[00:00:11] Speaker 04:
Good morning.

[00:00:13] Speaker 04:
We have two cases on calendar that are being submitted on the briefs.

[00:00:18] Speaker 04:
Those are 24-3171 Juan Kotok-Montarosa versus Pamela Bondi and 24-4820 United States of America versus Aaron Anthony Ordonez in accordance with the respective orders previously entered on the dockets of those two cases.

[00:00:38] Speaker 04:
Those two cases are hereby submitted for decision on the briefs.

[00:00:43] Speaker 04:
And we'll proceed with argument in the first case on calendar for argument this morning, which is 24-3099, United States of America versus Kendall Kevin Onagall.

[00:00:56] Speaker 04:
And we'll hear first from Mr. MacDonald.

[00:01:06] Speaker 03:
Good morning, Your Honors.

[00:01:07] Speaker 03:
May it please the Court, Randy McDonald.

[00:01:08] Speaker 03:
Can you get closer to the microphone?

[00:01:10] Speaker 03:
Yeah.

[00:01:11] Speaker 03:
Thank you.

[00:01:12] Speaker 03:
Randy McDonald on behalf of the defendant, Kevin Anaghal.

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I'd like to reserve three minutes for a rebuttal if I may.

[00:01:20] Speaker 03:
I'll watch my clock.

[00:01:22] Speaker 03:
There are three issues that Mr. Anaghal has raised here today.

[00:01:29] Speaker 03:
And unless this court would like to discuss one of them in particular first, I'd like to turn first to the juror issue relating to the 606B issue that was raised in my brief.

[00:01:43] Speaker 03:
So I think this is interesting in that there are plenty of general prescriptions about when testimony relating to jury deliberations are permissible.

[00:01:56] Speaker 03:
But what we have here, I think, is really an issue of first impression, which is, I think, two separate issues.

[00:02:04] Speaker 03:
First of all, whether a juror

[00:02:07] Speaker 03:
who deliberates in one jury and then is discharged before the verdict is entered is subject to the same prescriptions of 606B.

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And second, whether a juror deliberations that occur before the discharge of a juror

[00:02:25] Speaker 03:
of a juror and a new jury is constituted are affected by 606B.

[00:02:32] Speaker 03:
So far as I can tell, there are no cases in this circuit or any other circuit which have dealt with this specific issue.

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We know that from this court's decision in Lung that there are some general prescriptions that we understand from Rule 606B.

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It applies in any proceeding involving an inquiry into the validity of the verdict, which I think we concede that that is applicable here.

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But what I think is at issue is whether the testimony from the jurors involves jurors' internal processes or is occurring during deliberations under the rule.

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And so I think I'd like to take a step back and talk more specifically about the testimony that the defendant tried to elicit in this case or asked the district court to elicit.

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So this of course was an issue where we know that there were two juror notes.

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One said the jury is deadlocked 11 to one and another which made statements that ultimately led to the disqualification of juror five.

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We know that juror 14 wrote both of those notes.

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But what we do not know and what I think is relevant here is why juror 14 did not mention the misconduct beforehand prior to the note that he ultimately sent.

[00:04:06] Speaker 00:
Wouldn't that issue that you're talking about right now

[00:04:09] Speaker 00:
when, you know, let's just assume for a moment that there is further an evidentiary hearing on this topic.

[00:04:15] Speaker 00:
Wouldn't that necessarily require the juror to talk about or perhaps talk about the motive in reporting later which may get into the jury deliberation and the 11-1 split?

[00:04:34] Speaker 03:
As to juror 14 testimony, I agree that there is a potential for that juror's testimony to deviate into a discussion about that juror's motivations and internal processes as to the verdict itself.

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But I think there is also a possibility that the testimony about his motive for

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asking for trying to kick juror five off of the jury, I don't think that necessarily it would mean going into the jurors internal processes.

[00:05:09] Speaker 03:
I suppose it is possible that that could happen, but that testimony, I think- Are you contesting that juror number five was properly removed?

[00:05:20] Speaker 03:
I do not believe that my brief argues that juror number five was not properly removed, Your Honor.

[00:05:25] Speaker 04:
I think specifically- So why does it matter

[00:05:28] Speaker 04:
If juror 14 presented a note that properly led to the removal of a juror who the district court found violated the court's instructions, why would it matter what the motivation of that person was apart from the fact that it might reflect on the deliberative process, which is exactly what 606B bars?

[00:05:52] Speaker 03:
So this court has said in dire that

[00:05:57] Speaker 03:
a jury that is biased sort of per se requires a new trial and that a court has to inquire into the reason for or the existence of juror bias.

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Now I acknowledge that Dyer is a habeas case and does not involve 606B.

[00:06:18] Speaker 02:
But what evidence suggested that the juror was biased?

[00:06:21] Speaker 03:
Well, I think that is the question that we really needed to get into with the juror testimony.

[00:06:26] Speaker 02:
But there's no evidence.

[00:06:27] Speaker 02:
So how is the judge supposed to, like, are they supposed to surmise that this is happening?

[00:06:32] Speaker 03:
Well, I think that there was perhaps an inference that was raised in this case because of the quick succession of the notes from juror 14.

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First, there's an 11 to 1 split.

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Second, we need to get rid of juror number five.

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And I think that the additional evidence that would have been necessary to make that.

[00:06:48] Speaker 04:
Is that what the second note said, we have to get rid of juror number five?

[00:06:52] Speaker 03:
The second note suggested that juror number five had committed misconduct and that is the ultimate note that led to juror number five's removal.

[00:07:02] Speaker 04:
But you don't contest that the juror was properly removed for violating the court's instructions.

[00:07:09] Speaker 03:
I agree that the juror violated the court's instructions and there was a hearing as to whether juror number 14 and juror number five ought to be removed.

[00:07:19] Speaker 00:
I think your point is that

[00:07:22] Speaker 00:
the report came late, so there's also the additional inference about the timing of when the report was made in addition to the removal and then the change in the jury verdict.

[00:07:36] Speaker 00:
I guess what I'm struggling with is that at some point it's sort of a catch-22 for you because at some point, especially if you're conceding that your number five was properly removed, and I could maybe see a circumstance where the two are

[00:07:50] Speaker 00:
It's not mutually exclusive.

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You can have somebody remove properly, but also be able to make an argument that there was a biased jury.

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But in exploring that, I don't know how you don't get into the deliberations.

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You need that piece to be able to essentially show

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that there was an improper motive.

[00:08:13] Speaker 03:
So I guess to answer your first question, I agree that the procedure by which juror number five was removed was

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was appropriate in that conceivably juror number five did not follow the court's instructions.

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But I think the underlying question is whether the reason for the report that ultimately got juror number five off of the verdict was a result of juror bias.

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And I guess separate and apart from juror number 14's motivation, which

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So I guess taking a step back, Rule 606 only precludes juror testimony as to their motivation.

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External testimony or external evidence about jury motivation is not, I think, the subject of Rule 606.

[00:09:02] Speaker 03:
So I think that what we are talking about here is separate and apart from whether Juror 14's testimony would be admissible, is Juror Number 5's testimony about whether he was the holdout juror admissible?

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And I think that's important because coupled with the evidence that we have, it would lead to an inference that juror number 14 was biased.

[00:09:24] Speaker 04:
Would that not be barred by 606B, the statement by juror number five that he or she was the holdout?

[00:09:33] Speaker 03:
So I think there's two arguments there, Your Honor.

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First of all, juror number five was discharged from the jury and was not part of the ultimate jury that made the decision.

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And second of all,

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There were, in a sense here, two separate juries.

[00:09:49] Speaker 04:
So you're saying that if someone's excused from the jury then 606B doesn't apply and they can say anything they want about what happened in the jury's deliberations?

[00:09:58] Speaker 03:
No, I don't think that's true because they would not be able to speak to other jurors' motivations.

[00:10:04] Speaker 03:
And that's not, I think, what we would be asking juror number five to testify to.

[00:10:08] Speaker 03:
What we would be asking is, were you one of the holdout jurors before the verdict was reached, before you were discharged?

[00:10:15] Speaker 04:
I don't think that he could speak to anything that was... How is that not evidence of a juror's statement on

[00:10:22] Speaker 04:
the matters listed in 606B1.

[00:10:25] Speaker 03:
So I agree that it's subject to that particular that that particular juror is giving the testimony about his statements, but he was discharged from the jury and is no longer a part of that process.

[00:10:41] Speaker 04:
The same is true after the verdict is entered, they're all discharged and

[00:10:45] Speaker 04:
You know, the point is, the only reasonable reading of the rule is that it refers to statements made in the capacity as a juror during that capacity as a juror.

[00:10:56] Speaker 04:
So this notion that it doesn't apply to people who are ex-jurers, do you have any case authority that would support that proposition?

[00:11:03] Speaker 03:
I acknowledge that the case law on this particular issue is non-existent.

[00:11:08] Speaker 04:
That does not seem to be a reasonable reading of the text.

[00:11:11] Speaker 04:
But do you have other categories of evidence you can identify?

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that could have been available apart from extra statements that would escape 606B here.

[00:11:26] Speaker 03:
So I don't believe that on this record there's any additional evidence that could have been presented.

[00:11:33] Speaker 04:
But can you articulate what you were looking for that wouldn't fit within 606B, the target of what you were trying to get?

[00:11:41] Speaker 04:
because it seems that not only was there not any evidence that wouldn't be barred by 606, there wasn't anything in the

[00:11:48] Speaker 04:
target range that was outside 606B.

[00:11:50] Speaker 03:
So I acknowledge that on this record, I'm not sure what else other than the testimony of juror number five and juror 14 would be available.

[00:11:58] Speaker 02:
Counsel, can I ask you about another part of your appeal?

[00:12:01] Speaker 02:
You argue that the evidence with regards to the peoples should be admissible under 404.

[00:12:08] Speaker 02:
But why isn't that evidence relevant on count five and in terms of the specific intent of the individual?

[00:12:17] Speaker 02:
Why isn't it admissible under that analysis?

[00:12:21] Speaker 02:
And I'm sorry, Your Honor, count five.

[00:12:24] Speaker 02:
Count five having to do with the, I believe, involving the contact with the minor.

[00:12:30] Speaker 02:
So specifically, I think that's one of the basis of appeal.

[00:12:38] Speaker 02:
My question is, why doesn't it go to

[00:12:42] Speaker 02:
probativeness of his specific intent to receive sexual gratification.

[00:12:46] Speaker 02:
Why doesn't it go to that?

[00:12:47] Speaker 03:
So I think you're right that it probably does go to that, Your Honor, but... Then why is that wrong?

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So I think this is not a situation where the nature of the contact itself, I think, is also indicative.

[00:13:05] Speaker 03:
If the contact happened, if the statements of the victim here are true, I think that the nature of the contact itself

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necessarily implies, but I guess what I'm saying is the additional probative value of the peephole evidence is I would say extraordinarily negligible next to the statements of the victim at issue here.

[00:13:30] Speaker 00:
So let me ask you another question about this issue on the peepholes and the video recording evidence in particular.

[00:13:37] Speaker 00:
I'm troubled by the

[00:13:42] Speaker 00:
the fact that at first the defense counsel's objections were sustained, then on foundation grounds there was ongoing questioning.

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I can't really tell that the issue was resolved and yet the evidence came in.

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So let's just assume for a moment that I agreed with you that the people in the video recording evidence violated rule 404.

[00:14:03] Speaker 00:
The government in its brief makes an argument about harmless error, which I can't find anywhere what your response to that is.

[00:14:10] Speaker 00:
I'm curious to know how you would respond to the argument that that would be it's harmless.

[00:14:16] Speaker 03:
So, yes, and I think the government's argument about harmless error is effectively, you know, the allegations in the indictment were much worse than the allegations of the people evidence.

[00:14:29] Speaker 03:
And so what is the harm?

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And I think, first of all, it's the government's burden to prove that the error was harmless beyond a reasonable doubt.

[00:14:39] Speaker 04:
And I think just by pointing to other... That's for constitutional error.

[00:14:43] Speaker 04:
This would be evidentiary error under 404B.

[00:14:46] Speaker 04:
So that's just preponderance.

[00:14:48] Speaker 03:
Okay.

[00:14:48] Speaker 03:
So I guess I would say that, you know, it is probably always the case that in a case involving charges as serious as this, that whatever

[00:15:01] Speaker 03:
additional prior acts evidence is going to come in is necessarily going to be lesser than the charge defense.

[00:15:10] Speaker 03:
And so I guess if the government's only argument is that the charge defenses were worse, then it seems to me that any other evidence of any other crime could come in and the evidence would be harmless.

[00:15:24] Speaker 03:
So I see that I'm running out of time.

[00:15:25] Speaker 03:
I'd like to reserve the remainder of my time.

[00:15:27] Speaker 04:
I'll give you two minutes for rebuttal, so you ask a lot of questions.

[00:15:32] Speaker 04:
We'll hear now Ms.

[00:15:34] Speaker 04:
Kubota.

[00:15:45] Speaker 01:
Good morning, Your Honors, and may it please the court.

[00:15:47] Speaker 01:
I'm Vanessa Kubota, and I represent the United States.

[00:15:51] Speaker 01:
The jury in this case heard overwhelming admissible evidence that the defendant repeatedly raped a nine-year-old girl in his care, and this court should affirm the convictions.

[00:16:02] Speaker 01:
for at least four reasons and I'll briefly cover my outline and then go straight into the jury and the 404B issues.

[00:16:10] Speaker 01:
First of all, under any standard, Dr. Dutton's testimony was properly admitted as this court has held in many cases and more recently in cases involving both Dr. Dutton's expert testimony itself and the same topic and same scenarios such as Pacheco, James and Jones and even before that, many similar cases.

[00:16:29] Speaker 01:
As far as the Rule 413 evidence that was also properly admitted here and not overly prejudicial, going into the prior acts evidence of the peoples and the cell phone testimony, I just want to say first of all that the evidence certainly came in as Judge Mendoza was pointing out insofar as it went to the sexual intent that is part of an element in Count 5, but it also came in under the

[00:17:00] Speaker 01:
value of the general motive intent preparation.

[00:17:04] Speaker 04:
It was also inextricably intertwined, although I will say... Does the record indicate whether or not there was any recording of the victim?

[00:17:13] Speaker 04:
Because I saw a reference to the mother and to the sister, but I wasn't sure I knew the full contents of the entire record.

[00:17:23] Speaker 04:
Was there any evidence to indicate that the victim was captured on the recording?

[00:17:29] Speaker 01:
No, Your Honor, there was no evidence that the child victim was on the cell phone recording.

[00:17:34] Speaker 00:
How then can it go to the element in count five because the rest of what you described really just sounds like propensity.

[00:17:41] Speaker 01:
So, Your Honor, it goes to not only to motive and count five, but also to preparation.

[00:17:46] Speaker 01:
But the way that it meets the sort of motive is it shows the defendants

[00:17:52] Speaker 01:
sexual intent to sort of exert his governance over the space of the bathroom, which was the locus of the abuse in this case.

[00:17:58] Speaker 01:
The fact that the victim's sister testified only to having seen videos of herself and her mother in that

[00:18:08] Speaker 01:
in that cell phone doesn't preclude the overall sort of implication here that the defendant is zeroing in on a space invading privacy, exerting governance over a place that became one of the main loci of abuse here.

[00:18:25] Speaker 01:
Additionally, it also

[00:18:27] Speaker 02:
It doesn't go to a specific intent then.

[00:18:31] Speaker 02:
Exerting governance is what you're arguing now, which interesting phrasing, but you're saying that that's what happened here.

[00:18:37] Speaker 02:
Explain that to me.

[00:18:38] Speaker 02:
I guess I'm not seeing it now.

[00:18:40] Speaker 01:
Well, Your Honor, it certainly does go to the defendant's sexual intent toward this victim, but it also goes toward his intent to use the bathroom as a basis to exert his sexual gratification.

[00:18:53] Speaker 01:
And Your Honors, as far as the argument of harmlessness here, although we certainly do believe that the evidence properly came in, again, I will say Rule 404B is a rule of inclusion.

[00:19:05] Speaker 01:
And the only time it should be excluded is if its only function is to show propensity.

[00:19:13] Speaker 01:
Here, we have other bases for admission of that evidence.

[00:19:18] Speaker 01:
And so it certainly should come in.

[00:19:20] Speaker 01:
But even if the court were to find that the people's or the cell phone weren't properly admitted, it's harmless for two reasons.

[00:19:28] Speaker 01:
Not simply because that evidence was more benign than the charge defense, of course, but also because there was significant corroboration.

[00:19:36] Speaker 01:
This isn't a he said, she said case.

[00:19:38] Speaker 01:
This is a case where you have the child.

[00:19:40] Speaker 00:
Couldn't have flipped it.

[00:19:41] Speaker 00:
side of what you're arguing be true to, which is if the other charged allegations were so severe, then why does the government need to introduce and admit propensity evidence?

[00:19:54] Speaker 00:
I mean, that's kind of the whole point of 404.

[00:19:57] Speaker 01:
Well, Your Honor, even though certainly the government wins even on a harmlessness argument because of the other corroborative evidence, but the benefit of introducing that evidence, and remember, Your Honor, the necessity requirement

[00:20:11] Speaker 01:
doesn't necessarily mean that it has to be indispensable to the case.

[00:20:15] Speaker 01:
It just simply helps guide the jury in understanding all of the context, and this also goes to the government's inextricably intertwined argument as well, that this sort of built the context around the crime.

[00:20:27] Speaker 01:
The defendant didn't, as we expressed in our answering brief, the defendant didn't just

[00:20:32] Speaker 01:
begin by violently raping this child.

[00:20:35] Speaker 01:
It was a gradual process.

[00:20:36] Speaker 01:
This also represents escalation.

[00:20:39] Speaker 01:
And also, I will add that the significance of the peepholes going straight into the toilet, the toilet was also a location where the victim was repeatedly abused by the defendant.

[00:20:50] Speaker 01:
And also the fact that they were born about six inches through drywall to the defendant's bedroom, which was also another location.

[00:20:57] Speaker 04:
I don't really see how this is not

[00:21:00] Speaker 04:
404B evidence.

[00:21:02] Speaker 04:
I understand your arguments that it's within a 404B exclusion or it's harmless error, but it's not part of the same transaction as the actual charge conduct.

[00:21:12] Speaker 04:
So it doesn't seem to fall.

[00:21:14] Speaker 04:
It is other acts, which is what 404B covers.

[00:21:18] Speaker 01:
Exactly, Your Honor.

[00:21:19] Speaker 01:
I will add that this court in Beckman... Do you agree that it's not part of the transaction, and it has to be analyzed under four... I agree that it's not part of the transaction as to the child, but there's two bases for inextricably intertwined.

[00:21:32] Speaker 01:
It's part of the coherent theory, the other prong of inextricably intertwined.

[00:21:36] Speaker 01:
It does sort of give context.

[00:21:38] Speaker 01:
So there are two prongs under inextricably intertwined, and I do agree, Your Honor, that

[00:21:42] Speaker 01:
it more properly fits into the second prong of the analysis.

[00:21:46] Speaker 04:
But I will add that this court in Beckman has also held... I'm not sure I see how it fits under the second category either, because I think you can give the context for this whole story without ever telling that.

[00:21:58] Speaker 04:
I mean, I agree that it's probative, but then the analysis of whether it comes in has to be done under four... I don't see how you escape it just because you think it's a prelude.

[00:22:10] Speaker 01:
Certainly, Your Honor, and the government is perfectly comfortable arguing, and we believe the record supports a 404B admissibility basis.

[00:22:21] Speaker 01:
And so the inextricably intertwined theory was also just an alternative vehicle to admit the evidence, but I do agree with Your Honor that

[00:22:27] Speaker 01:
the 404B is a strong basis to admit this evidence.

[00:22:34] Speaker 01:
And just going quickly to the jury issue, I just want to say there's nothing remarkable about this case.

[00:22:41] Speaker 01:
First of all, there's a lot of speculation.

[00:22:43] Speaker 01:
And even if one were to draw the inference that Juror 14 had some sort of ignoble motivation to sort of like throw Juror 5 under the bus, maybe Juror 5 was the lone holdout, but it still doesn't matter.

[00:22:55] Speaker 01:
because Juror 14 was actually, far from manipulating the jury process, she was actually protecting it.

[00:23:01] Speaker 01:
She was following the admonitions, albeit late, but she was following them.

[00:23:05] Speaker 04:
Why was Juror 14 removed for revealing the count?

[00:23:08] Speaker 01:
Well, Your Honors, there's a gradation.

[00:23:11] Speaker 04:
That was a direct violation of the court's instructions.

[00:23:13] Speaker 01:
Yes, Your Honor, it was a violation and we don't know what compelled her to reveal the numerical standing.

[00:23:21] Speaker 01:
The reason why we don't want jurors revealing the numerical standing is insofar as it could be to the appearance of coercion or lead to some sort of, if the court were to have to have given an Allen charge, that would have been dangerous insofar as it could have led to coercion and reversibility.

[00:23:35] Speaker 01:
Luckily, we didn't have that happen here.

[00:23:37] Speaker 01:
But as far as the juror 14's miscon, well, excuse me, not misconduct, as far as juror 14's revealing inadvertently the juror number, that was certainly, and the court recognized that she did disobey that instruction, but it doesn't rise to the level of misconduct.

[00:23:53] Speaker 01:
Going back to what this court has found.

[00:23:56] Speaker 04:
Can we consider, does 606B prevent us from considering in an inquiry into the validity of the verdict

[00:24:06] Speaker 04:
the fact that it was 11 to 1?

[00:24:10] Speaker 01:
Well, Your Honor, it's sort of one of those things as they say colloquially, the court can't unsee the numerical standing once it's been revealed.

[00:24:18] Speaker 04:
We do that all the time.

[00:24:20] Speaker 04:
We have evidence that we then rule cannot properly be admitted.

[00:24:25] Speaker 04:
We've seen the evidence, we know it, and then we set it aside and we're able to

[00:24:29] Speaker 04:
then decide without regard to that.

[00:24:31] Speaker 04:
Does 606B instruct us to do that, even with respect to the 11 to 1 comment?

[00:24:37] Speaker 01:
No, Your Honor.

[00:24:38] Speaker 01:
Well, 606B absolutely precludes any inquiry.

[00:24:42] Speaker 04:
That's not a statement about the jury's deliberations and processes?

[00:24:46] Speaker 01:
Certainly, it's precluded by 606B.

[00:24:48] Speaker 01:
I agree.

[00:24:48] Speaker 04:
OK, I thought you said it wasn't precluded by 606B.

[00:24:51] Speaker 01:
No, Your Honor.

[00:24:51] Speaker 01:
What I mean to say is that it would have been improper for the court

[00:24:57] Speaker 01:
allow the defense's request to go through to further pry into the nature or the identity of Juror 5.

[00:25:05] Speaker 01:
or the knowledge about the identity of Juror 5 or the motivation for reporting Juror 5.

[00:25:10] Speaker 01:
Juror 5 was removed for his own misconduct.

[00:25:13] Speaker 01:
I know Professor McDonald cited a case, a habeas case dire.

[00:25:21] Speaker 01:
Since we're talking about habeas cases, Perez versus Marshall is a case that if we were to take this scenario to its extreme,

[00:25:29] Speaker 01:
That's 119 F3D 1422.

[00:25:33] Speaker 01:
There was a soldier who was a holdout for acquittal.

[00:25:37] Speaker 01:
And in that case, the court held that even though the court knew the nature and the identity of this one juror, that was the one lone holdout, that juror was properly removed from the jury for cause because of her severe emotional instability.

[00:25:52] Speaker 01:
And so even if we were to take it to its logical extreme, what remedy was the defense really seeking?

[00:25:58] Speaker 01:
Defense wanted to know that Juror 5 was the lone holdout.

[00:26:01] Speaker 01:
So then the defense could argue that Juror 5, that the report by Juror 14 may Juror 5 be excused.

[00:26:09] Speaker 01:
But again, that was a triggering factor.

[00:26:11] Speaker 01:
That wasn't the cause.

[00:26:12] Speaker 01:
The court actually engaged in a sort of interview process with both jurors.

[00:26:17] Speaker 01:
Both counsel were present.

[00:26:19] Speaker 01:
They also had the opportunity to question both jurors.

[00:26:22] Speaker 01:
And Juror 5 admitted not only to speaking with the defendant's family,

[00:26:28] Speaker 01:
But then it sort of came out through the process of questioning that he had spoken to not one.

[00:26:32] Speaker 02:
Counsel, you've been talking for about five, six minutes after Judge Collins asked your question about why was it proper or improper as to not excusing Juror 14 was his question.

[00:26:44] Speaker 01:
Oh, I'm so sorry.

[00:26:45] Speaker 01:
Thank you, Your Honor.

[00:26:46] Speaker 01:
So it was proper not to excuse Juror 14.

[00:26:51] Speaker 01:
The court has

[00:26:52] Speaker 01:
extremely high discretion in determining which jurors or when to excuse a juror for a cause and when it is appropriate.

[00:27:01] Speaker 01:
And in this case, the court properly questioned Juror 14 and ultimately determined that because she did report Juror 5 for misconduct in accordance with repeated admonitions, that the only sort of her failure was simply that she didn't report it immediately, but she did report it.

[00:27:20] Speaker 01:
And in fact, I would argue that the fact that Juror 14 reported Juror 5's misconduct goes to credibility and goes to the sort of the sanctity of Juror 14's ability to deliberate without bias.

[00:27:37] Speaker 01:
And again, we have to go back to the question of

[00:27:40] Speaker 01:
What do we really know on this record?

[00:27:42] Speaker 01:
And what should we know?

[00:27:44] Speaker 01:
And a lot of this is speculation.

[00:27:46] Speaker 01:
This court in the unpublished decision of Cariaga, which cites Dunn and Powell, said that it's improper to think about reversing a verdict for the sake of speculation, even when you have overtly contradictions in the verdict form.

[00:28:01] Speaker 01:
And so here we don't have anything like that.

[00:28:03] Speaker 01:
And the court properly declined defendants' invitation

[00:28:08] Speaker 01:
to pry into the mental state of juror 14.

[00:28:13] Speaker 01:
So we ask that you affirm the convictions and sentence, and I welcome the court's questions, or I'm happy to cede the remainder of my time.

[00:28:21] Speaker 04:
All right, thank you, counsel.

[00:28:23] Speaker 04:
Thank you.

[00:28:23] Speaker 04:
We'll hear rebuttal now.

[00:28:30] Speaker 03:
So I think I want to address a couple of things about the 404B analysis that was just discussed.

[00:28:39] Speaker 03:
I think that I infer from the court's questioning that that is sort of where we are concerning the admissibility of the people in the video testimony.

[00:28:49] Speaker 03:
I think it is absolutely relevant that the videos do not cover the actual charge conduct against the victim.

[00:28:56] Speaker 02:
Don't you run into the problem that we were just talking about, the harmless error problem?

[00:29:01] Speaker 02:
You run into that problem.

[00:29:02] Speaker 03:
Yeah, I concede that there is

[00:29:07] Speaker 03:
So I think I would just fall back on the argument that I previously made, which was if every time we're going to say, well, the charge conduct was worse than the evidence that was ultimately brought in, then I think that gives carte blanche for the government to introduce whatever prior act testimony that they want to and just later on say, oh, well, this wasn't harmless.

[00:29:29] Speaker 03:
I think that

[00:29:30] Speaker 03:
necessarily trying to insinuate that the conduct was part of a repeated pattern where in fact the only evidence of that pattern are these peepholes that may or may not have been drilled by the defendant and which he may or may not have used for the victim.

[00:29:47] Speaker 03:
I think that necessarily is

[00:29:51] Speaker 03:
you know, not harmless.

[00:29:52] Speaker 03:
I think what you're doing is you're insinuating that there's a repeated practice where, Judge Collins, I think you hit it right on the head, this is not, this doesn't seem to be part of the same conduct.

[00:30:05] Speaker 03:
So I think necessarily it is propensity evidence and the rule requires that propensity evidence be kept out.

[00:30:12] Speaker 03:
unless it's for an admissible purpose.

[00:30:15] Speaker 03:
And so I think that getting bogged down in the harmless nature of that sort of gives the government free rein to introduce whatever evidence that they want.

[00:30:25] Speaker 03:
If there are no other questions.

[00:30:28] Speaker 04:
All right.

[00:30:29] Speaker 03:
Thank you.

[00:30:30] Speaker 04:
The case just argued will be submitted.