[00:00:00] Speaker 03:
Good morning, your honors.

[00:00:01] Speaker 03:
If we're ready to proceed, I am.

[00:00:04] Speaker 03:
let when we wait uh... okay go ahead may please the court your honors i'm zack rears on behalf of the appellant jonathan alan in this case and i reserve five minutes my time for a bottle the four issues or approach the court with today first starting off with speedy trial second it with insufficiency argument third and fourth of time permits the grand jury issue and then the uh... vouching prosecutor on misconduct and

[00:00:33] Speaker 03:
mismanagement issue.

[00:00:36] Speaker 03:
So starting with the speedy trial issue, Your Honors, the district court judge found a speedy trial violation on September 29th, 2023.

[00:00:46] Speaker 03:
The issue we have with it is what was the proper remedy the district court should have provided.

[00:00:53] Speaker 03:
It is our position that the district court abused its discretion when finding a dismissal without prejudice, because the district court did not take into account the government's actions

[00:01:07] Speaker 04:
And so condition to create I wanted to cut to the heart of this because it sounds like an appeal.

[00:01:14] Speaker 04:
There's no issue about the speedy trial act violation.

[00:01:17] Speaker 04:
That's that's basically conceded across the board.

[00:01:19] Speaker 04:
That's yeah.

[00:01:20] Speaker 04:
And I think you honed in on the issue, which was dismissal with prejudice with that.

[00:01:24] Speaker 04:
Is there any case that has said that the district court abused its discretion when it dismissed without prejudice?

[00:01:32] Speaker 03:
So I have not found a case in that regard.

[00:01:35] Speaker 03:
The case that I can lead the court to is the Hall case.

[00:01:39] Speaker 03:
And the Hall case, what happened in there was there was a similar type of delay where the co-defendant to Hall was continuing the case

[00:01:48] Speaker 03:
along with the government to get the cooperation of the co-defendant against Hall.

[00:01:53] Speaker 03:
We have that same thing here where the government is creating those conditions that prejudice Hall and create prejudice Allen and create that delay.

[00:02:02] Speaker 01:
Counsel, you're overlooking the factual findings of the district court, which included the fact that you were burying the district court with defense pretrial motions.

[00:02:13] Speaker 01:
and that you essentially acceded to the October trial date, although the district court acknowledged that it erred in not getting a confirmation of a waiver by your client.

[00:02:31] Speaker 03:
So two points to that.

[00:02:33] Speaker 03:
First, Alan himself asserted Speedy Trial all the way through.

[00:02:40] Speaker 03:
He opted out of,

[00:02:42] Speaker 03:
the continuous the second continuous by the co-defendants he waved his thirty-day uh... uh... uh... after superseding indictment before trial he wanted to go to trial on june fifth the district court was well aware of that but what we have on with these motions is

[00:03:02] Speaker 03:
The motions were filed timely at the pretrial deadline for the original motion.

[00:03:06] Speaker 01:
Well, for some of the motions, you filed one motion three days before trial, did you not?

[00:03:11] Speaker 01:
That is correct.

[00:03:12] Speaker 03:
That was the grand jury abuse motion.

[00:03:14] Speaker 03:
And that's because we had asked the government as early as April to provide the grand jury transcripts because we suspected there was trouble with the grand jury transcripts.

[00:03:24] Speaker 00:
But I think you're really missing the point of the question.

[00:03:28] Speaker 00:
If this is an abuse of discretion,

[00:03:32] Speaker 00:
standard of review.

[00:03:35] Speaker 00:
And you have no case saying that what the district court did here was an abuse.

[00:03:43] Speaker 00:
Then at that point, as an appellate court, we look down over the top and we say, we got no case that says it's an abuse.

[00:03:52] Speaker 00:
And this is the way you decided to do it.

[00:03:55] Speaker 00:
So I guess we're just going to have to affirm because it isn't an abuse.

[00:04:00] Speaker 00:
And that's why my colleagues questioned, Honorable Nelson, what case have you got which says that the district court was wrong, should have really honed in on you?

[00:04:12] Speaker 00:
If you don't have a case, then we can argue all day about whether why you did it, and when you did it, and what you did is right or wrong.

[00:04:21] Speaker 00:
But the district court had the first chance to look at that.

[00:04:25] Speaker 00:
And in doing that, they made the decision they did.

[00:04:29] Speaker 00:
And you got no case saying they did it wrong.

[00:04:31] Speaker 00:
So how is it an abuse?

[00:04:33] Speaker 00:
I mean, abuse says there's a case dead on that says they were wrong.

[00:04:40] Speaker 00:
Otherwise, they've got to consider the factors.

[00:04:43] Speaker 00:
And as Judge Tallman's pointing out, they considered the factors.

[00:04:47] Speaker 00:
They went through every one of the factors.

[00:04:50] Speaker 00:
The seriousness of the defense, the facts and circumstances.

[00:04:54] Speaker 00:
That's what he's on.

[00:04:55] Speaker 00:
The impact of the reprosecution on all of that.

[00:04:59] Speaker 00:
So the district court did all we've told them to do.

[00:05:02] Speaker 00:
They just came out a different way than you did, and you got no case against.

[00:05:06] Speaker 03:
But the point I'm making, Your Honor, is the cases that I cited, whether it's Hall,

[00:05:10] Speaker 00:
Hall is a good case but it doesn't help you because again it's abuse of discretion.

[00:05:16] Speaker 03:
What it did, the subsequent history of that, Hall was sent back to the district court and the district court had to go back through the 3162 factors.

[00:05:26] Speaker 00:
Well, at this time the court went through the 3162 factors.

[00:05:30] Speaker 03:
And what I'm arguing is that the district court did abuse that discretion because it ignored the government presenting the conditions such as

[00:05:40] Speaker 03:
not getting the Facebook page and having knowledge of it.

[00:05:42] Speaker 00:
Those are great arguments that you want to make, but you made them to the district court.

[00:05:47] Speaker 00:
And the district court looked at all the stuff in front of it, looked at all the things that went by, and using the 3162A factor said, hey, guess what?

[00:05:59] Speaker 00:
We're going to make this without, without,

[00:06:03] Speaker 00:
Absolute dismissal.

[00:06:04] Speaker 00:
We're going to give him another chance.

[00:06:06] Speaker 00:
And now I'm on appeal, and you want me to look over the top of that and say to him or her, that's wrong.

[00:06:13] Speaker 00:
But I got no case to say it's wrong.

[00:06:16] Speaker 03:
Well, and that sometimes can be an issue of first impression, Your Honor.

[00:06:21] Speaker 00:
Well, it's not a necessarily reissue of first impression.

[00:06:24] Speaker 00:
It means on an abuse of discretion standard, it wasn't an abuse.

[00:06:28] Speaker 00:
So we move to the next issue.

[00:06:30] Speaker 00:
That's really not your best issue.

[00:06:32] Speaker 03:
Well, moving on to the next issue, Your Honors, at that point.

[00:06:43] Speaker 03:
You want to go to evidentiary one?

[00:06:45] Speaker 03:
Yes, Your Honor.

[00:06:46] Speaker 03:
The insufficiency of the evidence.

[00:06:48] Speaker 03:
So the government's theory of the prosecution in this case, at least starting with counts one and count two.

[00:06:54] Speaker 03:
Count one was a conspiracy charge.

[00:06:56] Speaker 03:
The government's theory of prosecution there was that Fisher

[00:07:01] Speaker 03:
Allen and Brown conspired together to further distribute drugs to the agent.

[00:07:06] Speaker 03:
Count two is the theory of prosecution there is Allen aided and abetted Fisher to distribute to the agents.

[00:07:14] Speaker 03:
The thing is, is the transcripts or the testimony of Fisher and the testimony of Brown dispute that because the testimony of Brown, starting with count one,

[00:07:27] Speaker 03:
shows a single transaction and along with the testimony of Fisher, a single transaction and a buyer-seller relationship.

[00:07:35] Speaker 03:
Buyer-seller relationship meaning that Brown testified he could go on a Facebook page where they were selling drugs, they were selling stolen items.

[00:07:46] Speaker 03:
All these people could communicate in this Facebook group and then they go to a... And that was John Allen's page, right?

[00:07:51] Speaker 03:
The page that ultimately came up

[00:07:54] Speaker 03:
was the Jonathan Allen Facebook page, that's correct.

[00:07:57] Speaker 01:
With his picture on it.

[00:07:58] Speaker 01:
Yes.

[00:07:58] Speaker 01:
Which the agents matched.

[00:08:01] Speaker 01:
Two months after the fact.

[00:08:02] Speaker 01:
To your counsel sitting in the car at the scene of the first drug transaction and the second delivery of the firearm transaction.

[00:08:11] Speaker 03:
That's the guy.

[00:08:12] Speaker 03:
But on the 27th, going back to that night of the first drug transaction, and this gets to count too, he's not participating.

[00:08:21] Speaker 01:
and and trying to explain how that you're using participate in the sense that he he's not having the face-to-face interchange with the undercover agent but he's certainly president but he's merely the scene and then we have the testimony of fisher

[00:08:37] Speaker 01:
later in the trial that links him to being the source of supply for the drugs and the firearm.

[00:08:47] Speaker 01:
So under the, what is it, Virginia case, we have to view the evidence alike most favorable to the government on Rule 29 motion.

[00:08:58] Speaker 01:
Why is that insufficient evidence to support a rational jury verdict of proof beyond a reasonable doubt?

[00:09:05] Speaker 03:
Because when Fisher, and starting with count one again, when Fisher and Brown testified, you have Brown testifying that it's a bioseller relationship.

[00:09:15] Speaker 03:
They could go to anyone they could.

[00:09:17] Speaker 03:
Along with Fisher testifying, he did not tell Brown or Allen what he was going to do with those drugs.

[00:09:26] Speaker 03:
There was no indication that it was going to be for future dealing by Fisher.

[00:09:31] Speaker 03:
He didn't indicate that.

[00:09:32] Speaker 01:
In the face of all of these Facebook text messages?

[00:09:38] Speaker 03:
Even then, those text messages only show a facilitation between Brown and Fisher to meet and

[00:09:46] Speaker 03:
in the transaction between them.

[00:09:48] Speaker 03:
Alan didn't touch the drugs.

[00:09:49] Speaker 03:
He didn't have a financial stake in them.

[00:09:52] Speaker 03:
He didn't get the money.

[00:09:54] Speaker 03:
It's pretty clear it's a buyer-seller relationship.

[00:09:57] Speaker 03:
They're not a conspiracy.

[00:09:58] Speaker 03:
What about the firearm?

[00:10:00] Speaker 03:
The firearm is a different knife.

[00:10:01] Speaker 03:
The conspiracy

[00:10:03] Speaker 03:
So you agree there's sufficient evidence to support the firearm charge?

[00:10:07] Speaker 01:
That's a weaker argument compared to the count one and count two.

[00:10:11] Speaker 01:
Well, is that yes or no?

[00:10:13] Speaker 01:
I'm sorry?

[00:10:13] Speaker 01:
Is that yes or no?

[00:10:14] Speaker 01:
Do you concede that the evidence was sufficient to support a rational jury verdict of the firearm violation?

[00:10:22] Speaker 01:
It's pretty strong evidence.

[00:10:25] Speaker 03:
That particular one, I would concede that on count three.

[00:10:27] Speaker 00:
Are we talking about Plaza?

[00:10:29] Speaker 00:
I'm sorry?

[00:10:30] Speaker 00:
Are we talking about the firearm at the plaza now?

[00:10:32] Speaker 03:
Correct.

[00:10:33] Speaker 00:
How about the casino?

[00:10:35] Speaker 00:
Will you concede that as well?

[00:10:36] Speaker 03:
Had to, Your Honor, because it's obvious in the fond video, unfortunately.

[00:10:41] Speaker 03:
But going back to counts one and two, again, I got to bring the court back to counts one and two.

[00:10:50] Speaker 03:
Because you have a conspiracy charge

[00:10:54] Speaker 03:
The problem you have is going, I'm driving you back to Fisher's testimony.

[00:10:58] Speaker 03:
He said Allen didn't touch it.

[00:11:00] Speaker 03:
Fisher did not communicate to Allen or Brown what he was going to do with those drugs.

[00:11:05] Speaker 03:
He could have kept them for himself.

[00:11:06] Speaker 03:
But as we go further in time, Fisher testifies that he drove Allen.

[00:11:13] Speaker 03:
He eventually tells Alan on the drive, I'm going to sell these.

[00:11:18] Speaker 03:
And Fisher explains on the stand what Alan said.

[00:11:24] Speaker 03:
And Alan said, I want to go home.

[00:11:27] Speaker 03:
I want out of the car.

[00:11:29] Speaker 03:
He doesn't want any part of it.

[00:11:30] Speaker 03:
And it's pretty clear.

[00:11:31] Speaker 03:
And when you look at the videos that I submitted that confirm that, who goes into the car with the agents?

[00:11:38] Speaker 03:
Fisher does.

[00:11:39] Speaker 03:
Who does the deal with the agents?

[00:11:40] Speaker 03:
Fisher.

[00:11:41] Speaker 03:
Allen's over here, merely present, sitting in the car.

[00:11:45] Speaker 01:
Why isn't that consistent with your client basically being the prince behind the curtain and asking his flunky to run the risk that he might be dealing with undercover federal agents or cooperating informant in a drug deal?

[00:12:07] Speaker 03:
On the premise of the question, I would have to disagree.

[00:12:09] Speaker 03:
He's not as flunky because they didn't know each other before they didn't really know each other.

[00:12:13] Speaker 01:
Well, yeah, but I mean, he's basically asking Fisher to assume the majority of the risk.

[00:12:18] Speaker 01:
That's the thrust of my question.

[00:12:22] Speaker 01:
Couldn't a rational jury so conclude?

[00:12:24] Speaker 03:
No, Your Honor, because Fisher was doing his own drug dealing with many other people as well, and he testified to that fact.

[00:12:32] Speaker 03:
So they're not in a joint agreement together.

[00:12:37] Speaker 03:
What they're not in is having a continuing series of transactions for drugs.

[00:12:42] Speaker 00:
It's not there.

[00:12:44] Speaker 00:
Are you really presenting this evidence that we're talking about here in the light most favorable to the prosecutor?

[00:12:54] Speaker 00:
You're making your argument to me today.

[00:12:57] Speaker 00:
Because the standard of review would suggest

[00:13:02] Speaker 00:
that you're going to only win if you present that evidence in the light most favorable to the prosecutor.

[00:13:12] Speaker 00:
Now, you can make all your arguments you want to, and there are many which are made to a jury.

[00:13:18] Speaker 00:
But when you're in front of me, you've got to change your argument.

[00:13:21] Speaker 00:
You've got to give the prosecutor every benefit of the doubt of the evidence and then say you win.

[00:13:28] Speaker 00:
And I don't think you've done that.

[00:13:30] Speaker 00:
You presented your best defense argument, but you really haven't given the prosecutor the benefit of the doubt on the evidence.

[00:13:38] Speaker 00:
Well, let's walk through that.

[00:13:39] Speaker 00:
All right.

[00:13:40] Speaker 03:
That's why I'm trying to get you to do.

[00:13:42] Speaker 03:
The evidence that the government was trying to present at trial was the Facebook pages, the text messages, the videos,

[00:13:50] Speaker 03:
Every and all the audio phone calls with Fisher throughout the entire trial.

[00:13:55] Speaker 03:
I'm including everything that we can see the post The messages.

[00:14:01] Speaker 00:
Yes, they responded that he had seven rips.

[00:14:04] Speaker 00:
Yeah, but here's the thing He responded he wanted all seven of the rips he began coordinating with Brown and Fisher to get it done and

[00:14:14] Speaker 00:
Yeah.

[00:14:15] Speaker 00:
Told Fisher that he would have to come to McDonald's and get him before the deal?

[00:14:20] Speaker 00:
I mean, all of those are there.

[00:14:22] Speaker 00:
Then you got a cooperator who says, Fisher confirmed that the picture was the same person who was in the car?

[00:14:29] Speaker 03:
Even then, even then, Your Honor, with all those pieces of evidence, even then it doesn't show a conspiracy to distribute downstream to the agent because Fisher never presented that to anyone.

[00:14:43] Speaker 03:
I understand your argument.

[00:14:45] Speaker 03:
But that's what I'm saying is even with those text messages, it doesn't show conspiracy.

[00:14:49] Speaker 03:
It shows a single transaction.

[00:14:51] Speaker 01:
And I assume that's the argument you made to the jury.

[00:14:54] Speaker 01:
Yes.

[00:14:54] Speaker 01:
Yeah.

[00:14:55] Speaker 01:
And they didn't buy your argument.

[00:14:57] Speaker 03:
And that's why we believe the jury was unreasonable in its conclusion.

[00:15:02] Speaker 03:
Because they convicted on the basis of that evidence?

[00:15:05] Speaker 01:
That's your argument?

[00:15:07] Speaker 03:
That's part of the argument, not the whole argument.

[00:15:10] Speaker 00:
The whole argument is... The trouble comes in the light most favorable.

[00:15:14] Speaker 00:
That's the trouble.

[00:15:15] Speaker 00:
Yeah.

[00:15:16] Speaker 00:
Because you can make a good argument, and frankly, you've convinced me you would have made a great argument even to that jury.

[00:15:22] Speaker 00:
But I'm just saying, you've got a different panel here.

[00:15:27] Speaker 00:
This isn't the jury who can be convinced by your argument.

[00:15:30] Speaker 00:
This is the panel that gives everything to the prosecutor, and then you've got to say, there's nothing there.

[00:15:36] Speaker 00:
And I frankly don't agree with you after all of that.

[00:15:39] Speaker 00:
Well, that's what I'm saying.

[00:15:39] Speaker 00:
So go to the next issue.

[00:15:41] Speaker 03:
So the next issue, Your Honor, with time.

[00:15:43] Speaker 03:
Do we still have enough time, I believe?

[00:15:44] Speaker 04:
Well, you have the time if you want to reserve.

[00:15:47] Speaker 04:
I mean, you can go to the next issue.

[00:15:49] Speaker 03:
I was reserved the five minutes in a moment, Your Honor.

[00:15:53] Speaker 03:
So the last issue time permitting is the grand jury abuse issue.

[00:15:58] Speaker 03:
And we believe that the district court erred in its determination because there are two primary questions in the initial grand jury meeting, which we believe were perjury.

[00:16:13] Speaker 03:
And the two questions that perjured the witness.

[00:16:15] Speaker 00:
Just a minute.

[00:16:15] Speaker 00:
Are there only two instances of abuse that we're talking about here?

[00:16:19] Speaker 00:
There were more in the district court, but these were the ones we wanted to focus on.

[00:16:22] Speaker 00:
These are the only ones we're really talking about?

[00:16:24] Speaker 00:
That we're really talking about here today.

[00:16:25] Speaker 00:
All right.

[00:16:26] Speaker 00:
I'm just making sure.

[00:16:26] Speaker 03:
Yes.

[00:16:27] Speaker 03:
And that's why I had a footnote in my brief that there were more.

[00:16:29] Speaker 00:
I did.

[00:16:30] Speaker 00:
That's what I was going to refer you to.

[00:16:32] Speaker 00:
OK.

[00:16:32] Speaker 03:
So I know where we are.

[00:16:34] Speaker 03:
Thank you, Your Honor.

[00:16:35] Speaker 03:
The two questions are, did the undercover then meet with Mr. Fisher and Mr. Allen on October 28th?

[00:16:40] Speaker 03:
Answer was yes.

[00:16:42] Speaker 03:
Did Mr. Allen provide the undercover with a nine millimeter handgun for sale?

[00:16:45] Speaker 03:
Answer, yes.

[00:16:47] Speaker 03:
What that implies, you cannot look at those in isolation, but what that implies is that Allen was physically or actually met and interacted with the agents and he physically handed the gun to them.

[00:17:00] Speaker 03:
What we argued in the district court, what we're still arguing now is that

[00:17:04] Speaker 03:
The videotapes, the reports clearly show that Alan and the agents never met.

[00:17:10] Speaker 03:
And he never physically met him.

[00:17:11] Speaker 00:
What is your burden of proof on this?

[00:17:16] Speaker 03:
I know my standard review was de novo.

[00:17:18] Speaker 03:
The burden of proof was... Oh, well, they know it's de novo, and I'm the one who's going to make it.

[00:17:23] Speaker 00:
But what's your burden of proof?

[00:17:25] Speaker 00:
The burden of proof is that it has to be... The prosecutor engaged in flagrant

[00:17:32] Speaker 00:
And I emphasize flagrant misconduct that deceived the grand jury and significantly impaired its ability to exercise independent judgment.

[00:17:48] Speaker 00:
Now think about what you're arguing.

[00:17:51] Speaker 00:
You're arguing that because somebody

[00:17:56] Speaker 00:
and I have heard said or said whatever, they didn't exactly say it the way you would want it said, which is what the district court said.

[00:18:05] Speaker 00:
They just are overemphasizing certain words.

[00:18:09] Speaker 00:
And frankly, that's not abuse.

[00:18:12] Speaker 00:
We're arguing that it was material.

[00:18:14] Speaker 00:
Oh, I know you are, but I'm just trying to say it's got to be flagrant.

[00:18:20] Speaker 00:
It's got to be deceptive.

[00:18:23] Speaker 00:
It's got to be significantly impairing.

[00:18:29] Speaker 03:
Here's where it's deceptive, Your Honor, and where we argue it's deceptive, is it is telling the grand jury that Allen gave the firearm to them physically.

[00:18:39] Speaker 03:
No Fisher, nobody.

[00:18:41] Speaker 03:
It's saying he gave it to them, and he handed it to him, he met them.

[00:18:45] Speaker 03:
when you have evidence that's completely different that says they never met him one time.

[00:18:51] Speaker 01:
But the trial verdict shows that the jury concluded that he was the source of the drugs and the firearm and that he provided that contraband knowing that it was going to be used in a transaction with a buyer and that the transaction was illegal.

[00:19:12] Speaker 01:
In light of the jury's verdict,

[00:19:14] Speaker 01:
And the grand jury's determination based on this challenge testimony that there was probable cause to return the indictment.

[00:19:24] Speaker 01:
Where's the harm here?

[00:19:26] Speaker 03:
The harm comes in when it wasn't corrected by the prosecutor on the subsequent grand jury indictments.

[00:19:36] Speaker 03:
and it was material because it implies that he met those agents, that he was the one that physically handed it to him, which is not accurate.

[00:19:43] Speaker 01:
Under an aiding and abetting theory, which is essentially what conspiracy is,

[00:19:48] Speaker 01:
He's guilty beyond a reasonable doubt, according to the Pettit jury.

[00:19:53] Speaker 01:
So I'm still, there's a disconnect in your argument between a grand jury determination of probable cause based on kind of loosey goosey testimony that, you know, wasn't as precise as all the evidence that the government marshaled.

[00:20:07] Speaker 01:
to convince the trial jury beyond a reasonable doubt that he was guilty.

[00:20:11] Speaker 01:
But the bottom line is he's convicted.

[00:20:14] Speaker 01:
And the grand jury was right.

[00:20:15] Speaker 01:
There was probable cause to charge him with these offenses.

[00:20:20] Speaker 01:
I would respectfully disagree with that, Your Honor, because of the... You don't think the grand jury would have indicted if they had known all the things that the petit jury learned?

[00:20:30] Speaker 03:
I think if they were informed by the government about that and corrected about it,

[00:20:37] Speaker 03:
then I would just leave the fact that they didn't correct it as the problem, ultimately.

[00:20:45] Speaker 03:
And I see my time has passed.

[00:20:47] Speaker 03:
We'll give you a couple minutes for rebuttal.

[00:20:49] Speaker 04:
OK.

[00:20:49] Speaker 03:
Thank you, Your Honor.

[00:20:50] Speaker 03:
Thank you.

[00:21:04] Speaker 02:
May I proceed?

[00:21:05] Speaker 02:
Good morning, Your Honors.

[00:21:07] Speaker 02:
David Herzog on behalf of the United States.

[00:21:09] Speaker 02:
I was also a trial counsel below.

[00:21:11] Speaker 02:
Before I begin, I want to thank the Court for sitting in Coeur d'Alene.

[00:21:14] Speaker 02:
And it's a big circuit for those of us who don't live in Seattle, San Francisco, Portland, or Los Angeles.

[00:21:19] Speaker 02:
It's a great opportunity to get to let the public and law students see the Court's important work.

[00:21:24] Speaker 00:
Well, we just came up to have a hearing where our good colleague Lips

[00:21:29] Speaker 00:
and breathes and works.

[00:21:31] Speaker 00:
So you don't need to thank us too much.

[00:21:33] Speaker 01:
I'm delighted they're here, too.

[00:21:38] Speaker 02:
I will say this, Your Honor.

[00:21:39] Speaker 02:
I'm not going to name names, but there's at least one law student here who is missing the last day of classes at Gonzaga just to be here for the argument.

[00:21:45] Speaker 02:
So I do think it's important and well-received.

[00:21:47] Speaker 02:
Well, then you better do a really good job and impress her.

[00:21:50] Speaker 02:
I'll do my best, your honor.

[00:21:51] Speaker 02:
May it please the court.

[00:21:54] Speaker 02:
The evidence here was overwhelming.

[00:21:55] Speaker 02:
I think that the court has been pointing at that throughout the questioning.

[00:21:59] Speaker 02:
In addition to the text messages, the cell phone records, the recorded calls, the Facebook records, the five witnesses who identified Alan at trial, one of whom was his own sister, the undercover agent who said that's the same guy 100% the second day,

[00:22:17] Speaker 02:
and everything John Allen said in his own Facebook messages to set up and complete the drug transaction, make it clear that the evidence here was overwhelming.

[00:22:27] Speaker 02:
But I will take the defendant's arguments in turn.

[00:22:30] Speaker 02:
So with regard to the dispensable without prejudice, the government argued below, and I do, to answer Judge Nelson's question about whether or not we all agree that there was no speeding trial violation, the government does not.

[00:22:41] Speaker 02:
The fact that the defense lawyer said

[00:22:44] Speaker 02:
in a conversation about when is the trial date realistic on the Friday before the Monday trial date on the day that motions had been filed and the judge said what about October 2nd and counsel said October 2nd works for me.

[00:22:57] Speaker 02:
The United States would submit that is agreeing to the continuance.

[00:23:01] Speaker 02:
It is true that Mr. Allen pursued his speedy trial rights throughout the case.

[00:23:06] Speaker 04:
So you aren't conceding that there actually was a violation, even though the district court found there was a violation.

[00:23:13] Speaker 02:
That's correct.

[00:23:14] Speaker 04:
But here, for practical, I mean, I guess we could go back into that issue.

[00:23:18] Speaker 04:
Thank you for clarifying it, but really we're here on

[00:23:21] Speaker 04:
Dismissal without prejudice versus dismissal with prejudice.

[00:23:24] Speaker 02:
Yeah, that's absolutely right, your honor.

[00:23:26] Speaker 02:
And with the dismissal without prejudice, I don't think there's any question that the district court did not abuse its discretion for the reasons the court was indicating with my friend.

[00:23:36] Speaker 02:
The three factors are seriousness of the offense, the facts leading to the dismissal, and then the impact of reprosecution on the administration of justice.

[00:23:44] Speaker 02:
We all agree, very serious conduct.

[00:23:46] Speaker 02:
The defense concedes that.

[00:23:48] Speaker 02:
And then with regard to the facts leading to the dismissal, Judge Talman put his finger right on it.

[00:23:53] Speaker 02:
Council filed a motion that day.

[00:23:56] Speaker 02:
You can either file motions and litigate, or you can proceed to trial on the first date.

[00:24:00] Speaker 02:
But if there's a conflict, you can't do both at the same time.

[00:24:03] Speaker 02:
And that's 3161H.

[00:24:05] Speaker 02:
That's the speedy trial act that says, until the resolution of the motion, the court shall exclude the speedy trial time.

[00:24:12] Speaker 02:
And so here, it is essentially an untenable position to file a motion and then insist on trial three days later.

[00:24:20] Speaker 02:
The court needs time.

[00:24:21] Speaker 02:
The government needs time to respond to that substantive motion.

[00:24:25] Speaker 02:
And also, as Judge Talman notes, there were already seven outstanding motions that were orally resolved, some of which were orally resolved on the record that day, but the written order didn't come out until after the June 5th date.

[00:24:36] Speaker 00:
Why don't we move to impact of the delay?

[00:24:39] Speaker 00:
Your opposition counsel suggests that the only reason there was any delay and the only reason you wanted delay was that it was your chance to bolster your case.

[00:24:53] Speaker 00:
How do you respond to that?

[00:24:54] Speaker 02:
Your Honor, I don't think I can do it better than the district court did, which is to say, and this is at ER 29, there is no evidence that the government intentionally delayed trial just to bolster its case.

[00:25:05] Speaker 02:
And defendant was, at least theoretically, similarly able to bolster his case during the delay.

[00:25:11] Speaker 02:
The court found for three reasons that the factors leading to the dismissal warranted dismissal without prejudice.

[00:25:18] Speaker 02:
And the first was that there was a conspiracy charge.

[00:25:21] Speaker 02:
that had recently been filed right after we interviewed the lead defendant.

[00:25:25] Speaker 02:
We superseded with a conspiracy charge that was not in the original indictment.

[00:25:29] Speaker 02:
Well, those other defendants need a chance to get their defense ready to the court noted the conspiracy charge having been filed was one of the reasons for the dismissal.

[00:25:38] Speaker 02:
Second, the court specifically found no bad faith.

[00:25:43] Speaker 02:
The government did not act in any way to delay, and the defendant filed the motion.

[00:25:48] Speaker 02:
And then the third, I think Judge Peterson got it right when she said, look, I'm not even sure this is a speedy trial violation, but my order could have been clearer.

[00:25:56] Speaker 02:
Well, if this is a technical violation like in Medina,

[00:26:00] Speaker 02:
that the basis for the 3161 continuance was there, but the court failed to articulate it.

[00:26:06] Speaker 02:
And I would submit that had the defense said at that June 2nd hearing, wait, Judge, no date in October, I am going to seek my speeding trial rights right this minute, Judge Peterson would have been on notice to make the requisite record to find an ends of justice continuance.

[00:26:24] Speaker 02:
But that's not what happened.

[00:26:25] Speaker 02:
Instead, counsel said, that works for me.

[00:26:27] Speaker 02:
That date works for me.

[00:26:29] Speaker 02:
And so I would submit to the court that the facts leading to the dismissal, none of those were facts that warrant dismissal with prejudice.

[00:26:39] Speaker 00:
And in fact, did the trial take place 12 days from the dismissal?

[00:26:46] Speaker 02:
There were 12 non-excluded days, and then the actual trial took place about a month after we reindicted.

[00:26:53] Speaker 02:
And that's another thing Judge Peterson found, which is that essentially the trial was delayed by a month after the resolution of the motions and excluded time, which didn't impact the defendant's overall administration of justice.

[00:27:08] Speaker 02:
I would submit to the court, my friend keeps referring to the Hall case, which Judge Smith notes is not on point here.

[00:27:15] Speaker 02:
in part.

[00:27:17] Speaker 02:
because Hall was a delay specifically for a co-defendant to cooperate, and the district court made no record.

[00:27:24] Speaker 02:
The district court didn't even find, didn't make speedy trial findings.

[00:27:28] Speaker 02:
Well, that's not what happened here.

[00:27:29] Speaker 02:
This is not a co-defendant motion.

[00:27:31] Speaker 02:
This is the defendant's motion filed three days before trial.

[00:27:35] Speaker 02:
So it's just not apposite.

[00:27:37] Speaker 02:
The case that does control, the case that resolves this issue is Medina, in which the dismissal without prejudice was found to be proper

[00:27:46] Speaker 02:
Because the because it's technical violation, even though that was also a co-defendant motion in a conspiracy case, so not dissimilar from here.

[00:27:55] Speaker 02:
Also, in terms of the I don't think Council is pursuing the 6th Amendment speedy trial claim, particularly aggressively, but even so.

[00:28:03] Speaker 02:
In Medina, it was a 21-day delay, and here it's 12.

[00:28:06] Speaker 00:
But honestly, I'm not sure Medina or Hall control on an abuse of discretion, so I don't know how much argument you need to put into it.

[00:28:16] Speaker 00:
If it's an abuse of discretion and there's no case dead on point that says it's an abuse,

[00:28:22] Speaker 00:
Then, guess what?

[00:28:24] Speaker 00:
I'm without power, really, as long as they do the factors which you've already argued.

[00:28:31] Speaker 00:
Wouldn't you agree?

[00:28:32] Speaker 02:
I do agree, Your Honor, and I'll... All right, then I'd move on.

[00:28:34] Speaker 02:
I'll say to the court what I say to our externs... That's called a softball question.

[00:28:38] Speaker 02:
No one to sit down.

[00:28:39] Speaker 02:
Yes, Your Honor.

[00:28:40] Speaker 02:
Then I think the next argument from the defense is the purported grand jury abuse.

[00:28:46] Speaker 02:
And here, you know, Judge Smith, I think, articulated the standard, which is from Almudara's flagrant misconduct that deceived the grand jury or significantly impaired its ability to render exercise independent judgment.

[00:29:00] Speaker 02:
That is just not what happened here.

[00:29:02] Speaker 02:
Even the language that my friend just cited to the court, I think he conceded because if you're going to acknowledge that John Allen knowingly possessed a firearm at the bus plaza, well then he certainly brought the gun to the plaza and then he provided the gun, which is the alleged perjurious statement.

[00:29:18] Speaker 02:
There's a wide delta between the interpretation of a word like met or provide and perjury.

[00:29:26] Speaker 02:
I mean, perjury's a crime.

[00:29:28] Speaker 02:
The idea that the agent couldn't say to the grand jury that Fisher, Allen, and the undercover met at Walmart when they arranged to meet at Walmart and then Fisher and Allen showed up in Fisher's car

[00:29:46] Speaker 02:
to the place in the parking lot where the undercover was.

[00:29:50] Speaker 02:
I think anybody would say that is meeting, but certainly it's not perjury for the agent to testify that they met that way.

[00:29:57] Speaker 02:
And then with regard to the provision, did Mr. Allen provide the gun on the second day on the 28th?

[00:30:03] Speaker 02:
I refer the court to 2ER 292.

[00:30:07] Speaker 02:
It's Fisher's testimony that Allen brought the gun in his backpack, got into Fisher's car, took the gun out with rags rather than touching it himself, gave it to Fisher to sell to the undercover.

[00:30:18] Speaker 02:
So he clearly both met and provided by any definition.

[00:30:22] Speaker 02:
And so I would just submit to the court that the idea that that is in any way perjurious or rises to the significantly high level of grand jury abuse, it doesn't hold water.

[00:30:34] Speaker 00:
Well as to that charge, we're really arguing over whether because the officers never saw the defendant hand over the gun that he provided it for the sale.

[00:30:45] Speaker 00:
Isn't that what we're arguing about?

[00:30:47] Speaker 02:
You know, I think so, but I think the record at trial clearly belies that because Fisher testified the agents could see the Fisher and a blackmail that they had not yet identified as Alan were in Fisher's car.

[00:30:59] Speaker 02:
They agent testified.

[00:31:00] Speaker 02:
I saw them go into in between them and Russell was something Fisher testified.

[00:31:04] Speaker 02:
Yeah, Alan brought the gun in the backpack.

[00:31:07] Speaker 02:
and then he took out of the backpack and gave it to me and I sold it to the agents.

[00:31:10] Speaker 02:
That's providing the gun on the standard of the grand jury testimony from an agent who can testify to hearsay, et cetera, and be led.

[00:31:19] Speaker 02:
So I think Judge Tallman's point on this I think is the right one, which is if the petit jury can convict on all four charges, there's no way to say that met and provide was somehow improper the way it was testified to before the grand jury, a probable cause standard.

[00:31:37] Speaker 02:
Your honor, those are my responses to the points counsel made.

[00:31:44] Speaker 04:
I'm happy to take any questions.

[00:31:45] Speaker 04:
Can I turn you to the prosecutorial misconduct?

[00:31:47] Speaker 02:
Yes, your honor.

[00:31:48] Speaker 04:
Is there anything you'd want to say in response to that claim?

[00:31:52] Speaker 02:
Yes, your honor.

[00:31:53] Speaker 02:
I think it's meritless across the board.

[00:31:55] Speaker 02:
There are four claims of alleged prosecutorial misconduct here.

[00:32:03] Speaker 04:
I'm not necessarily disagreeing with you that it's meritless across the board, but let me point to some of the emails that they cite to.

[00:32:10] Speaker 04:
You've read the emails that you sent.

[00:32:12] Speaker 04:
Absolutely, Your Honor.

[00:32:13] Speaker 04:
In hindsight, would you send those same emails again?

[00:32:18] Speaker 02:
Yes, I would.

[00:32:19] Speaker 02:
And I will tell the court why.

[00:32:20] Speaker 04:
OK, counsel, then let me just go this way with it.

[00:32:28] Speaker 04:
There was no misconduct here.

[00:32:29] Speaker 04:
I want to be clear.

[00:32:30] Speaker 04:
You've been very professional.

[00:32:32] Speaker 04:
Let me read one of these.

[00:32:36] Speaker 04:
This is from you.

[00:32:37] Speaker 04:
This is at ER 14, ER 3637.

[00:32:41] Speaker 04:
I've done all I can do here.

[00:32:43] Speaker 04:
No more offers will be made and this dude is doing at least the next 10 years in the big house.

[00:32:50] Speaker 04:
You would send that email again.

[00:32:51] Speaker 02:
Your Honor, in the context of the preceding several pages of emails in which I

[00:32:58] Speaker 02:
went to the greatest lengths possible to help make sure that the defendant understood the exposure he was facing and giving him the ample opportunity to get out and under that.

[00:33:08] Speaker 04:
OK.

[00:33:09] Speaker 04:
You're not helping yourself here.

[00:33:10] Speaker 04:
Just take a gentle suggestion.

[00:33:13] Speaker 04:
I've worked for the United States.

[00:33:16] Speaker 04:
There's no greater honor than being able to come into court and say, I'm here representing the United States.

[00:33:21] Speaker 04:
I've also worked for private clients.

[00:33:23] Speaker 04:
There are things I would say when I was representing a private client.

[00:33:28] Speaker 04:
that I would not say when I was representing the United States.

[00:33:32] Speaker 04:
And I was hoping you'd come in and say, in hindsight, I could have worded this differently.

[00:33:38] Speaker 04:
It's not misconduct.

[00:33:39] Speaker 04:
It's not misconduct.

[00:33:42] Speaker 04:
Take your duty seriously.

[00:33:45] Speaker 04:
And I would suggest that it's not appropriate for a US, somebody working and representing for the United States when they're talking about,

[00:33:58] Speaker 04:
criminal capacity, someone lose their liberty to talk about and even reference this dude is at least spending the next 10 years in the big house.

[00:34:09] Speaker 04:
Just work on the tone.

[00:34:11] Speaker 04:
Just work on the tone.

[00:34:12] Speaker 02:
Very well, your honor.

[00:34:13] Speaker 02:
I take the court's point, and certainly that one sentence, if I had the chance to write it again today, I would write it in a different way.

[00:34:19] Speaker 02:
OK.

[00:34:19] Speaker 02:
You gave me what I wanted.

[00:34:20] Speaker 04:
Let's move on.

[00:34:21] Speaker 04:
That's all that needs to be said.

[00:34:23] Speaker 02:
All right.

[00:34:23] Speaker 02:
I would also just point the court to the many other times at which I complimented counsel.

[00:34:28] Speaker 04:
I give it.

[00:34:29] Speaker 04:
I want to make clear.

[00:34:30] Speaker 04:
You've been nothing but professional in this courtroom.

[00:34:33] Speaker 04:
You handled this case with the utmost integrity.

[00:34:39] Speaker 04:
I'm not questioning that.

[00:34:40] Speaker 04:
I'm just saying.

[00:34:42] Speaker 04:
Remember, the United States is a great, and I know you agree with that.

[00:34:46] Speaker 02:
It's a great honor.

[00:34:46] Speaker 02:
I do, Your Honor.

[00:34:47] Speaker 02:
That note is taken.

[00:34:48] Speaker 04:
Okay.

[00:34:51] Speaker 01:
If the court has no other... I just have one kind of housekeeping matter.

[00:34:55] Speaker 01:
I noticed there's no Ninth Circuit law with regard to the admission of the Facebook.

[00:35:02] Speaker 01:
Would it be helpful if we published on that issue?

[00:35:05] Speaker 02:
Yes, Your Honor, it would, if I may, and I think it may be helpful for the people in the room as well who maybe haven't authenticated a lot of Facebook records, there's almost no trial these days that does not have some social media evidence that needs to get in.

[00:35:18] Speaker 02:
And so I think perhaps this is in some ways a perfect case to publish on this is how you get Facebook records into evidence, because the challenge is both the admissibility of the 902.11 and the 403.404 challenge.

[00:35:32] Speaker 02:
So if the court permit me.

[00:35:33] Speaker 02:
So what a Facebook custodian of records or any custodian of records can do is say, these records are our records.

[00:35:42] Speaker 02:
Mr. Herzog didn't type these up.

[00:35:45] Speaker 02:
These are actual Facebook records.

[00:35:47] Speaker 02:
They were sent from this Facebook user to this Facebook user on this date.

[00:35:52] Speaker 02:
And here is the content.

[00:35:54] Speaker 02:
Can't say whether the content is true.

[00:35:55] Speaker 02:
Can't say who the user is.

[00:35:57] Speaker 02:
Can't say whether it's relevant or admissible.

[00:35:59] Speaker 02:
Just can say, these are our records.

[00:36:02] Speaker 02:
The 902.11 process has existed for many, many years in order to prevent the witness who can say that housekeeping thing, these are our records, from having to fly all over the country at every trial.

[00:36:15] Speaker 02:
So we can submit a 902.11 to a person knowledgeable who can say, yep, these are our records.

[00:36:20] Speaker 02:
And that is what happened here.

[00:36:21] Speaker 00:
The government obtained from Meta, Facebook, the 902.11 certificate.

[00:36:35] Speaker 02:
Fair enough, they are.

[00:36:37] Speaker 02:
Your Honor, I think I would say that for purely the first step of authentication of the records, what Facebook can say is these are Facebook records.

[00:36:45] Speaker 02:
We kept them in the course of our business, which is not methamphetamine distribution, but communications.

[00:36:53] Speaker 02:
That's correct, yes.

[00:36:54] Speaker 00:
Because we have these people communicating with each other, they are the ones talking, they're the ones doing, and that's why the hour makes it a little bit more worrisome.

[00:37:08] Speaker 02:
I understand the court's point.

[00:37:09] Speaker 02:
Perhaps I was not as articulate as I could have been.

[00:37:12] Speaker 02:
These are authentic Facebook

[00:37:16] Speaker 02:
communications sent on these dates between two users.

[00:37:20] Speaker 02:
The rest of it is up to the proponent.

[00:37:22] Speaker 02:
As the proponent of the evidence, once I've established that there's a reasonable probability that a jury could conclude these are what they are, it's my job to figure out how are they relevant and material under Rule 401.

[00:37:35] Speaker 02:
and not unduly prejudicial under Rule 403, that they're not hearsay, and that they are in some way moving the ball forward unrelevance.

[00:37:44] Speaker 02:
So with Facebook in particular, the way to do that often is the content of the messages and the subscriber information.

[00:37:51] Speaker 02:
And here, the subscriber information came back to Jonathan Allen, who went to Ferris High School in Spokane, whose birthday was February 9, 1991,

[00:38:01] Speaker 02:
There were communications where he referred to himself as Ghost, and other people referred to him as Ghost.

[00:38:06] Speaker 02:
There are references to the phone number that he used to communicate with Fisher.

[00:38:10] Speaker 02:
There are communications with his sister, Shavara, who testified at trial.

[00:38:14] Speaker 02:
The communications are about what they're going to do for Christmas.

[00:38:17] Speaker 02:
The user of the account said on February 6, my birthday's in three days, and John Allen's birthday is February 9.

[00:38:26] Speaker 02:
So the ability to tie up that the defendant sitting in the courtroom

[00:38:31] Speaker 02:
is the user of the Jonathan Allen Facebook.

[00:38:34] Speaker 02:
That job is the proponent's job.

[00:38:36] Speaker 02:
And we did that here, as I've just explained.

[00:38:39] Speaker 02:
Now those records have been made more relevant.

[00:38:44] Speaker 02:
And that's relevance under 401, relevant and material to the case.

[00:38:51] Speaker 02:
Then, quite rightly, the court has to do, whether asked by the defense or not, to do an analysis under Rule 403.

[00:38:57] Speaker 02:
Is the evidence unduly prejudicial?

[00:38:59] Speaker 02:
or outweighed by its probativeness.

[00:39:03] Speaker 02:
And here, the court did that amply by making us either redact or not use thousands and thousands and thousands of messages.

[00:39:12] Speaker 02:
There were 14,000 pages in this Facebook return.

[00:39:15] Speaker 02:
The evidence we actually put in front of the jury was something like maybe 12 or 15 actual exchanges, almost all of which were then subsequently redacted

[00:39:26] Speaker 02:
to eliminate information that the court thought was unduly prejudicial, acknowledging that I inadvertently made a mistake on one of the redactions, which the court cured with an instruction.

[00:39:36] Speaker 02:
So it's the proponent's job to establish that these records, whatever they are from Facebook, are relevant because the guy sending the messages and receiving the messages is the guy sitting at the defendant's table.

[00:39:48] Speaker 02:
And that we then do.

[00:39:49] Speaker 00:
And the guy has disputed his identity.

[00:39:53] Speaker 02:
Yes, obviously without having to take the stand, but yes, to the extent that the defense overall disputed his identity, a big part of my job was to prove up that these Facebook messages were relevant and material because they were his.

[00:40:08] Speaker 02:
the drug deal took place in the Facebook messages.

[00:40:11] Speaker 02:
The exhibit that showed the conspiracy was the exhibit between Brown and Allen setting up and completing the drug deal, which they then completed with Fisher in the car.

[00:40:23] Speaker 02:
So I'll return to that in a moment.

[00:40:25] Speaker 02:
So then, on a 403-404b challenge, the court then has to also say, is there anything about this that goes to propensity?

[00:40:33] Speaker 02:
Is the government trying to get this evidence in to show this is a bad guy, or he's done it before, he'll do it again?

[00:40:39] Speaker 02:
The court, in this case, did a very clear job of that by eliminating any references that could have been perceived to be anything other than evidence of the crime itself, the drug deal with Brown and Fisher,

[00:40:51] Speaker 02:
or identity, and the court gave the pedant jury specific instructions on that.

[00:40:57] Speaker 02:
You may consider for identity and to prove the crime, but not to show he's a bad guy, or the standard propensity instruction.

[00:41:04] Speaker 02:
So then, we've got a hearsay issue, which is, these are out-of-court statements being offered by the government to prove the truth of the drug deal, matter asserted outside of court.

[00:41:14] Speaker 02:
Now, because I'm the government, I'm the party opponent, so I may introduce under rule 801D2A the defendant's own statements.

[00:41:22] Speaker 02:
So everything that John Allen said in his Facebook messages come in as a party opponent statement when offered by the government, not when offered by the defense.

[00:41:32] Speaker 02:
To the extent that I needed to show what the communications meant, I'm able to get in Brown's responses to show the context of the hearsay statements.

[00:41:42] Speaker 02:
So in that way, we avoided the hearsay problem as well, which wasn't challenged.

[00:41:45] Speaker 02:
It was not John's hearsay.

[00:41:48] Speaker 02:
And so having worked through the authentication from the 902.11, the relevance and admissibility by the content of the messages themselves, and also Brown testifying, yeah, that's John Allen that I was communicating with.

[00:42:00] Speaker 02:
That's the guy.

[00:42:01] Speaker 02:
And that's the Facebook that we use.

[00:42:04] Speaker 02:
Having authenticated, made it relevant material, excluded, prejudicial, or propensity evidence, and worked around the hearsay problem,

[00:42:14] Speaker 02:
Then, and only then, can the jury weigh the testimony.

[00:42:18] Speaker 02:
It's for the jury to then weigh that testimony.

[00:42:21] Speaker 02:
And this is not a case, and this is why it would be helpful to publish.

[00:42:25] Speaker 02:
It is not permissible to just throw a 902.11 in and say, OK, that comes in for the jury.

[00:42:31] Speaker 02:
A proponent of this evidence has to walk through each of those steps, authentication, materiality, relevance, hearsay, and prejudicial and probative, in order for the jury to get it.

[00:42:41] Speaker 02:
And when the jury gets it,

[00:42:42] Speaker 02:
Then they can weigh it and how the jury weighs is up to them.

[00:42:46] Speaker 04:
So for that reason it would be helpful Okay council, I think I think we have your argument.

[00:42:50] Speaker 04:
Yeah, we've let you go over and you've been very helpful.

[00:42:53] Speaker 03:
Thank you Two minutes for rebuttal Just a couple points your honor with the authentication issue It's under 902 11 along with 803 6 the thing is is the

[00:43:12] Speaker 03:
The point of Facebook's business is advertising, and that's where they make their money off of.

[00:43:17] Speaker 03:
They don't, under 90211, for that self-authentication, it was not properly self-authenticated.

[00:43:24] Speaker 01:
So your position is these are not actually business records of Facebook?

[00:43:27] Speaker 01:
Is that your argument?

[00:43:28] Speaker 03:
That is part of it.

[00:43:30] Speaker 03:
The content is what I'm saying.

[00:43:32] Speaker 03:
The content.

[00:43:32] Speaker 01:
These are records that are kept in the normal course of the businesses activity.

[00:43:36] Speaker 01:
How can they not be business records?

[00:43:39] Speaker 01:
Even though they may be doing all this in order to generate revenue from advertising.

[00:43:44] Speaker 03:
They're not.

[00:43:45] Speaker 03:
They're not generating revenue from private messages on on Facebook.

[00:43:49] Speaker 03:
Not.

[00:43:50] Speaker 03:
not on a post or anything like that.

[00:43:52] Speaker 01:
What authority do you have to make this distinction because Mr. Herzog's outline of the applicability of the rules of evidence is the way I understand the law to work.

[00:44:03] Speaker 03:
It's from the Brown case in the Third Circuit, which was showing that these are not the records kept for the purpose of Facebook's business, whereas advertising would be.

[00:44:16] Speaker 03:
This is drug dealing between two individuals,

[00:44:19] Speaker 01:
This is not that's not a business of Facebook and the but you're you're confusing the proponents obligation or burden to establish the relevance of the contents to give the district court an opportunity to balance the prejudicial value versus the relevance and

[00:44:43] Speaker 01:
the authentication of the record which is step one that these are the records of a regularly conducted business activity

[00:44:52] Speaker 01:
uh... that were made at or about the time that uh... that the activity occurred when i think that's black letter evidence law but what i'm saying is the government can't get past step one on self-authentication they would need a witness for that which they had through the testimony of all these uh... well in fact that i guess that what the a t f agent uh... who was able to testify that

[00:45:13] Speaker 01:
You know, he got the screenshot that allowed him to finger Alan as the guy who was sitting in the car.

[00:45:20] Speaker 03:
Even with the screenshot, he did not fully know.

[00:45:24] Speaker 03:
I mean, it is my argument that he didn't fully know who that was.

[00:45:29] Speaker 01:
Yeah, but there's other evidence that Mr. Herzog outlined in response to Judge Smith's questions that established that.

[00:45:37] Speaker 03:
But he didn't have the agent did not have familiarity with the Facebook page is what I'm getting.

[00:45:42] Speaker 01:
But he doesn't have to in order to help the jury understand that the John Allen who owns this Facebook page is the John Allen who's seated next to you in the courtroom.

[00:45:55] Speaker 03:
You have the testimony of Ms.

[00:45:57] Speaker 03:
Shavara Ham, who testified that many different people use that Facebook page.

[00:46:02] Speaker 00:
Is your best argument the case you cited from the Third Circuit?

[00:46:07] Speaker 00:
Yes, Brown.

[00:46:07] Speaker 00:
That's your best argument?

[00:46:08] Speaker 00:
Yes, Your Honor.

[00:46:09] Speaker 00:
All right.

[00:46:09] Speaker 00:
We've got that case well in mind.

[00:46:11] Speaker 00:
Okay.

[00:46:12] Speaker 00:
Thank you, Your Honor.

[00:46:13] Speaker 04:
Thank you.

[00:46:14] Speaker 04:
Thank you to both counsel.

[00:46:15] Speaker 04:
A very important case and very much appreciate how helpful counsel's been in helping us understand the issues and the professional way in which it was argued.

[00:46:25] Speaker 04:
That case is now submitted and that concludes our arguments for the day.