[00:00:00] Speaker 01: It may have pleased the court. [00:00:01] Speaker 01: I'm Karen Landau and I represent Henry Benson. [00:00:07] Speaker 01: So I think the principal question here today is whether the curative instruction, whether any curative instruction can be sufficient to mitigate the prejudice when a law enforcement witness gives testimony that the defendant admitted to committing an element of the offense. [00:00:24] Speaker 01: In other words, it fully [00:00:26] Speaker 01: The admission that the law enforcement agent testified to in this case was that the defendant said he had the shotgun for defense against robbery. [00:00:35] Speaker 01: And that was conclusive of guilt of the 924C, because the gun was there, and there was clearly drug trafficking going on. [00:00:45] Speaker 01: And in fact, the drug trafficking wasn't even, there was cross-examination, but it really wasn't contested. [00:00:51] Speaker 01: He was making party pills, which were mostly bunk, but there was methamphetamine in them, and there was enough evidence. [00:00:56] Speaker 04: I get your point, but it's a big hill to climb. [00:01:02] Speaker 04: And in this particular case, you got Mr. Benson's counsel, who elicited the alleged admission the second time, and he also was able to cross-examine nearing on the alleged admission. [00:01:16] Speaker 04: What's wrong with that? [00:01:18] Speaker 04: Obviously, it's not an ideal way to conduct things, but to have a new trial. [00:01:23] Speaker 04: That's a big deal. [00:01:24] Speaker 04: Why weren't these remedial steps enough? [00:01:28] Speaker 01: Again, I think it comes down to the evidence was [00:01:34] Speaker 01: I think there's several points. [00:01:35] Speaker 01: First, the evidence was very prejudicial. [00:01:37] Speaker 01: There's very little that's more prejudicial than the idea that the defendant admitted doing something. [00:01:43] Speaker 01: That's a very, very prejudicial thing. [00:01:46] Speaker 04: But he admitted it a second time with his own counsel. [00:01:49] Speaker 01: Well, he didn't admit it. [00:01:51] Speaker 01: And counsel, I mean, there was a lot of things that went on there. [00:01:54] Speaker 01: I think part of it is the context in which this happened. [00:01:57] Speaker 01: I think the first, so the first thing was the government introduced the evidence, or I would say Agent Nehring decided to embellish his, he gave a little bit embellished, some embellished testimony. [00:02:10] Speaker 01: So that's the first thing. [00:02:11] Speaker 01: So then, and then during that time, it came up whether, it, it became, because based on his, his statements, which were nowhere in the discovery, and nowhere in the reports, [00:02:24] Speaker 01: there was an issue about whether there was a Miranda violation. [00:02:29] Speaker 01: So council explored that. [00:02:31] Speaker 01: and decided that he wasn't going to pursue that because it didn't appear that there wasn't, you know, it wasn't clear enough. [00:02:36] Speaker 01: Or, I mean, counsel did it. [00:02:37] Speaker 01: I wasn't trial counsel, so I can't answer as to counsel's motivations. [00:02:42] Speaker 01: I mean, then he said, well, okay, the best I'm going to get. [00:02:45] Speaker 01: Then before, now mind you, the government is still standing on Agent Naring's testimony. [00:02:50] Speaker 01: So the, so the counsel says, well, I'm going to cross-examine him, you know, and then he does cross-examine him. [00:02:55] Speaker 01: The next day, the government moves to strike the testimony. [00:02:58] Speaker 01: So that, yes, you're right, Your Honor, it's not ideal. [00:03:03] Speaker 02: Isn't that powerful enough that the government's not standing behind the testimony? [00:03:09] Speaker 02: Why do we need something more than that? [00:03:12] Speaker 01: Because then, because Niren got to say the testimony twice. [00:03:17] Speaker 01: Because then he gets on the stand, and he testifies as an expert, and he has so much credibility. [00:03:23] Speaker 01: And mind you, this is a witness who's really almost the whole case. [00:03:26] Speaker 01: I mean, there's forensic chemists, and there's, you know, a little bit of this and that, but really he's the whole case. [00:03:31] Speaker 01: He testifies every day of the trial. [00:03:34] Speaker 01: He says, well, when we see guns, we believe they're related. [00:03:44] Speaker 01: And then he goes into this explanation about why the shotgun is a tactical weapon and this and that. [00:03:49] Speaker 01: And I will address that briefly subsequently in this argument, hopefully. [00:03:56] Speaker 01: But I think that's the problem. [00:03:58] Speaker 01: And you know, Your Honor, I'm not saying there's not enough evidence to convict him. [00:04:02] Speaker 01: I didn't argue sufficiency. [00:04:04] Speaker 01: What I'm saying is in this case, the evidence wasn't overwhelming. [00:04:07] Speaker 01: We have this shotgun. [00:04:08] Speaker 01: It's shoved way under shelf. [00:04:10] Speaker 01: They have to use a flashlight to see it. [00:04:13] Speaker 01: It's covered with dust and hair. [00:04:15] Speaker 01: You know, they admit that it's there. [00:04:17] Speaker 01: Now, mind you, my client runs into the bathroom. [00:04:20] Speaker 01: Does he grab for the gun? [00:04:21] Speaker 01: No, he doesn't grab for the gun. [00:04:23] Speaker 01: He runs in the bathroom, shuts himself in the bathroom, and then he comes out and he surrenders. [00:04:28] Speaker 01: So, you know, there was evidence, too, that he, you know, for example, he, you know, they followed him, they saw him meet with the guy, so Agent Naring was buying, you know, party pills from this fellow, Ruiz, and they managed to identify my client as the source. [00:04:47] Speaker 01: There's no evidence he carried a gun. [00:04:48] Speaker 01: There is no evidence they found, you know, he wasn't bringing a gun. [00:04:51] Speaker 02: So is your argument that the reason why the curative instruction doesn't work here is because the evidence was not as strong as it could be? [00:04:57] Speaker 01: Yes, that's part, no, the evidence is, what my argument is, is that the stricken evidence was very, very prejudicial. [00:05:04] Speaker 01: And the evidence that he possessed the gun in relation to a drug trafficking offense was not overwhelming. [00:05:11] Speaker 01: And I think that's the right call in this case. [00:05:14] Speaker 01: I mean, I recognize it's a big hell to climb. [00:05:17] Speaker 02: The point though, any time you strike, usually it's prejudicial. [00:05:20] Speaker 02: So I just don't understand what makes this case unique than every other time that we affirm the use of curative instructions. [00:05:27] Speaker 01: Because again, it's an admission. [00:05:29] Speaker 01: And if you look at the cases cited by the government, like the, now I can't think of the name of the case, but there's one case where the government cites it. [00:05:39] Speaker 01: And it's, you know, this court said, well, the conservative instruction was enough. [00:05:45] Speaker 01: Well, it was a brief comment by a witness that the defendant, I think that she was afraid of the defendant or she thought the defendant was dangerous. [00:05:54] Speaker 01: And it was stricken and they went on and that was it. [00:05:57] Speaker 01: This was, again, this was testimony from the case agent, the major witness in the case, and he testified that my client said I had the gun because I was afraid of being robbed. [00:06:09] Speaker 01: That's pretty conclusive. [00:06:11] Speaker 01: Again, it's not just if believed, it's conclusive. [00:06:17] Speaker 01: And it was parroted by the expert testimony. [00:06:20] Speaker 01: So it makes it really hard to disregard testimony when it's repeated in another way. [00:06:26] Speaker 01: I think that's a very strong message. [00:06:27] Speaker 04: Do you have any case that would be on all fours with this? [00:06:32] Speaker 04: I'm not aware of any. [00:06:34] Speaker 04: Obviously, we're human beings. [00:06:35] Speaker 04: Humans are imperfect. [00:06:37] Speaker 04: Trials are imperfect. [00:06:39] Speaker 04: But we're dealing with an abuse of discretion standard here. [00:06:41] Speaker 04: The judge struck the testimony, instructed the jury. [00:06:45] Speaker 04: We have long held that juries are deemed to have understood the instruction. [00:06:52] Speaker 04: We've all heard cases before where you have experts testifying about how drug dealers protect themselves. [00:07:00] Speaker 04: I mean, I probably heard 50 cases involving that, and it's been upheld in almost every case. [00:07:07] Speaker 04: So what I'm struggling with, I get your point about it's not fair, in quotes, but to overturn the trial, to have a mistrial, [00:07:15] Speaker 04: I'd like to see some case law that backs up your position. [00:07:18] Speaker 01: Well, Your Honor, these are factual matters. [00:07:20] Speaker 01: There's often not case law on a factual point. [00:07:23] Speaker 01: Okay, but you don't have any cases. [00:07:25] Speaker 01: I have a case that's on all fours, the closest, but I can tell you, you know, this is really a case where, as I said in the brief, you know, the agent threw a skunk into the jury box and then said, oh, well, let's pretend it doesn't smell, you know. [00:07:42] Speaker 01: The other thing I would add, and this is on the expert testimony argument. [00:07:52] Speaker 01: So I think it's quite troubling that we have, given the prevalence, people own guns all over the United States. [00:08:01] Speaker 01: It's a right. [00:08:02] Speaker 01: You have a right to own a gun. [00:08:04] Speaker 01: So how is something so commonplace, appropriate, [00:08:09] Speaker 01: for an expert to testify that when we see guns and drugs together, the gun is possessed for the purpose of the drugs. [00:08:24] Speaker 02: It's such an obvious inference to make that you're right. [00:08:27] Speaker 02: You don't need an expert to say it, but then you don't need any evidence, frankly, because a jury could say you put guns and drugs together. [00:08:34] Speaker 02: They're used for that purpose. [00:08:35] Speaker 01: Well, that's right. [00:08:36] Speaker 01: That's right. [00:08:37] Speaker 01: But when you have an expert saying it, again, it becomes almost conclusive, Your Honor. [00:08:43] Speaker 01: And I question whether that's an appropriate use. [00:08:46] Speaker 02: I would say it's almost harmless then, even if it is an error, because it's just an obvious inference. [00:08:51] Speaker 01: It is or it isn't, but again, when you have an expert saying it, and then you have this dusty, hairy gun shoved under a shelf, I mean, really, I would say it invades the province of the jury. [00:09:08] Speaker 01: If there's no further questions, I would reserve my time for rebuttal. [00:09:13] Speaker 04: You may certainly do so. [00:09:15] Speaker 04: And even though you're not with the government, you can do that. [00:09:22] Speaker 04: Very well. [00:09:22] Speaker 04: So this time we are going to hear from Mr. Pearson, who is with the government. [00:09:26] Speaker 03: Correct, Your Honor. [00:09:27] Speaker 04: Very well. [00:09:28] Speaker 03: Good morning, Your Honors. [00:09:29] Speaker 03: May it please the court, Ross Pearson, for the government. [00:09:31] Speaker 03: Mistrials are exceedingly rare and disfavored. [00:09:34] Speaker 03: And in this case, the district court followed what this court has described as the preferred alternative when it gave a curative instruction, struck Agent Neary's testimony, and instructed the jury to disregard it. [00:09:45] Speaker 03: And that was not an abuse of discretion. [00:09:47] Speaker 03: And I want to just turn to the prejudice issue, because I think my colleagues suggest that this was so overwhelming evidence that there was nothing else that could have met the standard for the government. [00:09:57] Speaker 03: And that's simply wrong. [00:09:59] Speaker 03: This case is a common 924C fact pattern, where you have a drug dealer who has a gun strategically located to protect his drugs. [00:10:06] Speaker 03: And the evidence here showed that Mr. Benson had his gun where it would take him about half a second to reach it. [00:10:12] Speaker 03: In that same room, he had tens of thousands of dollars worth of pills. [00:10:16] Speaker 03: He had a money counter and he had digital scales. [00:10:18] Speaker 03: And it was right down the hall from where he was manufacturing thousands of pills in his pill press operation. [00:10:24] Speaker 03: And on top of that, even without the stricken testimony, Mr. Benson admitted post Miranda that he had possessed that shotgun. [00:10:32] Speaker 03: He pointed out where it was and directed the agent to the shotgun shells. [00:10:35] Speaker 03: And then, of course, there's the testimony that drug dealers often keep guns in their residence in case they're going to get robbed. [00:10:42] Speaker 04: What's the government's response to your friends? [00:10:46] Speaker 04: suggestion that when the authorities arrived, he ran into the bathroom rather than grabbing the gun. [00:10:52] Speaker 04: Was it that there was tens of thousands of pills in there that he was trying to hide and flush down the toilet or something like that? [00:10:59] Speaker 03: He certainly was trying to flush pills down the toilet, but the answer to that and why he didn't grab the gun was because DEA agents were now loudly knocking at his front door saying DEA and coming into the residence. [00:11:12] Speaker 03: So it's a different situation than when you have someone who's [00:11:14] Speaker 03: Protecting their drug stash from a would-be rob so he knew it was law enforcement that was trying to enter not in quotes robbers in quotes correct absolutely your honor and I think the the court questioned my colleague about the How high of a bar this is I just want to point out that in lemus this court said that the prejudice has to be so Severe that it's more likely than not that the comment that was stricken materially affected the verdict [00:11:39] Speaker 03: And Judge Smith, you asked if there's any case that's on all fours, and the answer is no. [00:11:44] Speaker 03: There's not a single case cited by any of the parties in which a court of appeals held that a district court had abused its discretion when it struck testimony instead of declaring a mistrial. [00:11:54] Speaker 02: Can I ask why did the government withdraw that Agent Nearing's testimony? [00:11:58] Speaker 03: It's because it wasn't memorialized in any statement. [00:12:01] Speaker 03: That happens all the time. [00:12:02] Speaker 03: It does, Your Honor, although I think our position is that it was different because it was the defendant's own statement. [00:12:09] Speaker 03: And under Rule 16, we believe that, at least under principles of fairness and sort of the embodiment of Rule 16, that the defendant should have notice of their statement, that it should have been stricken. [00:12:19] Speaker 03: And that's why we decided to move to strike it. [00:12:22] Speaker 03: We weren't acknowledging that it was false or perjured testimony. [00:12:25] Speaker 03: Agent Nearing just remembered it differently than what the other agent had written down in a report from something that happened four years earlier. [00:12:32] Speaker 03: But we thought just out of a sense of fairness that it should have been stricken. [00:12:37] Speaker 00: Is your district a open file discovery district out of curiosity? [00:12:42] Speaker 03: It is not, Your Honor. [00:12:42] Speaker 03: We follow just traditional discovery practices under Brady Rule 16, Jenks, and Giglio. [00:12:49] Speaker 03: If the court doesn't have any other questions, we would ask the court to affirm. [00:12:53] Speaker 04: Very well. [00:12:53] Speaker 04: We always welcome these types of presentations. [00:12:58] Speaker 04: All right. [00:12:59] Speaker 04: So returning again to Ms. [00:13:03] Speaker 04: Landau, you've got some time left. [00:13:05] Speaker 04: You can concede yours as well if you want. [00:13:07] Speaker 04: It's up to you. [00:13:12] Speaker 04: Very well. [00:13:13] Speaker 04: Thank you both for your excellent presentations. [00:13:15] Speaker 04: We appreciate it. [00:13:16] Speaker 04: The case just argued of United States Benson is submitted.