second instance had to do with Mr. Torres. [00:28:30] Speaker 03: The only inquiry there was whether or not he needed counsel. [00:28:34] Speaker 03: That was it. [00:28:35] Speaker 03: How could it be more trivial than that? [00:28:36] Speaker 03: The judge said, Mr. Torres, you're scheduled to testify. [00:28:40] Speaker 03: Do you want, have you consulted with a lawyer? [00:28:43] Speaker 03: No. [00:28:44] Speaker 03: Do you want a lawyer to be appointed for you? [00:28:47] Speaker 03: Yes. [00:28:47] Speaker 03: And that was it. [00:28:48] Speaker 03: I mean, that's pretty trivial. [00:28:50] Speaker 03: It has nothing to do with the defendant's guilt or innocence, just whether or not this witness needs a lawyer or not. [00:28:56] Speaker 03: The other one that they claimed was a closure had to do whether or not the juror was wearing a mask. [00:29:02] Speaker 03: Surely that's true, Bill. [00:29:06] Speaker 02: And which one do you claim was not a courtroom closure, the mask one? [00:29:10] Speaker 03: The mask one, yeah. [00:29:15] Speaker 03: So the mask thing came up twice. [00:29:20] Speaker 03: The judge said, so the first time and then the third time, [00:29:26] Speaker 03: or what we call the second time, what does a courtroom close mean? [00:29:31] Speaker 03: Like is this courtroom closed? [00:29:32] Speaker 03: Obviously not. [00:29:33] Speaker 03: But if your honor said and used these words, the courtroom is closed, does that really close it either? [00:29:40] Speaker 03: The way the first and the other time occurred, someone gets up and goes and locks the door and doesn't allow anyone in, that's a closed courtroom. [00:29:50] Speaker 03: That didn't happen in that so-called second time. [00:29:52] Speaker 03: There's no evidence in there [00:29:53] Speaker 03: And that's why in the first instance, the courtroom deputy said, is the courtroom open now? [00:29:59] Speaker 03: And the judge says now the courtroom is open because she got up and she unlocked the door. [00:30:05] Speaker 03: So I have to tell you, [00:30:10] Speaker 03: I don't mean to put down the defense, but I find this whole thing bizarre. [00:30:14] Speaker 03: He sat there. [00:30:14] Speaker 03: He didn't object. [00:30:16] Speaker 03: And then five days later, he's saying, OK, the way the court should have corrected it is by granting the motion for mistrial after almost all the evidence was in. [00:30:25] Speaker 03: Not all of it, but almost all the evidence was in. [00:30:28] Speaker 03: The judge, I asked the judge, can you ask Mr. Mazzone, are they objecting to sidebars? [00:30:34] Speaker 03: And he refused to answer that question. [00:30:36] Speaker 03: And so what did the court do? [00:30:38] Speaker 03: She never held a sidebar after that, for fear that he was gonna raise that later, even though we had a whole bunch of sidebars. [00:30:45] Speaker 02: Right, sidebars are different from closing a car. [00:30:47] Speaker 03: He says no, he says no in his reply brief. [00:30:51] Speaker 03: So all I can say is there's no reason, and this whole thing about people in his office being excluded, there's no basis for that in the record. [00:31:00] Speaker 03: The judge made a factual finding that nobody was excluded from the courtroom. [00:31:04] Speaker 03: Nobody was asked to leave, nobody was prevented from entering. [00:31:07] Speaker 03: That's a factual finding that they did not challenge in their brief. [00:31:10] Speaker 03: This is the first I'm hearing in this courtroom years later that somebody from his staff was excluded. [00:31:16] Speaker 03: There's no basis for that in the record. [00:31:20] Speaker 00: Can we move on and ask you about sentencing? [00:31:23] Speaker 03: Sure. [00:31:23] Speaker 00: All right, how do we know Agor possessed a knife on January 2nd, 2020? [00:31:28] Speaker 03: I'm sorry, you said that so fast. [00:31:30] Speaker 00: Sorry, I do speak quickly. [00:31:32] Speaker 00: How do we know that Mr. Agor possessed a knife on January 2nd, 2020? [00:31:38] Speaker 03: Okay, so there was a declaration done by his supervisor that's in the record that we attached saying that he always carried a knife with him whenever he did his job for protection purposes because he was not allowed to lawfully possess a firearm. [00:31:56] Speaker 03: His wife at the time, it was now his ex-wife, testified that he always carried knives around with him. [00:32:03] Speaker 03: On the day of the [00:32:07] Speaker 03: incident with the prostitute, February 13th, he had two knives with him as well as a firearm. [00:32:13] Speaker 03: So this is a judge who presided over the trial. [00:32:17] Speaker 03: She heard that testimony. [00:32:18] Speaker 03: She made a factual finding that I don't think they're challenging, that maybe they are, but the testimony which was unrevoted that he always carried a firearm because he's carrying hundreds of thousands of dollars [00:32:32] Speaker 03: and cash around with them. [00:32:33] Speaker 03: Sometimes they're out there on their own. [00:32:35] Speaker 03: There was testimony that they're driving around on their own, and he's not allowed to possess a firearm because he didn't have a license from the county of Maui. [00:32:45] Speaker 03: So she testified he owned eight knives, and he always carried one around with him. [00:32:51] Speaker 00: Okay, so does the in connection with language require more than he carried a knife on that day because he was at work that day and he always carried a knife when he was at work? [00:33:00] Speaker 03: It's also the cutting of the seal. [00:33:02] Speaker 03: I know that was a little perhaps subtle. [00:33:04] Speaker 03: So all the seals were cut at least once. [00:33:07] Speaker 03: One seal was cut twice. [00:33:09] Speaker 03: And the testimony was that there was no need to cut it twice. [00:33:13] Speaker 03: So that was our theory of the case, and that's how they were able to take the seal off, was because it was cut twice. [00:33:21] Speaker 03: Once on the road somewhere, and then the second time in the office. [00:33:25] Speaker 03: The in-connection with is done based upon two instances, both on the date of the theft as well as on the 13th when he's spending the money and he's got all that money in his possession. [00:33:37] Speaker 03: We would submit that the factual record supports the judge's findings for both days. [00:33:43] Speaker 03: All we had to do was prove one of them. [00:33:46] Speaker 00: And tell me, what in the record supports the court's conclusion that Agor had the weapons to evade arrest? [00:33:53] Speaker 03: not to evade arrest, but to protect himself. [00:33:57] Speaker 03: Again, the declaration from Joshua Brennan that's in our supplemental excerpts of record says that his opinion, Mr. Gore, in fact he got fired because he wasn't allowed to carry that firearm, but he had the firearm in the backpack with $13,800 of money [00:34:23] Speaker 03: I'm sure there are plenty of people who go visit prostitutes who are concerned about being ripped off and robbed. [00:34:32] Speaker 03: It's in the bag. [00:34:33] Speaker 03: He's got a loaded clip that's not in the firearm, but it's in the same backpack with the money. [00:34:38] Speaker 03: He's got the $20,000 in the trunk of his car. [00:34:42] Speaker 03: I mean, the evidence in this case was really rather overwhelming, the factual evidence. [00:34:46] Speaker 03: We think that any error was harmless because of that. [00:34:50] Speaker 03: I mean, he was caught literally red-handed with the stolen money. [00:34:53] Speaker 00: There was about six weeks of a time gap between when the money was allegedly stolen or stolen and when he was caught with the prostitute. [00:35:03] Speaker 00: I'm curious as to how far does the in connection with go? [00:35:07] Speaker 00: For example, let's say you didn't catch him for two years and he had the gun on him. [00:35:12] Speaker 00: Is it still in connection with? [00:35:14] Speaker 00: Does it go back two years to say, well, when he stole the money, [00:35:18] Speaker 00: He must have had the gun on him because he always has a gun on him and he had a gun on him when he had the money that we caught him with. [00:35:24] Speaker 03: I think it's a good question. [00:35:25] Speaker 03: I think it would be very fact-specific. [00:35:27] Speaker 03: How much money do you have? [00:35:29] Speaker 03: How clearly is it from the theft? [00:35:32] Speaker 03: Now, if you didn't have the $20,000 in the trunk and just had the money in the backpack, I would probably say that would not be enough. [00:35:41] Speaker 03: I doubt we would have charged the case. [00:35:43] Speaker 03: It was the $20,000 that was strapped, showing that it was strapped on December 27, 2019, just a few days before. [00:35:52] Speaker 03: That really was the most important evidence in this case. [00:35:56] Speaker 03: So if it's say one bill, $100 bill two years later, probably not. [00:36:04] Speaker 03: Is it $200,000 two years later with all the straps still intact? [00:36:10] Speaker 03: Then I would say yes. [00:36:12] Speaker 03: So I think it would be very fact specific. [00:36:24] Speaker 03: Any more questions? [00:36:27] Speaker 03: I just wanted to highlight just a couple other things, if I might. [00:36:31] Speaker 03: So the defense in this case, again, I want to use the word gamesmanship, because that's what's going on here. [00:36:40] Speaker 03: Because by not raising that objection until five days later, then all of a sudden saying, Your Honor, you illegally closed the courtroom, grant a new trial. [00:36:51] Speaker 03: If the court would say that that's okay, and plain error does not apply, then they could do that with any, you would change trials throughout this circuit by doing that, because if you could preserve the error merely by raising it at the time before the government arrests this case, then it would swallow Rule 51. [00:37:14] Speaker 03: be whole. [00:37:16] Speaker 03: The rule says when the court ruling or order is made or sought. [00:37:20] Speaker 03: And the reason is not to preserve an issue on appeal, but it's to give the court time to correct it. [00:37:26] Speaker 03: Had they said, your honor, we object to the courtroom being closed at any time during those two or three instances, there's absolutely no reason to believe that this judge would not have said, okay, I won't close the courtroom. [00:37:39] Speaker 03: Because that's exactly what happened when I said, [00:37:42] Speaker 03: Your Honor, can you ask Mr. Mizono if he objects to side bars? [00:37:46] Speaker 03: And he refused to answer that question. [00:37:49] Speaker 03: So I know Your Honor said that they're different, but they did not acknowledge that they were different. [00:37:54] Speaker 02: I know they didn't, but there is a difference. [00:37:56] Speaker 03: Well, there's also a difference between objecting at the time and objecting five days later. [00:38:02] Speaker 03: I mean, there's no way anybody could try a case and have it error-free if the defense could preserve all objections. [00:38:11] Speaker 03: What if the trial lasted six months under their argument? [00:38:15] Speaker 03: after six months, oh your honor, we object to the closure of that courtroom that you did six months ago or five months ago. [00:38:22] Speaker 03: We object to the sidebar you did five months ago. [00:38:24] Speaker 03: We object to government's exhibit 254 from five months ago and therefore it would be reviewed under an abusive discretion or. [00:38:31] Speaker 01: Hogan, our main case on this or would there be other ones you'd point to? [00:38:36] Speaker 01: I'm sorry? [00:38:37] Speaker 01: Is Hogan or Hogan, H-O-U-G-E-N, our main case on this or are there other ones you would point to on this issue? [00:38:43] Speaker 03: On the issue of whether it's preserved, yeah, that's Haugen. [00:38:47] Speaker 03: Yeah, it's directly on point. [00:38:49] Speaker 03: So Haugen, they never raised it during the trial, and they're saying in terms of when an objection is timely, that would be the Supreme Court case of Puckett. [00:39:00] Speaker 03: I think it was Justice Scalia who said an objection has to be timely made to avoid gamesmanship or you're waiving it except for plain error. [00:39:13] Speaker 03: I believe that was Justice Scalia who wrote the bucket. [00:39:17] Speaker 03: So that's the main case. [00:39:19] Speaker 02: Well, the difference with Haugen is that he didn't raise anything during the trial at all. [00:39:23] Speaker 02: Right, but how is that any different than raising... Here we have a motion for a mistrial. [00:39:30] Speaker 03: Right. [00:39:31] Speaker 03: So the only remedy is to grant a new trial. [00:39:33] Speaker 03: That's the remedy to an objection. [00:39:36] Speaker 03: What kind of remedy is that? [00:39:37] Speaker 03: I mean, that's no different than this court reversing and saying, we're remanding for a new trial. [00:39:43] Speaker 03: So what has the court gained by it? [00:39:45] Speaker 03: I mean, if the goal is to have a fair trial for both sides, [00:39:49] Speaker 03: The objection has to be made timely. [00:39:52] Speaker 03: It's not only in rule 51, it's also in rule evidence 103A1B, A1A says only a timely objection counts. [00:40:02] Speaker 03: How could it be timely five days later? [00:40:05] Speaker 03: I was shocked when they filed that motion for mistrial. [00:40:08] Speaker 03: It's not like it was a different lawyer. [00:40:10] Speaker 03: It was by these lawyers who sat there during these three proceedings. [00:40:14] Speaker 02: Well, it's really not unusual for defense counsel to wake up and see an error and make a motion for a risk trial to preserve it. [00:40:22] Speaker 02: I mean, it happens quite a bit. [00:40:26] Speaker 02: And the only question is the merits of it. [00:40:30] Speaker 03: Well, if you're saying it happens a lot over the closure of a courtroom, neither party cited anything like that. [00:40:38] Speaker 03: There's no case law that says that. [00:40:40] Speaker 03: There may be motions for mistrial because of some other argument that you could correct without having a new trial. [00:40:50] Speaker 03: The motion for mistrial was based upon an item that came into evidence, an exhibit. [00:40:55] Speaker 03: The judge could say, okay, I now see that that exhibit was improperly admitted. [00:41:01] Speaker 03: I'm going to withdraw it and instruct the jury not to consider it and have a strong cautionary instruction. [00:41:07] Speaker 03: Okay, you've corrected the problem. [00:41:09] Speaker 03: You corrected the error. [00:41:10] Speaker 03: They can't do that. [00:41:11] Speaker 03: They couldn't rewind the TV and have these jurors come back and now open the courtroom and go through the same. [00:41:19] Speaker 02: The district court could have issued findings in accordance with press enterprise. [00:41:23] Speaker 03: There's no requirements on the Ivesta for findings or on the Haugen if it's a plain error, untimely made objection. [00:41:30] Speaker 02: Haugen, they didn't make the objection during trial at all. [00:41:32] Speaker 02: I mean, that's the difference. [00:41:34] Speaker 02: The district court could have said, all right, you've read the objection, now I'm going to make the findings and solve the problem, probably. [00:41:46] Speaker 02: In my view, we have to look at the substance of the closures. [00:41:53] Speaker 03: All I can tell you is from being in this job for 35 years, if you find that this objection was timely made, it's going to fundamentally change how trials are done. [00:42:02] Speaker 03: I don't think so. [00:42:05] Speaker 02: I mean, we've granted mandamus on courtroom closures before when nobody objected. [00:42:11] Speaker 02: So I'm just saying, you're making an argument on plain error. [00:42:17] Speaker 02: And I'm curious on the substance, but you've already answered my question. [00:42:22] Speaker 03: I would urge the court to follow I. Vester. [00:42:25] Speaker 03: Thank you. [00:42:26] Speaker 03: Thank you. [00:42:32] Speaker 04: So I just want to respond to government council's remarks about a whole host of issues. [00:42:37] Speaker 04: Number one, government council now represents that there was only two closures, but if your honors look at the excerpts of record, if your honors look at the docket sheet itself, it clearly shows three closures in red on the docket sheet. [00:42:51] Speaker 04: The government's response to my motion for mistrial, that's at 7ER1430, the government [00:42:59] Speaker 04: Concedes that there's three closures. [00:43:01] Speaker 04: So I don't know why the government is quibbling now that there's only two closures I don't know why the district court's order reflects that there was only two closures. [00:43:07] Speaker 04: There was three closures that [00:43:09] Speaker 04: The government keeps saying five days went by, but it was only one and a half trial days that went by with respect to this motion for mistrial. [00:43:17] Speaker 04: There was a weekend that book ended from when the Torres issue occurred to when the motion was filed. [00:43:22] Speaker 04: So five days. [00:43:23] Speaker 01: Would it matter under your argument? [00:43:24] Speaker 01: I mean, if the trial had gone two months and you had made it on the last day, wouldn't you still be making the same argument? [00:43:31] Speaker 04: I'd still be making the same argument and explaining to this court why we are in Allen territory and not Hogan territory. [00:43:37] Speaker 04: Hogan, there was no objection. [00:43:39] Speaker 04: The objection was made after the verdict. [00:43:42] Speaker 04: The reason why this court said that was not proper for amongst other reasons was [00:43:47] Speaker 04: we want to prevent sandbagging. [00:43:49] Speaker 04: That's not what occurred here. [00:43:50] Speaker 04: We preserved the air in front of the district court judge while the district court judge could have still issued a decision or corrected her previous decisions, but in the oral remarks in closing the courtroom and in the written order itself, no findings under Waller or Press Enterprise, zero. [00:44:07] Speaker 04: It doesn't even discuss any analysis under those four factors. [00:44:11] Speaker 04: The government also talked about [00:44:13] Speaker 02: No, but we do have to assess whether or not it rose to the level of a constitutional violation. [00:44:20] Speaker 02: And I think you've got a tougher root of hoe on that one. [00:44:26] Speaker 04: Is Your Honor asking about triviality? [00:44:28] Speaker 04: Is that what Your Honor is getting at? [00:44:30] Speaker 04: Again, that's from Rivera, ensure a fair trial, remind judge and prosecutor of their responsibility, encourage witnesses to come forward and discourage perjury. [00:44:37] Speaker 04: So again, the whole Torres issue was predicated on the fact that maybe he has exposure. [00:44:42] Speaker 04: We don't want him to commit perjury potentially if he's gonna testify as a government witness. [00:44:47] Speaker 04: So the public's right, Gore's Sixth Amendment right, to have that being done in open court when Torres himself is being called as a government witness to [00:44:57] Speaker 04: literally walk up to the witness stand and then the jury all of a sudden is not informed. [00:45:02] Speaker 04: No one knows why he's now all of a sudden missing from the trial. [00:45:06] Speaker 04: That should be done in front of the public. [00:45:07] Speaker 04: That was a violation of a Gore Six Amendment right to prepare an open public trial. [00:45:12] Speaker 04: That constituted structural error requiring a vacation of the judgment and conviction and remanding for a new trial. [00:45:18] Speaker 04: Thank you. [00:45:19] Speaker 01: Thank you very much. [00:45:21] Speaker 01: That concludes our calendar for this morning. [00:45:23] Speaker 01: We'll stand adjourned until tomorrow.