[00:00:02] Speaker 03: All right, back on the record for arguments this morning. [00:00:04] Speaker 03: We have one final case for argument. [00:00:07] Speaker 03: That is United States versus Wilson. [00:00:09] Speaker 03: Mr. Mason, whenever you want to proceed. [00:00:23] Speaker 01: Thank you. [00:00:24] Speaker 01: Good morning, Your Honors. [00:00:25] Speaker 01: May it please the Court. [00:00:26] Speaker 01: Caleb Mason representing Declan Wilson, who is the defendant below and the appellant here. [00:00:33] Speaker 01: I'd like to reserve three minutes for rebuttal. [00:00:36] Speaker 01: Sure. [00:00:36] Speaker 01: If I could. [00:00:39] Speaker 01: This is a criminal case. [00:00:40] Speaker 01: Declan Wilson was denied a fair trial. [00:00:44] Speaker 01: I want to go through four areas, and I want to focus on the first one, which is the legal standard that the district court applied to the evaluation of third-party culpability evidence. [00:00:59] Speaker 01: What we called in the brief SODDI evidence, somebody else did it, is the heart of this. [00:01:07] Speaker 01: We developed, through investigation of this case, a large amount of evidence of third-party culpability. [00:01:16] Speaker 01: This is a case in which a teenager died of a fentanyl overdose, about the most tragic thing that can happen in life. [00:01:25] Speaker 01: And the issue was, where did he get the pills that killed him? [00:01:30] Speaker 01: He had a lot of fentanyl in his blood when he died, about 10 times. [00:01:37] Speaker 01: potentially fatal dose. [00:01:39] Speaker 01: The evidence showed that he had been seeking and receiving drugs, specifically pills, from multiple sources, that he had been communicating with multiple sources of supply. [00:01:51] Speaker 01: My client was one of those, and there was no dispute in the evidence that my client [00:01:56] Speaker 01: had given him some pills because my client and the decedent had a long text exchange that went on for hours about how to properly use the pills. [00:02:07] Speaker 01: Did you chew them or just swallow them? [00:02:09] Speaker 01: The decedent repeatedly told my client over a period of about four hours that his pills were weak and did not work. [00:02:15] Speaker 01: During that same period, the decedent [00:02:18] Speaker 01: There's also texting on Snapchat with a man named Jose Arambula. [00:02:22] Speaker 01: Jose Arambula is the third party culpability target here in this case that we wanted to put on evidence about, and the district court let us put on a few pieces of evidence. [00:02:34] Speaker 02: Well, the district court let you put on more than a few pieces of evidence, right? [00:02:38] Speaker 02: I mean, I'm looking, for example, [00:02:40] Speaker 02: at ER 1517, Agent Thomas' testimony where you asked him, did he, meaning Arambula, also distribute, you testified earlier that counterfeit M30 pills are the most common form of fentanyl pills. [00:02:58] Speaker 02: Yes, they are. [00:02:59] Speaker 02: Is that what Jose Arambula sold? [00:03:02] Speaker 02: Yes, it was. [00:03:03] Speaker 02: So you got in the text messages but you also got in, [00:03:09] Speaker 02: that he was the subject of this fentanyl indictment and he was selling counterfeit pills with fentanyl. [00:03:16] Speaker 01: Yes, your honor. [00:03:17] Speaker 01: So on pages 24 and 25 of our opening brief, we put in bullet points about what was allowed and what was excluded. [00:03:26] Speaker 01: There was far more excluded than was allowed. [00:03:29] Speaker 01: And turning specifically to the testimony to which you allude, Judge Meddick, from Agent Thomas. [00:03:36] Speaker 01: Agent Thomas was the lead investigating officer. [00:03:39] Speaker 01: He was the DEA agent. [00:03:45] Speaker 01: prohibited from introducing the fact that Agent Thomas had arrested Jose Arambula not just for selling those pills, but for having a thousand of them in his trunk. [00:03:55] Speaker 01: The jury never knew that. [00:03:56] Speaker 01: And that Agent Thomas, when he arrested Arambula... [00:04:01] Speaker 01: That was in September of 2021, so it was a year and three months. [00:04:08] Speaker 01: 15 months? [00:04:08] Speaker 02: 15 months. [00:04:09] Speaker 02: So he had 1,000 pills 15 months later. [00:04:11] Speaker 01: He did, but then when he was asked about what he did for a living, he told Agent Thomas in that interview that he had been professionally selling these fentanyl pills for years, for at least three years. [00:04:21] Speaker 01: So in that interview, [00:04:23] Speaker 01: He described a period of time that included the transaction at issue in this case, the night when Nathan Young died. [00:04:32] Speaker 01: that Arambula was texting with him on Snapchat. [00:04:35] Speaker 01: And he told Agent Thomas that during this entire period, he had been a professional fentanyl dealer, that these were the pills that he sold, that he communicated with his clients on Snapchat, that he was scared because several of his clients had died. [00:04:47] Speaker 01: I'm sorry. [00:04:48] Speaker 01: No, no. [00:04:49] Speaker 00: I was just going to ask, were those the pills that match the photos? [00:04:53] Speaker 00: Yes. [00:04:54] Speaker 00: OK. [00:04:54] Speaker 00: Identical. [00:04:55] Speaker 01: Light blue in color, and they're labeled M30. [00:04:57] Speaker 01: And they look sort of like Oxycontin, but they're actually fentanyl. [00:05:01] Speaker 01: All of that, what I just described, Your Honor, everything that I just said to you, all of that was excluded. [00:05:07] Speaker 02: So did you actually offer the statement, the transcript of Arambula? [00:05:13] Speaker 01: Yes. [00:05:14] Speaker 02: You offered it as a statement against penal interest? [00:05:18] Speaker 01: We offered the video and the transcript of the video, yes. [00:05:22] Speaker 01: And I attempted to elicit it through Agent Thomas. [00:05:24] Speaker 01: He was in the room. [00:05:25] Speaker 01: I also subpoenaed Arambula. [00:05:26] Speaker 01: I tried to rid him over from state custody. [00:05:30] Speaker 01: All of this was denied. [00:05:31] Speaker 01: The jury was never heard about any of that. [00:05:35] Speaker 01: The jury also never heard about another drug transaction that Jose Arambula did that very same summer. [00:05:41] Speaker 01: of 2020, August of 2020, now we're within three months when Jose Arambula sold drugs to a young man, another teenager in the South Bay, exactly the same modus operandi, met him on Snapchat, delivered the drugs to him, and then the young man died of an overdose. [00:05:58] Speaker 02: Is it your position that when Arambula, if I'm remembering this correctly in the interview, said he had a couple of friends who died, is that one of them? [00:06:07] Speaker 01: Well, I believe that it was, but Agent Thomas never asked him, and I was not permitted to ask him, and I was not permitted to ask Agent Thomas. [00:06:14] Speaker 02: If, for example, the transcript had been admitted, was there evidence that would have let you argue that? [00:06:20] Speaker 01: There was, Your Honor. [00:06:21] Speaker 01: So what I did, and again, this was an investigation that the defense did, I did personally when I took over the case, because the DEA had not done it. [00:06:30] Speaker 01: I got Jose Arambula's Snapchat client list. [00:06:35] Speaker 01: This was obtained, the government finally, in 2022, finally did a subpoena for Arambula's Snapchat contact list. [00:06:46] Speaker 01: I took that contact list and went to Snapchat. [00:06:48] Speaker 01: I subpoenaed the information for everybody, all the information Snapchat had about everybody in Jose Arambula's client list. [00:06:54] Speaker 01: And then I cross-checked that against death records for Los Angeles and Orange counties to see if there were individuals with the same names who had died of drug overdoses. [00:07:05] Speaker 01: And I found 50 of them, 50 people who had died of drug overdoses who had the same names as people in Jose Arambula's contact list during the period of time it issued. [00:07:15] Speaker 01: Again, all of that was excluded. [00:07:17] Speaker 01: The jury never heard any of that. [00:07:19] Speaker 01: And the government in this discussion, this series of discussions about this evidence, acted as Jose Arambula's defense attorney and argued, as they do on appeal, well, there's reasonable doubt as to whether or not all of those individuals died of drugs that they bought from Arambula. [00:07:39] Speaker 01: Maybe some of them bought them from somewhere else. [00:07:41] Speaker 01: Maybe some of them were name matches. [00:07:42] Speaker 01: So maybe they're not all 50 actually died of drug overdoses. [00:07:46] Speaker 01: We just don't know. [00:07:47] Speaker 01: There's uncertainty. [00:07:48] Speaker 01: I submit to the court, and this is really the gravamen of this appeal, that gets it backwards. [00:07:54] Speaker 01: I'm not a prosecutor. [00:07:55] Speaker 01: I haven't been a prosecutor for a long time. [00:07:57] Speaker 01: This is reverse 404B. [00:08:01] Speaker 01: My job in this case was to create reasonable doubt. [00:08:05] Speaker 01: And the defense is entitled to create reasonable doubt by showing that there is a reasonable likelihood that somebody else committed the crime. [00:08:13] Speaker 01: And the clearest place where this court has stated that standard is in the Urias-Espinoza case, which we discuss at length in our brief. [00:08:26] Speaker 01: The standard is relevance. [00:08:28] Speaker 01: The standard is, does this evidence of third party culpability make it more likely than not [00:08:36] Speaker 01: That's it. [00:08:36] Speaker 01: More likely that somebody else committed this crime. [00:08:39] Speaker 01: And if so, that is a legitimate avenue toward reasonable doubt. [00:08:43] Speaker 01: The Espinoza court also said explicitly and repeatedly that it is error for the district court to reject third-party culpability evidence on the grounds that the district court deems it to be speculative. [00:08:55] Speaker 01: Indeed, the court even used the term fantastical. [00:08:58] Speaker 01: It does not matter. [00:08:59] Speaker 01: If the district court thinks that evidence is speculative or fantastical or unlikely, that is not the standard. [00:09:05] Speaker 01: The standard is relevance. [00:09:06] Speaker 01: And if we apply 404B here, the same way that it would be applied, were I prosecuting the case of United States versus Jose Arambula? [00:09:15] Speaker 01: We would look for motive. [00:09:16] Speaker 01: We would look for intent. [00:09:17] Speaker 01: We'd look for opportunity. [00:09:18] Speaker 01: We'd look for means. [00:09:19] Speaker 01: We'd look for absence of mistake. [00:09:21] Speaker 02: But even if it's relevant, the district court still could do a 403-404 balancing, right? [00:09:27] Speaker 01: Well, you can always do a 403 balancing. [00:09:30] Speaker 01: And the question is, what happened in this case? [00:09:32] Speaker 01: What happened in this case was the district court applied a legal standard. [00:09:35] Speaker 01: And we even went through, in the beginning of the reply brief, it's probably the best place where we aggregated all of these, because the government argued, well, he wasn't really applying the wrong standard. [00:09:49] Speaker 01: The district court absolutely was. [00:09:51] Speaker 01: The district court applied a standard that there had to be a direct connection. [00:09:54] Speaker 01: And he used the term connection a lot. [00:09:56] Speaker 01: He said, you have to show me Jose Arambula making that drug deal that night, and you have to do it through evidence of that drug deal. [00:10:06] Speaker 01: I'll let that come in. [00:10:08] Speaker 01: So I will let in the text messages between Jose Arambula and Nathan Young that night. [00:10:13] Speaker 01: I will not allow any evidence of anything else that Arambula did. [00:10:18] Speaker 01: You can have the fact because the government stipulated that Jose Arambula is a drug dealer who's been indicted. [00:10:23] Speaker 01: Other than that, no. [00:10:25] Speaker 01: So I was precluded from putting in anything about Jose Arambula's other actions. [00:10:31] Speaker 01: And I was also precluded from impeaching the government's investigation and the government's investigator by showing that they had a personal relationship. [00:10:40] Speaker 01: The lead DEA agent, Bob Thomas, signed Arambula up to be a cooperator. [00:10:47] Speaker 01: On that day when he arrested him with a thousand fentanyl pills, he brought him into a room, this is all in video, that I proffered as evidence in an attempt to introduce. [00:10:55] Speaker 01: Agent Thomas brought Arambula into a room after arresting him with a thousand fentanyl pills, after Arambula told him that he'd been a professional fentanyl dealer selling pills to people on Snapchat for years and that several people he thought had died because of his activities and that was scaring him. [00:11:13] Speaker 01: What did Agent Thomas do? [00:11:15] Speaker 01: Let him go. [00:11:16] Speaker 01: Handed him back his phone, walked him out the door and said, go on, do what you need to do, just don't get in trouble and call me. [00:11:24] Speaker 01: Agent Thomas signed him up to be a cooperator and walked him out the door. [00:11:29] Speaker 01: And the jury never knew that. [00:11:31] Speaker 01: This happened in September of 2021. [00:11:33] Speaker 01: While the Wilson investigation was ongoing, Agent Thomas spent another year and a half on the investigation of the Nathan Young death. [00:11:45] Speaker 01: focusing solely on Declan Wilson and not looking at a Jose Arambula at all until I got on the case and started banging the gavel. [00:11:52] Speaker 01: I don't have a gavel. [00:11:53] Speaker 01: I banged my fist. [00:11:55] Speaker 01: And urged the government to do so. [00:11:57] Speaker 01: Agent Thomas looked the other way consistently. [00:12:02] Speaker 01: And I was allowed to say that to the jury in closing. [00:12:05] Speaker 01: Oh, Agent Thomas never investigated Arambula. [00:12:07] Speaker 01: What I was not allowed to do was say why. [00:12:08] Speaker 01: Because he had a personal relationship with him and he'd signed him up to be a cooperator. [00:12:14] Speaker 01: That is something that a reasonable jury could have used when considering Agent Thomas' testimony, specifically when Agent Thomas testified that he thought Jose Arambula was just giving us, he put it, friendly advice to Nathan Young when, at Excerpts of Record 1057, Jose Arambula texted to Nathan Young, just take half of a half because they are strong. [00:12:39] Speaker 01: That's usage advice. [00:12:42] Speaker 01: We even brought in an expert. [00:12:45] Speaker 01: To testify, the drug dealers don't give general friendly usage advice to people they've never met. [00:12:50] Speaker 01: They give usage advice about drugs that they themselves have sold. [00:12:54] Speaker 01: Our expert was a 25-year veteran LAPD detective who spent eight years doing undercover drug transactions. [00:13:01] Speaker 01: It was Carla Zuniga. [00:13:03] Speaker 02: When was her last work in narcotics before the testimony? [00:13:07] Speaker 01: Well, it was 15 years earlier, and it was before social media and before fentanyl, and that's what the district court used as a basis for excluding her. [00:13:14] Speaker 01: But she also testified, and we had voir dire. [00:13:17] Speaker 01: We brought her in and had questions and answers from both sides in the court, and she testified the drug-dealing lingo, practices, behaviors, [00:13:25] Speaker 01: They don't fundamentally change simply because of the technology being used whether it's you know snapchat today or pagers and You know phone calls when she was doing undercover work and based on what the drug was Yeah, so if I could just ask a quick question, and this is kind of out of left field but the indictment in this case [00:13:47] Speaker 03: It's at it. [00:13:48] Speaker 03: I don't know if you have a handy because it's not hasn't really come up in the briefing, but said er 1026 so it charges distribution then resulting in death Was there a special verdict form in this case or was it just a general verdict s for the resulting in death? [00:14:04] Speaker 03: I? [00:14:04] Speaker 03: Don't know I'm just I'm curious [00:14:07] Speaker 01: That's a good question and I wish I could simply quote you the answer. [00:14:11] Speaker 03: It's definitely in the record as to whether the Here's why I'm asking yeah, so let's presume for a second that I'm just speaking for myself that I think there is a real problem with what happened here with with the third party defense in your favor I Think the evidence that your client was dealing fentanyl is overwhelming whether the fentanyl resulted in death that's a whole nother story and [00:14:37] Speaker 03: Was there any verdict by the jury to say he's a fentanyl dealer and then separately that it resulted in death or was it just a general verdict? [00:14:47] Speaker 03: Because again, what I'm trying to figure out here is that how much do you win in this case? [00:14:52] Speaker 03: If you're right on third-party culpability, is this a complete retrial or is this something different than that? [00:15:00] Speaker 01: Your Honor, I don't want to make a representation about what the verdict form says, but I will be able to sit down and I'll look before I stand up for rebuttal and see what it said. [00:15:08] Speaker 01: Here's my answer to that. [00:15:09] Speaker 03: Yeah. [00:15:09] Speaker 01: There was no evidence that Declan Wilson was a fentanyl dealer. [00:15:13] Speaker 01: There was overwhelming evidence, I agree with the court on that, I'm not going to contest this, that Declan Wilson gave Nathan Young pills that night. [00:15:21] Speaker 01: There is no evidence that those pills were fentanyl. [00:15:24] Speaker 01: And what is the evidence that we would look at? [00:15:26] Speaker 01: The first thing would be toxicology. [00:15:28] Speaker 01: Nathan Young died of a fentanyl overdose. [00:15:30] Speaker 01: But it was six hours after he took Nathan Young's pills. [00:15:32] Speaker 03: So your point is everything still ties together, that you can't split is what you're saying? [00:15:37] Speaker 01: That's absolutely right. [00:15:38] Speaker 01: That was my question. [00:15:38] Speaker 01: Yeah. [00:15:39] Speaker 01: I think the evidence here is that Declan Wilson gave Nathan Young pills, but those pills did not contain fentanyl. [00:15:45] Speaker 01: I mean, the strongest evidence for that is what Nathan Young himself said. [00:15:48] Speaker 01: Your pills don't work. [00:15:49] Speaker 01: Your pills are weak. [00:15:50] Speaker 01: And he said that for hours. [00:15:52] Speaker 01: When if you take a fatal fentanyl overdose of 10 times the lethal amount, you're going to be unconscious within minutes. [00:16:00] Speaker 01: There's also no history of Declan Wilson dealing fentanyl at all. [00:16:04] Speaker 01: Contrast that with Jose Arambula, who was arrested with 1,000 fentanyl pills in his trunk and was a professional fentanyl dealer who knew that he was selling fentanyl. [00:16:13] Speaker 01: The jury never heard any of that. [00:16:16] Speaker 01: So I think to the court's question, [00:16:20] Speaker 01: If Declan Wilson gave pills to Nathan Young, but those pills did not have fentanyl in them and did not cause Nathan Young's death, Declan Wilson is simply innocent of these charges. [00:16:30] Speaker 01: I should have premised my thing that the evidence is overwhelming, he gave him something. [00:16:35] Speaker 01: Yeah. [00:16:35] Speaker 01: Okay, fair enough. [00:16:36] Speaker 01: Yes, something. [00:16:38] Speaker 01: If I could, Your Honor, for 30 seconds, I just want to mention to the court that there are other issues aside from the third party culpability. [00:16:45] Speaker 01: There's also the exclusion of two witnesses. [00:16:48] Speaker 01: I had two witnesses who took the same pills. [00:16:50] Speaker 01: They were in the same car, they took the same pills, they did not die. [00:16:54] Speaker 01: I had them live, ready to testify in court, and they were both excluded. [00:16:58] Speaker 01: They were excluded on the grounds that, after the government intervened and asked the court to appoint counsel and warn them of their Fifth Amendment rights, both of these willing witnesses then pled the fifth. [00:17:11] Speaker 01: They pled the fifth even though there was no indication that there was any reasonable likelihood that they would be charged. [00:17:18] Speaker 01: In the case of Matt Hay, he was not charged with anything. [00:17:22] Speaker 01: And the government's suggestion that he might be charged was based on the fact that if he admitted taking a pill, he would be admitting to possessing narcotics. [00:17:31] Speaker 01: I don't think there's a reasonable likelihood that the US Attorney's Office is going to prosecute anybody for possession of drugs when they admit to taking one pill years earlier. [00:17:40] Speaker 01: And there is no pill put on for evidence. [00:17:43] Speaker 01: Secondly, with Becca Groundfield, [00:17:48] Speaker 01: She came in, and she was prepared to testify. [00:17:51] Speaker 01: She took the same pills. [00:17:52] Speaker 01: She didn't die. [00:17:53] Speaker 01: The government then moved to appoint counsel for her, and she thereupon took the fifth. [00:18:00] Speaker 01: Becca had actually executed a declaration. [00:18:03] Speaker 01: So after the court accepted her Fifth Amendment plea and deemed her unavailable, I then moved to admit her declaration. [00:18:12] Speaker 01: as a statement against penal interest, which you would think it must be if it was the basis for a Fifth Amendment invocation that the court accepted. [00:18:20] Speaker 01: At this point, the court reversed course and said, well, no, it's not actually against penal interest. [00:18:26] Speaker 01: So you cannot introduce it, even though she's an unavailable witness. [00:18:30] Speaker 01: I mean, it has to be one or the other, Your Honor. [00:18:32] Speaker 01: Either it was inculpatory, and so her Fifth Amendment privilege was correctly invoked, in which case I should have been able to use her declaration. [00:18:41] Speaker 01: The same thing with Matt Hay. [00:18:43] Speaker 01: He came in. [00:18:45] Speaker 02: Yeah. [00:18:45] Speaker 02: I mean, so you're saying that if the district court rejected on the grounds the district court did reject the declaration, then the district court should have ordered her under penalty of contempt to testify and not let her assert a Fifth Amendment privilege? [00:19:05] Speaker 01: Well, she was a willing witness until she was threatened with prosecution. [00:19:09] Speaker 01: But she did take the fifth. [00:19:10] Speaker 01: She did, yes. [00:19:12] Speaker 01: So the answer to the court's question is yes. [00:19:14] Speaker 01: I mean, there are two choices here. [00:19:16] Speaker 01: Either what she was going to say was inculpatory to the degree that she should be permitted to invoke, or it was not. [00:19:22] Speaker 02: And if it was not inculpatory to that degree, then she should have been ordered... But there's more to admitting a declaration against penal interest than that it's simply inculpatory. [00:19:31] Speaker 01: There is a second element that there has to be corroboration. [00:19:33] Speaker 01: Here there was multiple levels of corroboration. [00:19:36] Speaker 01: There was another live witness, Matt Hay. [00:19:38] Speaker 01: There was Declan Wilson's initial statement that there were multiple people in the car. [00:19:41] Speaker 01: There was Joshua Young's statement. [00:19:43] Speaker 02: Don't you also have to show that the person at the time they made the statement were aware of its inculpatory possibilities? [00:19:53] Speaker 02: Yes. [00:19:54] Speaker 02: And when she's testifying in court for the Fifth Amendment, it's what's going on then, not when she executed the statement, right? [00:20:04] Speaker 01: She executed the declaration about a week or two before she came to court. [00:20:10] Speaker 02: And she was represented by counsel then? [00:20:13] Speaker 01: No. [00:20:16] Speaker 01: But she was aware that there was a trial going on, and she volunteered, and she had her father with her to come to court. [00:20:22] Speaker 01: So she was a willing witness. [00:20:25] Speaker 01: OK, my time has expired. [00:20:27] Speaker 03: I will sit down now unless my colleagues have any other questions. [00:20:31] Speaker 03: I'll give you the three minutes that you asked for. [00:20:32] Speaker 03: OK, thank you. [00:20:58] Speaker 00: Good morning and may it please the court Danny Weiner on behalf of the United States Defendant Wilson was permitted to meaningfully present a third-party defense at trial He did so and the jury rejected that argument Council do you think the district court correctly summarized the third the doctrine of third-party? [00:21:22] Speaker 03: Liability in terms of evidence that can be admitted [00:21:25] Speaker 00: So if you look at the record, I don't think that there is a specific quote where the district court summarized or quoted what the exact law is here, but the entire record supports that the district court did exactly. [00:21:40] Speaker 00: with the Supreme Court in Holmes, with this court in Armstrong, and even in Espinosa says to do, which is to evaluate under the rules of evidence, not just admissibility, whether or not this third party evidence can come in. [00:21:55] Speaker 00: What the district court did here, and I think context is important, is that these conversations about what I'll call the Arambula related evidence, which is the evidence at issue about third party culpability, happened over multiple very lengthy [00:22:11] Speaker 00: Pre-trial hearings or conferences where defense counsel was given multiple opportunities to explain his evidence to come forward with evidence proving his or showing what the relevance or the evidence he had Supporting his claims that a rambilla for example caused 50 deaths including of a 14 year old aside from the decedent in this case [00:22:34] Speaker 00: And what the district court did acknowledge, there are quotes where he talks about minimal evidence or minimal connection, but that's precisely what the district court is supposed to do. [00:22:45] Speaker 00: The first step is to probe whether the evidence is relevant. [00:22:49] Speaker 00: So the district court's comments that, for example, there's no direct connection or it's minimally probative is unremarkable. [00:22:57] Speaker 00: What the district court did second is precisely what he's supposed to do under this court's law, as Judge Bennett pointed out, which is to evaluate the other factors outlined in Rule 403. [00:23:09] Speaker 00: And if you look at almost every single bucket of evidence that was excluded by the district court, each time the district court outlines why under Rule 403 he's excluding it. [00:23:22] Speaker 00: So the evidence concerning SH. [00:23:25] Speaker 03: To me, that's the most troubling for the government. [00:23:28] Speaker 03: It's close in time. [00:23:29] Speaker 03: It's a kid. [00:23:29] Speaker 03: It's Snapchat. [00:23:31] Speaker 03: It's the same username on Snapchat. [00:23:32] Speaker 03: So what did the district court say about why that was either not relevant or would be excluded under some other rule? [00:23:40] Speaker 03: Sure. [00:23:40] Speaker 00: So that's a record site, 423. [00:23:47] Speaker 00: At the pretrial conference where the death of SH, who was the 14-year-old, was brought up, the district court probed on multiple occasions and inquired of defense counsel what evidence, if any, he had that Arambula was the dealer who provided drugs that killed that 14-year-old child. [00:24:11] Speaker 00: Now, defense counsel cited potentially the testimony of a woman in the community who saw a message. [00:24:19] Speaker 00: That testimony or that evidence was not presented to the district court. [00:24:23] Speaker 00: The district court made clear on the record, I don't have that before me. [00:24:27] Speaker 00: All you're providing me is that Arambula and the 14-year-old were friends on Facebook and they had messaged. [00:24:33] Speaker 00: But in the record, as the government represented as well, [00:24:37] Speaker 00: There was evidence that that transaction never occurred. [00:24:41] Speaker 00: It discussed that with the district court that, yes, they were friends on Snapchat, but there was no evidence that there was actually a consummation of a transaction, a discussion of price or location or anything like that. [00:24:54] Speaker 03: All right. [00:24:54] Speaker 03: So, but normally you don't prejudge facts in these pre... I mean, it was very odd to me what kind of happened here where you had all these kind of mini hearings on [00:25:04] Speaker 03: whether the defense could prove something or not. [00:25:06] Speaker 03: Normally the trial is when you prove something. [00:25:08] Speaker 03: So in that situation, for example, we have one where the defense says that they have a witness that can show, and there is some evidence that the victim in this case and Arambula, I'm sorry, that SH and Arambula were in communication with each other. [00:25:22] Speaker 03: I think the district court did have that before, correct? [00:25:25] Speaker 03: Yes. [00:25:25] Speaker 03: Okay. [00:25:26] Speaker 03: And then the defense is proffering that there's more to the story. [00:25:30] Speaker 03: So to me, there's not an evidentiary issue here. [00:25:32] Speaker 03: I mean, there's not a, [00:25:33] Speaker 03: There is evidence that there is a relationship between SH and Arambula. [00:25:38] Speaker 03: So what then is the reason for excluding it at that point? [00:25:42] Speaker 00: Because in context, taking a step back, what the district court was dealing with during these pretrial conferences was the defense's position that Jose Arambula had killed 51 people with drugs. [00:25:58] Speaker 00: District court as the gatekeeper of highly prejudicial of the of prejudicial evidence had to make a decision before trial started Which he gave the defendant multiple opportunities to do so. [00:26:10] Speaker 02: Judge owns this question I don't mean to go for leap in on this was with regard to one person not 50 people and honestly counsel [00:26:21] Speaker 02: Uh, when I was a prosecutor and since I've been on the bench, if this were the reverse, I could see the government arguing if this person, um, uh, if Arambula were the defendant being charged and that this were other crimes evidence, it's just, well, your honor, there's evidence that about the time they were communicating. [00:26:38] Speaker 02: We know he was a fentanyl dealer and we know that this person died of exactly the same thing that the victim in this case died in. [00:26:49] Speaker 02: It goes to motive, it goes to intent, it goes to modus operandi. [00:26:54] Speaker 02: I mean, I just think we've all seen things like that admitted by the government and I'm having a hard time seeing why this wasn't at least, [00:27:07] Speaker 00: Why the the district court aired and keeping that one out so With the district court was mindful of with regards to this specific death of the 14 year old around the same time also in the South Bay acknowledge all of those similarities [00:27:22] Speaker 00: was that that evidence, although on its face may seem similar, is extremely prejudicial if you don't have more than just the pure speculation that it happened. [00:27:33] Speaker 00: And so that's why the district court was engaging in that colloquy with defense counsel. [00:27:38] Speaker 02: But we do know that this poor person died of essentially the same thing that the victim in this case died of, right? [00:27:48] Speaker 00: I believe so, yes, of an overdose, yes. [00:27:50] Speaker 00: But of the the same kind of drug right I'd have to check the record, but I do believe that he died of a fentanyl overdose Yes, so I mean it seems to me that gets there Well, and you jump in there. [00:28:02] Speaker 03: You said it's prejudicial. [00:28:04] Speaker 03: I mean that yeah Sometimes very powerful evidence is prejudicial. [00:28:07] Speaker 03: That's why the side wants to introduce it Why was it unduly or unfairly prejudicial to the government? [00:28:14] Speaker 00: Because what the with the district court found [00:28:17] Speaker 00: was that it was unduly prejudicial given the speculative nature how probative it was. [00:28:23] Speaker 00: It's not that it was just prejudicial. [00:28:25] Speaker 00: Of course, prejudicial evidence comes in all the time, especially against a defendant. [00:28:29] Speaker 00: But what a district court's job is to do, especially in a circumstance like this, is to weigh how prejudicial it is against the probative value that's being proffered at the time that the district court is making that decision. [00:28:44] Speaker 03: But I'm just trying to see what's unfair about it. [00:28:49] Speaker 03: I mean, look, it may be that it's not very good evidence, and it happens all the time. [00:28:53] Speaker 03: I mean, someone's accused of his wife, and they say, well, you know what? [00:28:56] Speaker 03: The Night Stalker was out there. [00:28:57] Speaker 03: It wasn't me. [00:28:58] Speaker 03: It was the Night Stalker who killed my wife. [00:29:00] Speaker 03: Why isn't this different than the Night Stalker? [00:29:02] Speaker 00: So if I could answer that question, looping back in Judge Bennett's question about Modus Operandi, [00:29:13] Speaker 00: Defendant Wilson was able to put in was precisely the type of modus operandi evidence against defendant Arambula. [00:29:23] Speaker 00: The crux of the evidence he was able to put in showed his criminality, showed Arambula's criminality and showed his modus operandi. [00:29:31] Speaker 00: Defendant was permitted to, number one, show that Arambula was a drug dealer on Snapchat, just like defendant Wilson. [00:29:38] Speaker 00: Number two, that Arambula had conversations on Snapchat with the decedent in this case the night that the decedent died. [00:29:48] Speaker 00: It's modus operandi. [00:29:50] Speaker 00: Number three, that Jose Arambula was arrested or was indicted some 15 months later after the decedent's death for selling to undercover agents the exact same blue little M30 pills that contained fentanyl. [00:30:08] Speaker 00: the crux of that argument that somehow defendant Wilson was not able to show that a rambula had modus operandi opportunity or intent it was all there. [00:30:20] Speaker 02: I don't want to repeat myself but I mean my problem is that [00:30:25] Speaker 02: The question in this case was whose pills killed this poor young man and the fact that Arambula who was talking to him that night that there's evidence that he right around that time sold the same kind of pills that killed someone else when the issue is whose pills killed this poor young man it just seems to me [00:30:52] Speaker 02: that excluding that under 403 is an abuse of discretion. [00:30:57] Speaker 00: So I think it's important that the court also look at the messages between the decedent and Arambula. [00:31:05] Speaker 00: During that conversation that night, they're discussing selling oxys, which are those fake M30 pills. [00:31:14] Speaker 00: So the defense [00:31:15] Speaker 00: had evidence from that evening that Jose Rambilla was able and willing and to sell those fake pills. [00:31:23] Speaker 02: But the fact that there was evidence from which a jury could conclude that right around that time he sold a pill to somebody, a teenager that killed that teenager, that didn't come in. [00:31:35] Speaker 02: That is correct. [00:31:38] Speaker 03: So I'm trying to understand the argument you're making. [00:31:40] Speaker 03: Is it that it was properly excluded or that it was harmless error [00:31:45] Speaker 03: Are you arguing both? [00:31:47] Speaker 00: Well, I'm not jumping to harmless error. [00:31:50] Speaker 00: The government maintains that it was properly excluded, that the district court did not abuse its discretion under Rule 403, excluding the death of the 14-year-old, because there was no evidence presented to the district court that that transaction between Arambula and the 14-year-old actually occurred. [00:32:10] Speaker 00: To the extent the panel thinks that excluding that one piece of evidence is error, [00:32:15] Speaker 00: It is harmless. [00:32:18] Speaker 00: There was for two reasons. [00:32:20] Speaker 00: Number one, that to the extent that evidence of the 14-year-old's death would show modus operandi, intent, opportunity, that evidence was in the record from the messages between Arambula and the decedent. [00:32:37] Speaker 00: That argument or that evidence was in the record. [00:32:40] Speaker 00: from Special Agent Thomas' testimony about his spinoff investigation into a rambula. [00:32:47] Speaker 00: And second, it's harmless, and Judge Owens, you asked about the verdict form. [00:32:51] Speaker 00: At docket 140, I'm not sure it's in the appellate record, but at docket 140, it was a special verdict form. [00:32:57] Speaker 00: The jury found, number one, that the defendant distributed fentanyl. [00:33:01] Speaker 00: Number two that the fentanyl caused the decedent's death in this case There was overwhelming evidence at trial that the defendant delivered fentanyl to the decedent if you look at text messages between the decedent and Friends of his sorry I apologize the defendant and friends of his that evening for example [00:33:28] Speaker 00: at record site 1059, the defendant brags to another friend that everyone in his car only did one pill each, and each was barred out. [00:33:39] Speaker 00: There was testimony in the record at 1532 that being barred out refers to being high. [00:33:46] Speaker 00: So the potency of the pills that defendant distributed to the decedent, there was overwhelming evidence of that. [00:33:55] Speaker 00: The people in defendant's car the night he distributed to the decedent took one of those pills and they got high. [00:34:03] Speaker 00: In fact, if you look at also ER 245, later that afternoon after the decedent [00:34:15] Speaker 00: I apologize, after the defendant delivered the pills to the decedent, he said that one of the women in his car, that's Ms. [00:34:23] Speaker 00: Rebecca Brownfield, threw up. [00:34:25] Speaker 00: It's possible that she also overdosed from those potent pills. [00:34:28] Speaker 02: So, counsel, I don't think this is understandably addressed in the briefs, and I'm going to, on his rebuttal, ask your friend this. [00:34:38] Speaker 02: In the government's view, would the panel have the authority to say, [00:34:45] Speaker 02: Just hypothetically, there was error here. [00:34:50] Speaker 02: It was harmful error vis-a-vis. [00:34:53] Speaker 02: Did it cause the death? [00:34:55] Speaker 02: But it wasn't harmful error vis-a-vis. [00:34:57] Speaker 02: Did he distribute fentanyl or is that just something that in the government's view the panel would not have the authority to do? [00:35:04] Speaker 00: I'd request an opportunity to to speak with other people in my office before I before I answered that question We'd be happy to submit a letter and but on on that point I would just go back and say that the the toxicological evidence in this case also provided overwhelming support for the jury's finding that it was defendants fentanyl and [00:35:29] Speaker 00: that caused the decedent's death. [00:35:32] Speaker 00: Dr. Sean Carstairs testified that even if the decedent took those pills potentially five or so hours before he died via chewing, the method by which the decedent ingested the pills, which was chewing, causes what's called a first-pass metabolism. [00:35:52] Speaker 00: You chew the pills. [00:35:53] Speaker 00: This is unlike snorting, which is how many people do take these M30s or fentanyl pills. [00:35:59] Speaker 00: You chew the pills. [00:36:01] Speaker 00: They go through the liver. [00:36:02] Speaker 00: They get metabolized by the system. [00:36:05] Speaker 00: And so it was entirely consistent with the decedent taking these pills potentially five or six hours before his death that he felt the effects and then died. [00:36:15] Speaker 00: So on the one hand, there was almost uncontroverted evidence that the defendant delivered pills to the decedent. [00:36:23] Speaker 00: The decedent posted those pictures, those five M30s, which there is testimony that those are the most common types of pressed fentanyl pills, that any of those pills can kill because they're produced in clandestine laboratories with absolutely no control, that people in defendant's car only took one and got high. [00:36:44] Speaker 00: in that the decedent took all five of those pills and died in the morning from a fentanyl overdose. [00:36:49] Speaker 02: I apologize for not knowing this. [00:36:51] Speaker 02: Was there any expert testimony with say a hypothetical like I'm going to ask you to assume [00:37:00] Speaker 02: that both the defendant and Arambula provided pills to the victim that he took in this general sequence. [00:37:11] Speaker 02: Can you give us an opinion as to which of those or both of those caused the death of the decedent? [00:37:19] Speaker 02: Was there any testimony from anybody's expert which asked for an assumption that two people sold him fentanyl? [00:37:27] Speaker 00: No, I don't believe so. [00:37:30] Speaker 00: But the toxicological evidence that was presented in this case by Dr. Carstairs was fully consistent with the jury's finding that it was defendant's pills that killed the decedent. [00:37:47] Speaker 00: Can I answer any more of the court's questions? [00:37:49] Speaker 02: I have one more question. [00:37:51] Speaker 02: Did you have something? [00:37:52] Speaker 02: No, I don't think so. [00:37:53] Speaker 02: I'm moving to something that really wasn't discussed a lot but it was brought up and it's certainly in the briefs. [00:38:02] Speaker 02: I'm having trouble understanding the district court's exclusion of the expert testimony that drug dealers don't give general advice given the testimony of the government's case agent on this and the fact that [00:38:20] Speaker 02: case agents and people in similar positions give evidence like this all the time about what standard practices and it would seem like in sort of this experiential type of expert testimony, testimony that yeah, this is not something that [00:38:37] Speaker 02: typically would be done [00:38:54] Speaker 00: the government elicited this testimony that that's not accurate. [00:38:58] Speaker 00: If you look at ER 1574, the testimony that Agent Thomas gave about, quote, friendly advice of drug dealers was elicited on cross-examination. [00:39:10] Speaker 00: That's first. [00:39:11] Speaker 00: Second, the district court excluded Ms. [00:39:16] Speaker 00: Zuniga's testimony, part of it under Rule 403. [00:39:20] Speaker 00: the crux of it that's on appeal, which is the friendly advice under Daubert. [00:39:27] Speaker 00: The district court made reliability findings, which are entitled to an abuse of discretion, that number one, the statement itself was not correct or reliable, that categorically drug dealers don't give friendly advice. [00:39:42] Speaker 00: And if you look at the declaration of Miss Zuniga, and that's at 2233, [00:39:48] Speaker 00: This was a categorical sweeping statement. [00:39:50] Speaker 00: This was not a nuanced opinion. [00:39:53] Speaker 00: She said drug dealers don't give general advice. [00:39:57] Speaker 00: The district court did not find that statement to be helpful or reliable or correct, potentially. [00:40:04] Speaker 00: And second, [00:40:07] Speaker 00: I believe the panel asked about Mrs. Zuniga's experience. [00:40:12] Speaker 00: The district court made clear in excluding it that her lack of experience was not representative of the times we live in today and the technology that exists. [00:40:22] Speaker 00: The district court applied its discretion in finding that her experience, which was dated to the early 2000s, albeit in narcotics, [00:40:31] Speaker 00: did not deal with smartphones or Snapchat communications, which this case was largely about. [00:40:37] Speaker 00: So the district court was proper in excluding that unreliable and incorrect testimony. [00:40:47] Speaker 03: All right. [00:40:47] Speaker 03: You've got 10 seconds. [00:40:48] Speaker 00: I will heed Judge Owens' warning that I will leave my four seconds on the table. [00:40:58] Speaker 00: Very well. [00:40:58] Speaker 00: So thank you. [00:40:59] Speaker 03: Thank you, counsel. [00:41:01] Speaker 03: Mr. Mason three minutes. [00:41:14] Speaker 01: Thank you. [00:41:16] Speaker 01: I will go through. [00:41:18] Speaker 01: in order the notes I took the government's presentation. [00:41:22] Speaker 01: First, let's start with the suggestion that the exclusion of this evidence was harmless. [00:41:28] Speaker 01: I think the best way, I've been thinking about how to articulate this, the best way to look at this is to look at my closing argument. [00:41:34] Speaker 01: It starts at 2035 of the excerpts record. [00:41:38] Speaker 01: It goes about 40 pages. [00:41:39] Speaker 01: It's a good read. [00:41:39] Speaker 01: It's a good closing. [00:41:41] Speaker 01: Now, read it again and plug in [00:41:45] Speaker 01: all of the bullet points of the excluded evidence, and we've listed them for you both in the opening brief and in the beginning of the reply brief. [00:41:54] Speaker 01: All of the evidence that was excluded, the witnesses that were excluded, the expert testimony that was excluded, the information about Arambula that was excluded, plug that into the argument and ask yourself whether that argument would have been more persuasive in moving the jury [00:42:09] Speaker 01: on the issue of third-party culpability, and I think it's quite clear that it would have made a huge difference. [00:42:15] Speaker 01: Second, as far as the district court's reasons and the applicability of the Espinoza case, looking at the Espinoza case, there are a lot of memorable passages to quote. [00:42:27] Speaker 01: 517, this is 880 F3rd, has one good one. [00:42:32] Speaker 01: We think, as we have explained, establishing a link between the third party and the crime. [00:42:38] Speaker 01: In other words, what the district court said here over and over again, you must show Arambula giving those drugs to Nathan Young. [00:42:44] Speaker 01: And if you don't have that, I'm not going to let you put it in. [00:42:48] Speaker 01: Here's what this court said. [00:42:49] Speaker 01: Establishing a link between the third party and the crime is not a threshold requirement for admissibility of third party culpability evidence. [00:42:59] Speaker 01: In that same case, the district court [00:43:01] Speaker 01: Here's another quote, that the defense's theory may be speculative is not a valid reason to exclude evidence of third party culpability. [00:43:10] Speaker 01: The district court is not free to dismiss logically relevant evidence as speculative. [00:43:16] Speaker 01: That is verbatim from this court. [00:43:19] Speaker 01: The district court applied this erroneous standard that this court has announced as erroneous. [00:43:25] Speaker 01: excluding the evidence because it was speculative in the district court's view. [00:43:28] Speaker 01: I disagree with that. [00:43:29] Speaker 01: And because it showed other acts and not direct the crime at issue. [00:43:36] Speaker 01: With respect to the young man, SH, who died, government counsel just characterized that as defense said he would bring some woman from the community. [00:43:45] Speaker 01: It was his mother. [00:43:47] Speaker 01: I had her ready to come to court and testify. [00:43:50] Speaker 01: And she's the one who looked at his phone after he was dead and saw the text from Mirambula. [00:43:57] Speaker 01: The government's claim that everything was harmless because I was allowed to make the argument of third-party culpability. [00:44:05] Speaker 01: That is, I think, the crux of this case. [00:44:09] Speaker 01: I'm allowed to put in evidence as well. [00:44:11] Speaker 01: Simply being able to point the finger and say something is not enough. [00:44:15] Speaker 01: I should be allowed to put on the evidence. [00:44:18] Speaker 01: With that, Your Honor, my time has expired, and I appreciate the Court's time. [00:44:22] Speaker 01: If the Court has further questions, I'll be happy to answer them. [00:44:27] Speaker 02: Judge Bennett has a question for you. [00:44:29] Speaker 02: So, as I asked your friend, does the defense have a position as to not whether it would be right to do it, but does the defense have a position as to whether the court would have the authority to say, hypothetically, there was error here, it was harmful as to the cause of the death, but it wasn't harmful as to distributed, so we're theoretically sending it back just on that. [00:44:57] Speaker 01: Yes, Your Honor, I thought about this as I was sitting there listening to the court's question. [00:45:01] Speaker 01: As I understand this particular statute, the mens rea runs to the intentional distribution of a substance believed by the defendant to be a controlled substance. [00:45:11] Speaker 01: As to whether or not the substance was actually fentanyl, that's a separate question. [00:45:15] Speaker 01: And then for the causing death, obviously that's an objective question that does not [00:45:20] Speaker 01: require an intent nobody suggests that Declan Wilson or most of the other defendants in these cases intended to cause anybody death so I don't think though I mean given [00:45:32] Speaker 01: There was no mens rea as to the distribution of fentanyl. [00:45:35] Speaker 01: So my difficulty with that, and I agree with my colleague for the government that this is something that we should all go back and research, and perhaps we can submit 28-J letters. [00:45:44] Speaker 01: I think if we remove the causing death, we may find ourselves back in an arena in which mens rea with respect to the drug is required. [00:45:55] Speaker 01: But by analogy with other types of trafficking, [00:45:59] Speaker 01: cases in which there is no requirement that the defendant know the specific type of drug. [00:46:04] Speaker 01: I would probably lean that direction as to what it's going to be, in which case the court's suggestion, I think, would be within the court's power. [00:46:12] Speaker 01: But I will undertake to do that research and submit a 28-J letter. [00:46:16] Speaker 03: I do think it would be helpful. [00:46:17] Speaker 03: I mean, that was part of the reason why I was asking you the question, is the same reason that Judge Bennett was asking the question. [00:46:21] Speaker 03: So yeah, I mean, we can do a formal order if it would help, or you guys can, well, it's experience advocates, you guys can get us 28-Js. [00:46:28] Speaker 03: We'll make sure we read them before we file anything in this case. [00:46:31] Speaker 03: Thank you, Your Honor. [00:46:32] Speaker 03: Thank you, everybody. [00:46:33] Speaker 03: Very interesting case. [00:46:34] Speaker 03: Very well brief, very well argued, we really do appreciate it. [00:46:37] Speaker 03: This matter is submitted and we're done for today.