[00:00:03] Speaker 01: Morning. [00:00:03] Speaker 00: Good morning, your honors. [00:00:17] Speaker 00: Good morning and may it please the court, Hunter Haney for Jerry Boylan. [00:00:21] Speaker 00: I hope to reserve four minutes for a bottle and I'll watch my clock. [00:00:24] Speaker 01: How much time? [00:00:24] Speaker 00: Four minutes, please. [00:00:26] Speaker 00: The 2019 conception fire was an undeniable tragedy. [00:00:31] Speaker 00: Today, however, concerns two sets of compounding legal errors that prejudicially impaired the trial defenses of the Conception's captain, Mr. Boylan. [00:00:41] Speaker 00: First, misinstructing the jury regarding civil regulations and the required culpable acts, mental state, and causation standards for Siemens manslaughter, and second, permitting inadmissible expert testimony to meet those reduced burdens. [00:00:54] Speaker 00: Unless the court prefers otherwise, I'll address each of those points in order. [00:00:58] Speaker 00: The criminal law [00:01:00] Speaker 00: abhors negligence per se convictions. [00:01:02] Speaker 00: But the court here encouraged that outcome in three ways. [00:01:05] Speaker 00: First, instructing that the regulations set forth the standard of care, calling attention to the regulations over other evidence, and inventing a multi-factor test for weighing their significance. [00:01:17] Speaker 00: The regulations played an outsized role in this trial and in the instructions, comprising over a half page of single-space text in the instructions. [00:01:25] Speaker 01: Harmfully reducing mr. Boylan's industry standard evidence to a mere afterthought Well, let me ask you this if we were to interpret the statute and Find that the statute only requires negligence It would seem to me that the instruction issue somewhat goes away because under the instruction your argument would be that that [00:01:50] Speaker 01: I think there's an argument under the instruction that they found gross negligence as well as with the misconduct and or gross negligence. [00:02:00] Speaker 01: But if we interpret the statute, it hasn't been interpreted in the Ninth Circuit. [00:02:07] Speaker 01: It has been interpreted in another statute and they found that to be merely negligence as the standard, correct? [00:02:13] Speaker 01: Correct. [00:02:14] Speaker 01: So if we were to similarly find like the other circuit, [00:02:20] Speaker 01: it would seem to me that your argument on the instructions would go away. [00:02:25] Speaker 00: So that's the second argument we're making. [00:02:27] Speaker 00: The first argument we're making doesn't really turn on the correct negligence standard. [00:02:31] Speaker 00: It turns on ultimately under this court's decisions in Wolf and White Eagle. [00:02:36] Speaker 00: on the principle that regulations cannot supply a critical offense element here. [00:02:42] Speaker 00: Whatever the sort of level of negligence was, regulations cannot do that because, in effect, it tells the jury quite powerfully, using these statements of law, that this, that the- But the instruction that was given said it didn't say that a regulation means per se that you violated the law, right? [00:03:03] Speaker 01: But it's some evidence. [00:03:05] Speaker 00: It said that the regulations constituted the standard of care. [00:03:09] Speaker 00: It set forth the standard of care, and then it proceeded to list the regulations. [00:03:13] Speaker 02: It said the mere fact that the defendant violated a regulation is not by itself sufficient to establish a violation of Section 1115. [00:03:21] Speaker 00: Yes, and prior to that, it said that it set forth the standard of care. [00:03:25] Speaker 00: And there's a real tension there, right? [00:03:26] Speaker 00: And the same exact problem occurred in Wolfe. [00:03:28] Speaker 00: The court instructed very similarly that the regulations were mere background evidence. [00:03:33] Speaker 00: And the court still determined, as here, that the regulations overwhelm the trial, given the role in the government's case. [00:03:39] Speaker 02: But it also, the jury instructions also said, you may consider whether the defendant failed to comply with one or more of those regulations. [00:03:46] Speaker 02: And if so, whether that or those failures provide evidence as to one or more of the elements of section [00:03:54] Speaker 02: of the Section 1115 crime. [00:03:56] Speaker 00: And there was no question that the regulations could provide evidence. [00:03:59] Speaker 00: They were admitted into evidence. [00:04:00] Speaker 00: There was no disagreement as to the fact that they could constitute evidence. [00:04:04] Speaker 00: The issue is that in the totality, as in Wolf and White Eagle, several other cases we've set forth from out of circuit, the regulations were basically, in effect, dwarfed Mr. Boylan's contrary industry standard evidence. [00:04:19] Speaker 00: The government's experts emphasized the regulation's importance [00:04:23] Speaker 00: They equated the violations with negligence and misconduct, effectively stating that they were the cause of death. [00:04:28] Speaker 00: They were used in opening and closing 23 distinct times and equated with gross negligence. [00:04:33] Speaker 01: We're not talking about a case where, let's just say hypothetically, that your client had violated a statute that said you should only eat at a certain time or that there was [00:04:50] Speaker 01: You know, all of the statutes that were in there had to do with safety issues, training issues, all of those. [00:04:57] Speaker 01: So it seems that it's a difficult argument for you to make that the statutes that [00:05:03] Speaker 01: It doesn't, per se, come to the conclusion. [00:05:05] Speaker 01: But these statutes seem pretty relevant to what happened here. [00:05:09] Speaker 00: Their relevance is not in question. [00:05:11] Speaker 00: They were never in question in Wolf and White Eagle either. [00:05:13] Speaker 00: There's no question they could have been admitted here. [00:05:15] Speaker 00: It's just that they were improperly used and framed by the courts. [00:05:19] Speaker 04: That's what I'm trying to say, how? [00:05:20] Speaker 04: Because they can try their case. [00:05:22] Speaker 04: Regulations are significant. [00:05:23] Speaker 04: And if this was a police case, use of force, you would go through all the training and regulations that police officers would receive, whether they were negligent or not, or shooting someone. [00:05:31] Speaker 04: Why is that different here? [00:05:33] Speaker 00: Because the instruction took the issue basically away from the jury and afforded the regulations an outsized role. [00:05:39] Speaker 00: But even if the court disagrees. [00:05:41] Speaker 04: Fair enough. [00:05:42] Speaker 04: I don't want to get you to walk down, but you keep saying that. [00:05:44] Speaker 04: I'm trying to understand what part of the instruction did what you say. [00:05:48] Speaker 00: The instruction looking at ER 138 that the [00:05:55] Speaker 00: The Secretary of Homeland Security has issued regulations, some of which set forth the standards of care and safety precautions to protect against hazards on vessels. [00:06:03] Speaker 00: And it goes through and it lists the instructions. [00:06:05] Speaker 00: The First Circuit in Moffett, a case we set in our reply brief, also found that listing regulations in the way that the court did here [00:06:14] Speaker 00: again, afforded the government's evidence a higher status. [00:06:18] Speaker 00: And here, of course, this is evidence set as a force of law over the defense's contrary theory. [00:06:23] Speaker 00: But even if the court were to disagree on this point, as Your Honor referenced, the court further airs. [00:06:28] Speaker 02: What if the introductory instructions, they say the evidence you are to consider in deciding what the facts are consists of the sworn testimony of any witness, the exhibits received in evidence, any facts to which the parties have agreed. [00:06:39] Speaker 02: Sure. [00:06:41] Speaker 02: Er 139 you must consider all of the relevant evidence regarding the existence or non-existence of gross negligence and the other elements of section 1115 [00:06:50] Speaker 00: Sure. [00:06:51] Speaker 00: And again, the point that we're making is not solely about the instructional language. [00:06:54] Speaker 00: It's also about just the use of the evidence throughout the trial. [00:06:57] Speaker 00: And that's what really animates the decisions in Wolf and White Eagle. [00:07:00] Speaker 00: But even if the court would disagree with us, the court further aired by instructing on this binary question of whether Siemens manslaughter could be satisfied by misconduct and or gross negligence. [00:07:12] Speaker 00: Sort of setting aside whether the law of the case or waiver applies, manslaughter statutes usually require gross negligence and Siemens manslaughter is no exception to that rule. [00:07:21] Speaker 01: And the court erred under Garcia for... California has a misdemeanor manslaughter for driving if you just turn left if you commit any infraction and someone dies. [00:07:31] Speaker 01: So it's not unheard of that there are criminal statutes that [00:07:37] Speaker 01: or negligence. [00:07:38] Speaker 00: And Gomez-Leon does a very helpful survey of statutes nationwide. [00:07:42] Speaker 00: And those statutes exist, but the vast majority, the common law tradition that- What would be the point of having 1115 if it's just 1112? [00:07:49] Speaker 02: 1115 is specific to captains of vessels. [00:07:56] Speaker 00: Correct, Your Honor. [00:07:57] Speaker 02: Right? [00:07:57] Speaker 02: If we just wanted this just to be involuntary manslaughter, there'd be no need for a separate statute. [00:08:02] Speaker 02: Well, there are enhanced- And Congress, specifically in text, [00:08:07] Speaker 02: chose not to say gross negligence, chose to just say negligence? [00:08:11] Speaker 00: Yes. [00:08:12] Speaker 00: There are a couple sort of parts to that question there, and I want to make sure I get to all of them. [00:08:19] Speaker 00: The enhanced penalties in the statute speak to the difference, right? [00:08:24] Speaker 00: There's a 10-year penalty here versus an 8-year penalty for the involuntary manslaughter statute. [00:08:29] Speaker 00: And that is enough to incentivize cautiousness. [00:08:32] Speaker 00: And similar policy arguments, I'll note, [00:08:35] Speaker 00: were rejected in Rouen and Rahef as not really relevant to the question of the proper mental state. [00:08:41] Speaker 00: And I know Your Honor referenced Alvarez and O'Keefe earlier as existing sort of contrary precedent. [00:08:46] Speaker 00: But those courts did not really have an opportunity to thoroughly. [00:08:49] Speaker 02: We want to talk about the penalties. [00:08:51] Speaker 02: Involuntary manslaughter is imprisonment not more than eight years. [00:08:56] Speaker 02: But this semen manslaughter is not more than 10 years. [00:09:00] Speaker 02: So why wouldn't it be consistent that Congress would have a lower bar? [00:09:04] Speaker 02: to be convicted of the Siemens if they're going to give you 10 years. [00:09:08] Speaker 00: Because Congress, again, knows the background assumptions that traditionally are imported from the common law when it legislates. [00:09:19] Speaker 01: Well, when people go out to sea and they're under a captain, arguably they're in a particularly vulnerable situation because you're not [00:09:31] Speaker 01: right where you can call 911 and everyone gets there. [00:09:34] Speaker 01: And so putting more on a captain to make sure that there are safety regulations in place, it doesn't seem odd to me. [00:09:45] Speaker 01: But let's assume a lot of the errors that you, I know that you also attack the expert witnesses and the court basically said, hey, these people are experts, but you can cross examine them. [00:09:57] Speaker 01: it basically goes more to the weight than to the admissibility. [00:10:02] Speaker 01: Then we've got to interpret if we interpret the statute is just negligence enough or then if we don't interpret the statute and go with the jury instructions, was it confusing or could they have convicted on some theory that would not be correct? [00:10:19] Speaker 01: At the end of the day, if we say you've made some errors, we still would have to look at [00:10:25] Speaker 01: the entirety of the evidence to analyze it all for harmless or prejudicial error, right? [00:10:31] Speaker 01: So maybe you could help me here on that it would seem that there's some pretty damning undisputed evidence in the record about the lack of training of people and the lack of things that it [00:10:54] Speaker 01: would seem that it would be hard for a jury to do anything other than to convict even if there had been some errors because you had of the crew, they were very untrained. [00:11:08] Speaker 01: It seems undisputed. [00:11:09] Speaker 01: They didn't know where certain things were. [00:11:11] Speaker 01: They walked by the station, what the station that could have hooked up to, they didn't know where that was. [00:11:21] Speaker 01: And at best, it seems that perhaps the captain had a short huddle with people, tried to get people out and then went overboard and they evacuated pretty quickly. [00:11:33] Speaker 01: So, what is in the evidence, it just seems pretty undisputed that there was just a total lack of training and that this crew didn't, you know, that the captain vacated pretty darn quickly. [00:11:49] Speaker 01: And that after that, the people that he had, had no training, were walking by things. [00:11:55] Speaker 01: There was only one fire extinguisher, I believe, that was used. [00:11:59] Speaker 01: There were other fire extinguishers that people had known where they were, or there was a life-saving station. [00:12:06] Speaker 01: What in the evidence is there that [00:12:09] Speaker 00: could show that this would not be harmless error. [00:12:20] Speaker 01: legally sufficient, but before here on harmlessness review. [00:12:25] Speaker 00: The government argues that in a completely conclusory way and it's brief and that's not sufficient under Rodriguez to demonstrate harmlessness. [00:12:35] Speaker 02: There's six fire extinguishers, only one out of six was used and it was used by a passenger. [00:12:41] Speaker 02: Okay, there are two fire stations with 50-foot fire hoses. [00:12:43] Speaker 02: Not a single one was used. [00:12:45] Speaker 02: The fire axe was not used. [00:12:47] Speaker 02: The public address system was never used to alert the passengers of the fire or give them instructions. [00:12:54] Speaker 02: These are not conclusions. [00:12:58] Speaker 02: These are facts. [00:12:59] Speaker 02: So why wouldn't there be harmless error if [00:13:02] Speaker 02: Captain Boylan, first to abandon ship, doesn't even notify any of the passengers that there's a fire. [00:13:08] Speaker 02: And the PA system is right next to the phone where he called the Coast Guard. [00:13:13] Speaker 00: He stayed on the ship until he was actually on fire and then left the ship and then reported. [00:13:18] Speaker 02: It was not clear whether he was on fire. [00:13:20] Speaker 00: One witness said that smoke was trailing after him. [00:13:22] Speaker 02: They said they saw smoke was behind him. [00:13:25] Speaker 02: But the fact that he never bothered to even give [00:13:28] Speaker 02: Notice to passengers using the public address. [00:13:31] Speaker 00: It's unclear that the public address system would have had a difference given the fact that but you don't the passengers were didn't bother to give any notice to passengers he was doing exactly what the Coast Guard and the station bill required which was to direct fire suppression efforts and to call the Coast Guard given that the fire was already out of the fire suppression efforts of the crew including the captain none of five fire extinguishers were used and [00:13:58] Speaker 02: No fire stations were used. [00:14:00] Speaker 02: Again, no 50 foot fire hoses were used. [00:14:03] Speaker 02: No fire axe was used. [00:14:05] Speaker 00: The crew was attempting to get to those items to use them. [00:14:09] Speaker 02: They had time to all jump overboard immediately to have Molitor swim back and get a skiff off the boat. [00:14:18] Speaker 02: After they would get back onto the water and they were all able to get on the skiff and go to safety. [00:14:22] Speaker 02: I guess I agree with Judge Kellahan is [00:14:26] Speaker 02: What is your best argument that harmless error doesn't apply here? [00:14:29] Speaker 00: So as to the negligence question, the question, of course, is gross negligence. [00:14:34] Speaker 00: No one knowing of facts that reasonably indicated a substantial and unjustifiable risk to human life, as the court defined it. [00:14:40] Speaker 02: But let me ask you with that question. [00:14:42] Speaker 02: So it says misconduct and or acted with gross negligence, which means acting with wanton or reckless disregard for human life. [00:14:51] Speaker 02: There's no comma after gross negligence. [00:14:53] Speaker 02: I would agree if there were a comma after gross negligence, then the phrase, which means acting with wanton or reckless disregard for human life, would describe only gross negligence and not misconduct. [00:15:06] Speaker 00: So I want to make sure I address your author's harmless air question too. [00:15:09] Speaker 00: But on that point, I do think that there's a couple of things. [00:15:14] Speaker 00: Wanton and reckless disregard is, of course, the legal definition of gross negligence. [00:15:18] Speaker 00: It's not the definition of misconduct, as we've shown in our briefs. [00:15:21] Speaker 00: Also, disjunctive terms are presumptively given separate meaning. [00:15:24] Speaker 00: And there's a which means, of course, limiting clause, which in this context, I think, presumptively applies to the phrase that it follows under Lockhart. [00:15:31] Speaker 00: And I think as a matter of simple grammar, the language would say which mean rather than which means if it was referring to multiple terms. [00:15:41] Speaker 00: The instructions also use different verbs, acting versus engaged and so on. [00:15:47] Speaker 02: Can I ask one last question on your regulation? [00:15:50] Speaker 02: Sorry, this is my last question. [00:15:52] Speaker 02: The coastal regulations, they're not limited to large or small vessels, right? [00:15:57] Speaker 02: They just say vessels. [00:15:59] Speaker 00: The regulations were the T regulations, which are specific to this type of vessel. [00:16:04] Speaker 00: It's a specific section of the Code of Regulations of a certain size. [00:16:08] Speaker 00: And there was testimony on that at trial. [00:16:10] Speaker 02: If I look at all of the regulations, they just say vessel. [00:16:14] Speaker 02: I'm sorry. [00:16:16] Speaker 02: So you're saying none of these regulations apply to small vessels. [00:16:20] Speaker 02: They only apply to large vessels? [00:16:21] Speaker 00: No, no, no. [00:16:21] Speaker 00: The regulations apply only to small dive vessels like this under the T regulations. [00:16:29] Speaker 02: Okay. [00:16:30] Speaker 02: But even [00:16:33] Speaker 02: Mr. Tortoro, who is the expert said that he does provide training regarding small vessels as part of his experience correct. [00:16:40] Speaker 00: He teaches courses regarding it small vessels. [00:16:44] Speaker 00: Yes, regarding small vessels, but he had no industry experience in that regard. [00:16:49] Speaker 00: But just to sort of turn back. [00:16:51] Speaker 00: So I want to make sure I could answer the question about harmlessness. [00:16:54] Speaker 00: The defense presented several witnesses demonstrating that Mr. Boylan followed the operating practices of the industry that were deemed safe for decades. [00:17:01] Speaker 00: This is how everyone operated. [00:17:03] Speaker 00: Roving patrols were unpracticed and unfamiliar, even to the Coast Guard. [00:17:07] Speaker 00: And so were battery fires. [00:17:09] Speaker 00: The bottom line is that boats were too resource strapped at the time and focused on daytime emergencies. [00:17:15] Speaker 00: which were the vast majority of emergencies that had occurred up to that point. [00:17:20] Speaker 00: There was limited time for training, given the 16-hour days and company resources. [00:17:25] Speaker 00: But Mr. Boylan, as with everyone else in the industry, made the best of what he had. [00:17:29] Speaker 00: He did orient his crew, and he did give safety briefings, and he did make sure that the crew members knew the emergency equipment. [00:17:37] Speaker 00: the government's witnesses, including Matthew Curtu. [00:17:39] Speaker 01: But they walked past it. [00:17:41] Speaker 01: They couldn't even find anything. [00:17:43] Speaker 00: So Mikey Coles did walk past it once as he was attempting to go get the fire extinguishers, which was his duty. [00:17:50] Speaker 00: He emphasized it was his duty because it was [00:17:56] Speaker 00: it was actually required by the Coast Guard under the station bill that he was to get the fire extinguishers. [00:18:02] Speaker 00: The other crew members who were responsible for the fire hoses did not make it in time and that's because the fire was spreading so rapidly. [00:18:10] Speaker 00: So the bottom line is everyone was doing what they were required to do and that they were trained to do and they were [00:18:16] Speaker 00: trained on those specific items. [00:18:21] Speaker 00: But the bottom line is that the egresses, because of the location of the fire, were immediately blocked in by flames. [00:18:27] Speaker 00: Both of the egresses were inside of the salon, and the fire, of course, [00:18:33] Speaker 00: happened, whether it happened in the trash can or happened at the back of the salon, happened in a way where it blocked the only exit in immediately. [00:18:43] Speaker 00: So no fire. [00:18:44] Speaker 01: The passengers, they died of smoke inhalation. [00:18:47] Speaker 01: The fire wasn't there. [00:18:49] Speaker 01: It was on the other side, right? [00:18:52] Speaker 00: The fire was above them. [00:18:53] Speaker 01: But they couldn't get to it. [00:18:56] Speaker 00: Correct, Your Honor. [00:18:57] Speaker 00: Yes, they were trapped inside because of the construction of the boat and the speed of the fire, basically. [00:19:02] Speaker 01: OK, let me find out. [00:19:03] Speaker 01: Do you have any more questions? [00:19:05] Speaker 01: No, thank you. [00:19:06] Speaker 01: OK, so we've taken you over. [00:19:07] Speaker 01: I will give you three minutes for rebuttal. [00:19:09] Speaker 01: Thank you, Your Honor. [00:19:10] Speaker 01: Thank you. [00:19:17] Speaker 01: Good morning. [00:19:18] Speaker 03: Good morning, Your Honors. [00:19:19] Speaker 03: May it please the Court, Alexander Robbins on behalf of the United States. [00:19:25] Speaker 03: With the court's permission, I would like to start with a big picture observation on the harmless error point that was discussed. [00:19:32] Speaker 03: And I realize I'm going backwards, and I realize that the jury was correctly instructed, and I would like to address some of my colleagues' arguments. [00:19:39] Speaker 03: But big picture, I think it's important to take a step back, looking at the totality of the record, looking at what was actually argued before the jury in that courtroom two years ago. [00:19:52] Speaker 03: None of the hairs that we are splitting here today about different standards of causation or different standards of misconduct versus gross negligence or the placement of a comma in the jury instructions had anything to do with what was before that jury. [00:20:08] Speaker 03: If the court looks from the first part of the closing argument, from the first thing that the jury heard from the government in closing argument at [00:20:15] Speaker 03: 31 39 on the record to 90 pages later the last thing that the jury heard from the government It was about gross negligence And it was about causation the words were gross negligence in fact in the very end of the government's statement about Causation how should we find? [00:20:35] Speaker 02: harmlessness or harmless error on actual causation if the government conceded to the district court that you couldn't prove that [00:20:44] Speaker 02: Actual causation and you even conceded to the district court that The main model jury instruction was textbook proximate cause instructions So you even conceded the instruction given was not an actual cause instruction. [00:20:59] Speaker 03: It was a purely proximate cause instruction I appreciate the chance to address that your honor because we did not concede that [00:21:07] Speaker 03: Anything with respect to the but for causation issue it I want to just give the court a few sites to look at later if you would like In our brief at page 44 note 20 we cite a number of parts in the record relevant to this On page, so it's like 44 note 20 in our brief in the blue brief on page 47 the site to the record 179 there was no concession What happened was that the government stated? [00:21:37] Speaker 03: at page 197, the government stated that if, it was the weekend before trial, and I guess it was the Monday of the first week of trial, that if the defense wanted to make this argument, I'm quoting, should have been made in a motion to dismiss the indictment because the government cannot allege nor can approve actual cause in this case, following the word because. [00:22:03] Speaker 03: The government, maybe not artfully worded, [00:22:06] Speaker 03: Again, people are on very little sleep, and they're doing jury instructions. [00:22:09] Speaker 03: The government said that if the defense wanted to make this causation argument, it should have been an emotion to dismiss based on that reasoning. [00:22:16] Speaker 03: And then the government explained and addressed this, the fact that that whole phrase comes after the word because, at page 154 in the excerpts, also in front of the district court, to clear that up. [00:22:28] Speaker 03: And then the district court agreed on page 466, said to the defense, I think you're misinterpreting [00:22:33] Speaker 03: what they're saying. [00:22:34] Speaker 02: The government did not consider that. [00:22:35] Speaker 02: But at ER 197, the government in its brief did say the government did not allege nor can it prove actual cause in this case. [00:22:41] Speaker 03: And you're saying that was... We did not consider, we in fact did prove... [00:22:44] Speaker 03: but for actual cause in the case. [00:22:46] Speaker 03: We also proved substantial factor cause under Maine. [00:22:49] Speaker 03: We proved both. [00:22:50] Speaker 03: And I would like, again, to just point the court. [00:22:52] Speaker 02: OK, separate from what you proved, what did the court instruct the jury to find? [00:23:00] Speaker 02: This is my concern. [00:23:02] Speaker 02: Barrage and Maine clearly require both but for actual and proximate cause. [00:23:10] Speaker 02: Yes. [00:23:11] Speaker 02: When I read Maine, that model jury instruction is just a proximate cause instruction. [00:23:17] Speaker 02: And so my concern is that's the only one given in the jury instruction. [00:23:22] Speaker 02: It appears that there is not an actual cause instruction. [00:23:27] Speaker 02: And if I look at the Ninth Circuit's model involuntary manslaughter instruction, it looks like that also is missing an actual cause instruction. [00:23:37] Speaker 02: So is it the government's position that the Ninth Circuit's model instruction [00:23:41] Speaker 02: for involuntary manslaughter is legally erroneous under barrage in Maine? [00:23:47] Speaker 02: And would that error also be present here? [00:23:50] Speaker 03: So I think we disagree with the premise of Garner's question. [00:23:54] Speaker 03: Because Maine does contain an actual cause or cause and fact component. [00:24:00] Speaker 03: It also contains a proximate cause component. [00:24:03] Speaker 03: I agree, it's not perfectly worded. [00:24:06] Speaker 02: When you say it incorporates both, are you referring to the model or the best formulation that's given at the very end of the decision? [00:24:17] Speaker 02: Is that what you're referring to, or are you referring to the text? [00:24:21] Speaker 03: I'm referring to that as, so what Maine does is it discusses both of the, it discusses both, just to take one step back, cause and fact and actual cause in the case law, and I've always said barrage, barrage, [00:24:33] Speaker 03: as synonymous, Maine discusses actual cause. [00:24:36] Speaker 03: It uses Judge Noonan used the term cause and fact. [00:24:39] Speaker 03: And it also discusses proximate cause or reasonable foreseeability. [00:24:44] Speaker 03: Maine discusses both of those threads of the case law. [00:24:47] Speaker 03: And in fact, if you look at the beginning of Maine, the instruction that the defense proposed that was rejected by the district court [00:24:54] Speaker 03: actually more clearly sets out those two different strands. [00:24:57] Speaker 03: Maine is discussing both of those things. [00:24:59] Speaker 03: Burrage then- OK, but let me ask you. [00:25:03] Speaker 02: In the actual proposed jury instruction language given in Maine, would you agree that that refers solely to proximate cause? [00:25:11] Speaker 03: I do not agree with that, Your Honor. [00:25:12] Speaker 03: That refers to both. [00:25:13] Speaker 03: Maine discusses cause and fact and adopts as its cause and fact standard the substantial fact or substantial factor, cause and fact, actual cause standard, [00:25:23] Speaker 03: that is expressly acknowledged in Burrage as the minority rule. [00:25:27] Speaker 02: Burrage? [00:25:27] Speaker 02: Can I just read it, though? [00:25:28] Speaker 02: The prosecution must prove that the defendant's act or admission was the proximate cause of the death of the victim. [00:25:34] Speaker 02: A proximate cause is one which played a substantial part in bringing about the death so that the death was the direct result, or a reasonably probable consequence of the defendant's speed or condition or manner of driving. [00:25:46] Speaker 02: That, to me, is a proximate cause instruction and not a cause and fact. [00:25:51] Speaker 03: I agree with Your Honor that it is confusingly worded to the extent that it appears to be a definition of one thing following from another. [00:25:57] Speaker 03: In the same way, for example, as the 1112 instruction this Court uses says without due care and then follows it up with a definition that restricts it to reckless and wanton disregard. [00:26:08] Speaker 03: Jury instructions do that sometimes. [00:26:10] Speaker 03: I'm not defending the wording of the instruction. [00:26:11] Speaker 03: I'm defending it as binding and precedential. [00:26:14] Speaker 03: And what I'm saying is, is that in both [00:26:16] Speaker 03: the face of Maine, as well as Burrage in its discussion of this very issue, makes clear, Burrage has a lengthy discussion of substantial part or substantial factor, not as part of the proximate cause definition, but as an alternative rule for evaluating actual cause or cause and fact. [00:26:34] Speaker 03: And that's why we use both Burrage and Maine in our background description of the issue. [00:26:40] Speaker 03: I would also point the court in Maine itself to page 1048, [00:26:45] Speaker 03: towards the end of 1048, when the court sets forth what the defense asked for in that case. [00:26:51] Speaker 03: And actually, that is a more clear example of the two different parts you're talking about. [00:26:56] Speaker 03: The defense asked for an instruction that was rejected that required a substantial part. [00:27:01] Speaker 02: I'm looking at the instruction that was given at ER 138. [00:27:05] Speaker 02: And it says, approximate cause is one that played a substantial part in bringing about the death, so that the death was the direct result or a reasonably probable consequence [00:27:15] Speaker 02: of the defendant's misconduct and or gross negligence. [00:27:19] Speaker 02: So this to me doesn't seem like an actual causation requirement. [00:27:27] Speaker 02: It frankly doesn't even seem like a substantial factor requirement because you can convict just based on a reasonably probable consequence, which seems like it's just talking about foreseeability. [00:27:42] Speaker 02: It's not talking about actual cause. [00:27:46] Speaker 02: It's just what was reasonably probable. [00:27:50] Speaker 03: So the part that we are, and again, the part we're focused on that I'm focusing on is substantial part, which substantial part and substantial factor are discussed synonymously by Justice Scalia and the Supreme Court in Burrage, and also discussed in Maine, although more briefly, as the cause-in-fact component. [00:28:12] Speaker 03: And I don't want to go too far down the rabbit hole in this, because I agree it's not the most well-worded in the sense that the restrictions that are here. [00:28:20] Speaker 02: I'm sorry to interrupt you, but doesn't it define substantial part as reasonably probable consequence? [00:28:27] Speaker 02: And that seems like a lower standard to me than substantial factor. [00:28:32] Speaker 03: I respectfully disagree. [00:28:33] Speaker 03: It says substantial part impinging about the death so that the death was a direct result or the reasonably probable consequence. [00:28:40] Speaker 03: That's the confusing part, and that's the part that I'm trying to articulate to the court that was actually more clearly stated in the defense proposed instructions also discussed in Maine. [00:28:50] Speaker 03: And we know that it's a separate cause and fact actual cause standard, substantial part, substantial factor, because it's discussed at length by the Supreme Court in Burrage. [00:29:00] Speaker 02: I also think- But Burrage says you only go to the lower substantial factor causation [00:29:07] Speaker 02: if Congress uses the phrase contributes to. [00:29:09] Speaker 02: If Congress uses but for, or I'm sorry, other language like results from, based on, because of, that is actual cause. [00:29:23] Speaker 03: So contributes to is a separate, much lower standard. [00:29:26] Speaker 03: That's the standard that was squarely rejected in Burrage. [00:29:30] Speaker 03: That was the standard that was given by the Eighth Circuit or the District Court [00:29:33] Speaker 03: rejected by the Supreme Court in Burrage. [00:29:35] Speaker 02: We can't use substantial factor. [00:29:38] Speaker 02: Because that contributes to is what results in a substantial factor causation standard. [00:29:46] Speaker 03: Contributes to is a much lower standard than substantial factor or substantial part, which the Supreme Court explains could be anything that incrementally contributes to. [00:29:56] Speaker 03: Whereas the Supreme Court in Burrage recognizes the minority rule that substantial factor or substantial part [00:30:02] Speaker 03: is another version of evaluating actual cause. [00:30:05] Speaker 03: In our discussion, our brief, we attempt to give some examples of what's not necessarily lower. [00:30:09] Speaker 03: They're just different standards. [00:30:11] Speaker 03: Two fires that both independent. [00:30:14] Speaker 01: So are you conceding that it was a little bit confusing? [00:30:19] Speaker 03: Your Honor, I would not accuse this court's binding precedent of being confusing. [00:30:24] Speaker 03: I don't think it was confusing in context at all. [00:30:27] Speaker 03: The jury understood what it had to find. [00:30:28] Speaker 01: Confusing in context is different than confusing. [00:30:32] Speaker 03: I think that a clearer response to Judge Coe's concerns, which I certainly shared the first couple times I read this, what is seen in Maine itself in the defense instruction and in the Supreme Court's discussion of the two different parts in Burrage. [00:30:47] Speaker 01: Well, let me go to what your experts testified and what you argued. [00:30:51] Speaker 01: Now, did the experts say that it was the actual cause? [00:30:57] Speaker 03: No, they did not say actual cause or substantial cause. [00:31:00] Speaker 03: they just said caused and led to the deaths. [00:31:02] Speaker 03: And this was the point I was attempting to make at the beginning, that to the extent there are hairs to be split here, to the extent that there are tricky legal questions about which version of a causation standard to use, none of that affected, not just wasn't prejudicial, it literally did not affect a single word of either party's closing argument over 90 transcript pages, with the sole exception of when the government read verbatim [00:31:29] Speaker 03: that one sentence. [00:31:29] Speaker 03: It didn't affect the arguments. [00:31:31] Speaker 03: It didn't affect how the parties frame the arguments. [00:31:33] Speaker 03: It didn't affect anything. [00:31:34] Speaker 03: It was literally irrelevant to the jury's determination which of these two standards to use. [00:31:41] Speaker 03: Again, if the court would like to take a look, the 31-39, the government opens by talking misconduct as being synonymous with gross negligence, which goes to the other point. [00:31:53] Speaker 03: 3227, the last thing the jury heard from the government was that the gross negligence caused the deaths of those 34 people. [00:32:01] Speaker 01: Well, let me, OK. [00:32:03] Speaker 01: So your friend on the other side alleges that the people basically weren't qualified. [00:32:11] Speaker 01: But the judge said, no, these are all qualified witnesses. [00:32:13] Speaker 01: The experts are qualified. [00:32:15] Speaker 01: But you can cross-examine them. [00:32:17] Speaker 01: And so it basically didn't go to the admissibility. [00:32:19] Speaker 01: It goes to the weight. [00:32:20] Speaker 01: And that can all be argued. [00:32:21] Speaker 03: Yes, Your Honor. [00:32:22] Speaker 01: Hypothetically, I'm asking you hypothetically, that if we were to say, oh, these experts were not qualified and should not have been allowed to testify, where would the government be in terms of arguing harmless error? [00:32:41] Speaker 01: Let's just say hypothetically, if we were to go there. [00:32:44] Speaker 03: Two responses, Your Honor. [00:32:45] Speaker 03: The first is if you look at our statement of facts many of which many of the facts of which were discussed by your honors With my colleague a couple minutes ago None of that comes from the experts the story in this case the story that we put in our statement of facts comes from the Percipient witnesses the surviving four crew members who testified at trial Second there wasn't an issue below and I don't understand my colleague to be raising one now about the qualifications of the expert [00:33:13] Speaker 03: My colleague challenges, and they challenge below, a number of, although not all, but a number of the opinions, the reliability findings and the bases for reliability of those opinions that were given. [00:33:26] Speaker 03: And I think to the extent we're talking about particular expert opinions, [00:33:30] Speaker 03: We need to look at the particular opinion. [00:33:32] Speaker 03: And some of them are in plain error. [00:33:34] Speaker 03: Some of them are de novo. [00:33:36] Speaker 03: But in all events, they were properly admitted. [00:33:38] Speaker 03: And I'm happy to address particular opinions. [00:33:40] Speaker 03: I think the big ones are the multiple different fire tests that the ATF fire experts ran, the 100-some small tests. [00:33:50] Speaker 01: I'm just saying hypothetically that if we were to find they shouldn't have been admitted, which is what they were asking. [00:33:59] Speaker 01: Don't let those witnesses testify, right? [00:34:03] Speaker 03: I think it was as to these certain things, but let's just say completely. [00:34:08] Speaker 01: No experts at all. [00:34:09] Speaker 01: So without that evidence, where does that leave you? [00:34:12] Speaker 03: There's no change because Captain Tortora testified about prudent seamanship, which was [00:34:19] Speaker 03: I don't want to say duplicative, because it was relevant evidence. [00:34:22] Speaker 03: But it was consistent with everything that the jury had heard over the last two weeks of testimony about what was required by common sense, what was required by prudent seamanship, and what was required by the regulations. [00:34:33] Speaker 03: And the ATF fire experts testified primarily about the location of the fire. [00:34:40] Speaker 03: The big issue, I think, was whether it was [00:34:43] Speaker 01: Under the stairs. [00:34:44] Speaker 01: You're still talking about what they testified to. [00:34:47] Speaker 01: If that testimony is not there, where does that leave you? [00:34:50] Speaker 03: A conviction based on any cause standard you could use. [00:34:54] Speaker 01: In other words, the experts... No, without the experts, what evidence do you have of causation? [00:35:02] Speaker 03: Oh, the fact that anyone who was awake on a 75-foot boat would have caught, seen a fire at night and caught it before it grew. [00:35:12] Speaker 03: common sense, as well as the example of the Vinson case that was admitted in evidence. [00:35:16] Speaker 03: The defense argument here, and again, I refer, Your Honor, to the closing arguments, because it gives a very good overview of what was actually before the jury, what they actually cared about at trial. [00:35:27] Speaker 03: The defense argument was, this was an impossible situation. [00:35:30] Speaker 03: I think the defense reply brief on page five says, this was an impossibly fast moving fire. [00:35:35] Speaker 03: No one could have done anything about it. [00:35:37] Speaker 03: If that were true, the defendant would have been acquitted. [00:35:40] Speaker 03: It was obviously not true because if anyone had been awake on that boat for the however long, 30 minutes, 20 minutes, 40 minutes, it takes a small fire to grow into a big fire, they would have caught it and put it out. [00:35:54] Speaker 03: And if they had known where the fire equipment was, if they had known where the hoses were, they might have been able to put it out later. [00:36:00] Speaker 03: And if the captain hadn't been the first to abandon ship and jump overboard without telling his 33 passengers and one crew member who were trapped below that he was leaving them, [00:36:11] Speaker 03: at least one person might have been saved. [00:36:14] Speaker 03: That's the causation evidence. [00:36:16] Speaker 01: The causation evidence is... That's what I was asking you. [00:36:19] Speaker 03: I push you the chance to give my answer, Your Honor. [00:36:21] Speaker 02: About Captain Tortoro's testimony that Captain Boylan caused the death of the 33 passengers and the one crew member. [00:36:32] Speaker 02: If that is common sense, then it [00:36:36] Speaker 02: Wouldn't meet Diaz's requirement for an expert opinion because it wouldn't be something beyond a layperson's understanding it wouldn't be a professional opinion and If it is going to the heart of the most important issue in the case then under Valencia Lopez it can't be harmless error So do you want to address those two points? [00:37:02] Speaker 03: Yes, your honor I I think [00:37:06] Speaker 03: Both components of that are wrong. [00:37:09] Speaker 03: In particular, there's a second Diaz case, which is, yeah. [00:37:14] Speaker 03: So there's a Ninth Circuit. [00:37:16] Speaker 03: Right. [00:37:16] Speaker 03: There's the Supreme Court Diaz case, which is a 704b ultimate issue case. [00:37:24] Speaker 03: And Valencia Lopez, I think, is also a 704b ultimate issue. [00:37:27] Speaker 03: Remember, in rule 704, abolished the common law rule and said that you can have expert testimony that encompasses the ultimate issue. [00:37:36] Speaker 03: But you can't have expert testimony in a criminal case on an intent element. [00:37:42] Speaker 03: So not causation, intent elements. [00:37:44] Speaker 03: That's what is going on in Valencia Lopez and Diaz. [00:37:47] Speaker 03: This court has a Diaz opinion as well that we cite in our discussion of this issue, the Ninth Circuit's Diaz, which is about a, that was the one about the prescribing drugs outside the scope of ordinary medical practice, not a 704B issue. [00:38:02] Speaker 03: That was a sort of 704A rule 403 issue. [00:38:06] Speaker 03: and has a different standard for when you can have an expert give an opinion that may substantially overlap with one of the elements. [00:38:17] Speaker 03: In that case, exactly overlap with one of the elements. [00:38:19] Speaker 03: And the court's explanation was, holding was, you can have that when it's a straightforward, vernacular, colloquial articulation of a conclusion and the expert is not [00:38:31] Speaker 03: giving something that is only relevant to a legal element, is taking over the jury's role. [00:38:37] Speaker 03: And in that case, this is outside normal medical practice. [00:38:40] Speaker 03: In our case, it was lack of a roving patrol led to the deaths of those 34 people. [00:38:44] Speaker 03: It's squarely within this court's dias. [00:38:46] Speaker 03: And again, not a 704B issue. [00:38:48] Speaker 03: It's a 704A. [00:38:50] Speaker 02: But do you see there's any tension? [00:38:51] Speaker 02: Because in response to Judge Callahan's question, you said, yes, even without expert testimony, there would be sufficient evidence of causation. [00:39:00] Speaker 02: based on the other non-expert testimony. [00:39:02] Speaker 02: And so then why would you need expert testimony? [00:39:07] Speaker 02: Do you see there's a little bit of tension there? [00:39:10] Speaker 02: The other DSKs, I mean, that's pretty specific, right? [00:39:12] Speaker 02: Prescription medications and that. [00:39:14] Speaker 02: I mean, that has very much a medical expertise that may not be present here. [00:39:20] Speaker 03: I think it's helpful in the sense that, and I guess there is a, right, rule 702 requires helpfulness. [00:39:26] Speaker 03: There are things that are widely known [00:39:29] Speaker 03: among people who know that might not be known by any random juror. [00:39:35] Speaker 03: Maybe some of the jurors know, but some don't. [00:39:37] Speaker 03: So I was thinking off the top things that we have professional interaction with. [00:39:41] Speaker 03: Most Supreme Court decisions are decided unanimously. [00:39:44] Speaker 03: Most decisions of this court are decided unanimously. [00:39:46] Speaker 03: Everybody knows that, but a juror might not if it were relevant somehow. [00:39:51] Speaker 03: Fire is extremely dangerous to see. [00:39:53] Speaker 03: Like everybody in the boating world knows that, but not all jurors might have any. [00:39:58] Speaker 03: Maybe jurors have never been on a boat before, have never given any thought to this. [00:40:01] Speaker 03: So what Captain Tortora did was give helpful under 702 background contextual information to jurors who might not have any familiarity with boating or what you're supposed to do at sea. [00:40:13] Speaker 03: And it was particularly relevant given that the defense here was the sort of everyone speeds defense, that everyone does it. [00:40:19] Speaker 03: Again, look at the defense closing and what my colleague set up here. [00:40:23] Speaker 03: is that it was unpredictable that fire could burn a boat down at sea. [00:40:28] Speaker 03: No one saw this coming. [00:40:29] Speaker 03: This was unprecedented. [00:40:31] Speaker 03: All these things are wrong. [00:40:34] Speaker 03: But that was the defense argument, the jury. [00:40:36] Speaker 03: And the government was entitled to have someone who knew something about boating, as well as other boat captains, to say that that was wrong. [00:40:43] Speaker 04: It seems to me, counsel, this was, in effect, a duty of care case. [00:40:46] Speaker 04: And in every duty of care case, when there's a professional involved, like a captain, you have an expert come in and talk about whether it's a doctor, [00:40:53] Speaker 04: or lawyer or professional, you have someone come and testify what the duties of the job are. [00:40:58] Speaker 03: I agree completely, Your Honor. [00:41:00] Speaker 03: And Captain Tortora provided that. [00:41:03] Speaker 01: All right. [00:41:03] Speaker 01: Do either of my colleagues have any additional? [00:41:05] Speaker 01: All right. [00:41:06] Speaker 01: We've taken you over, but thank you. [00:41:07] Speaker 01: Thank you, Your Honor. [00:41:08] Speaker 03: We would ask this court to inform the conviction. [00:41:11] Speaker 01: All right. [00:41:11] Speaker 01: We'll give you three minutes on rebuttal. [00:41:23] Speaker 00: Thank you, Your Honor. [00:41:23] Speaker 00: Just a couple of points. [00:41:25] Speaker 00: Regarding the government's concession, to go back to the beginning, this wasn't just a matter of inartful wording. [00:41:30] Speaker 00: And I'd point the court to EDIR 197, not only to the concession about actual cause, but just in a couple lines down, the government said that a finding on if actual cause is included in these instructions, and I'm quoting, [00:41:45] Speaker 00: that is a finding that would result in an acquittal that the government could not appeal. [00:41:50] Speaker 00: This was a clear concession to the lower court, and it had legal and factual significance because, as Your Honors pointed out, the reasonable probable consequence language in the instruction essentially allowed the jury to convict under a much lesser standard. [00:42:12] Speaker 00: That is a standard that's been equated by this court with materiality, just a likely outcome, and the court in Maine said that. [00:42:20] Speaker 00: The jury could have found death on this record was a likely outcome of a roving patrol, but that a roving patrol would not have been lifesaving under the circumstances. [00:42:30] Speaker 00: And that was because all evidence showed that the fire originated and it spread in a way that immediately blocked the egresses. [00:42:37] Speaker 00: The government experts said that the roving patrol standard was hourly and that a larger salon fire would have been harder to extinguish. [00:42:45] Speaker 00: And just to turn back to the hose again, a point I was thinking about while I was sitting down, even if Mr. Coles could have retrieved the fire hoses, which were immediately made inaccessible by the fire, [00:42:58] Speaker 00: They had to be uncoiled to actually be effectively operated and turned on. [00:43:03] Speaker 00: We know causation was an important aspect of this case because the jury's final note inquired about it. [00:43:10] Speaker 00: And secondly, just to sort of pivot to the expert issue, pre-trial, the government represented, this is at ER 3520 and 21, that the timing and the location of the fire was important and the crux of its causation. [00:43:27] Speaker 00: arguments. [00:43:28] Speaker 00: And so it needed this expert testimony, these origin opinions, and then, of course, Captain Titora's testimony to sort of fill in the gap regarding that unknown time period when no one was awake. [00:43:40] Speaker 00: That is a gap, of course, that none of the crew members could, of course, speak to. [00:43:46] Speaker 00: I'd also like to emphasize in Maine, a specific passage at 1049 to 50, that causation is a quintessential factual question that the jury is peculiarly qualified to resolve in all criminal cases. [00:44:02] Speaker 00: Even if the court here thinks that maybe but for cause is satisfied, and the court in Maine indicated strongly that it thought proximate causation could have been satisfied on the record, this is an issue that should not have been removed from the jury, ultimately. [00:44:17] Speaker 00: That's directly from Maine. [00:44:20] Speaker 00: So I've seen that I'm out of time. [00:44:23] Speaker 00: If I may just briefly wrap up, unless the court has any [00:44:26] Speaker 00: Any further questions? [00:44:27] Speaker 00: Thank you. [00:44:28] Speaker 00: The conception fire tragically affected many people. [00:44:33] Speaker 00: And in these circumstances, the easiest course may seem to be to overlook the trial errors or excuse them as harmless. [00:44:39] Speaker 00: But that would be a grave mistake. [00:44:42] Speaker 00: Public interest in ensuring a fair trial is at its zenith in high profile cases like this one. [00:44:49] Speaker 00: And Mr. Boylan should have been permitted an opportunity to fully pursue his defense with a properly instructed jury [00:44:55] Speaker 00: and removed from the cloud of inadmissible expert testimony. [00:44:59] Speaker 00: And without that, the court and the public cannot have confidence in the verdict. [00:45:02] Speaker 00: The conviction should be vacated. [00:45:04] Speaker 01: All right. [00:45:05] Speaker 01: Thank you both for your very helpful argument in this case. [00:45:08] Speaker 01: This matter will stand submitted. [00:45:11] Speaker 01: And we realize that this is a difficult argument for everyone to sit and listen to. [00:45:18] Speaker 01: And we appreciate all the people in the audience listening carefully to the arguments that are made before the court. [00:45:25] Speaker 01: This court is in recess till tomorrow at 9 a.m. [00:45:29] Speaker 05: All rise. [00:45:30] Speaker 05: This court stands in recess until 9 a.m. [00:45:45] Speaker 05: tomorrow morning.