[00:00:00] Speaker 03:
This case is set for 15 minutes per side.

[00:00:06] Speaker 03:
And so if you want to make a rebuttal argument, please try to stop before all your time is used up.

[00:00:16] Speaker 03:
But I probably shouldn't say this, but if you get into trouble on your time, I'll end up giving you an extra minute or two.

[00:00:30] Speaker 01:
So your honors, may it please the court, I am here on behalf of the Helen Marvin Butterfly.

[00:00:37] Speaker 01:
There are two issues before the court here today in this argument.

[00:00:42] Speaker 01:
And the first one I want to dive right into is what does that corruptly persuades mean under 1512B?

[00:00:48] Speaker 01:
A person has a right not to voluntarily cooperate with law enforcement.

[00:00:51] Speaker 01:
Engaging in non-coercive persuasion of a witness to not voluntarily cooperate with law enforcement

[00:00:58] Speaker 01:
does not constitute corrupt persuasion under the statute.

[00:01:03] Speaker 01:
In the Supreme Court's decision in Arthur Anderson analyzing the same statute, the Supreme Court tells us that corruptly in the context of the statute means wrongful, immoral, depraved, evil.

[00:01:16] Speaker 01:
And the way we see this illustrated in the case law, both this court's case Doss as well as the Third Circuit's case Farrell, what we're looking for in regard to that corrupt persuasion

[00:01:26] Speaker 01:
is somebody asking someone to engage in a course of conduct that is privileged or otherwise lawful.

[00:01:34] Speaker 01:
And what we can see in Doss is we actually have two examples because he's charged with two separate counts.

[00:01:40] Speaker 01:
The first one is in regard to his wife, these correspondents saying that he does not want her to testify.

[00:01:46] Speaker 01:
The court says that because there is a marital spousal privilege against testimony, that that can't constitute corrupt persuasion.

[00:01:57] Speaker 01:
And but if you look at those letters.

[00:02:00] Speaker 01:
You know we have at least excerpts provided by the court you have the situation Where in the first one there's no no reference to marital privilege the second one at least mentions that husband and wife But it is to say very clear that that's what he is going for in regard to these persuasive letters asking her not to testify Counsel let me ask you this why is it that your that mr.. Butterfly used Eric's phone code to call and so what I think that would go to is

[00:02:30] Speaker 01:
part of the other part of the analysis in regard to whether it's corrupt persuasion, which is I think that demonstrates the consciousness of wrongdoing, but it still doesn't answer the question about whether what he was asking to happen was actually wrongful or depraved or corrupt under the statute.

[00:02:46] Speaker 01:
So I don't think that it's the situation where I think that that gets that knowingly or that consciousness of wrongdoing, but it doesn't make the underlying conduct actually something that's unlawful.

[00:02:55] Speaker 01:
Does it make it wrong?

[00:02:57] Speaker 01:
Was his conduct wrong?

[00:02:58] Speaker 01:
Was his conduct wrong?

[00:03:00] Speaker 01:
I don't think, it wasn't corrupt at least as defined under the statute.

[00:03:04] Speaker 01:
I'm just, I'm asking whether, are you defending it as not being wrongful?

[00:03:09] Speaker 01:
I think the answer to that is yes, because ultimately, especially my interpretation of the conversation is he's asking her not to voluntarily cooperate.

[00:03:19] Speaker 01:
He's not asking her to lie, like in DOS in regard to CF.

[00:03:24] Speaker 01:
In one of the other cases that that's citing to, which is Baldrige out of the Ninth Circuit, they're asking the person to lie.

[00:03:30] Speaker 01:
There's nothing indicating in that

[00:03:33] Speaker 01:
communication that he's asking Mr. Krosue to have Ms.

[00:03:37] Speaker 01:
Allen lie.

[00:03:38] Speaker 01:
He's asking her not to voluntarily cooperate.

[00:03:40] Speaker 01:
Now, and law enforcement doesn't have the right to have somebody voluntarily cooperate.

[00:03:45] Speaker 01:
They do have a process for making somebody cooperate, whether that's subpoena or otherwise, but I don't think that him asking her not to cooperate is the same as asking him

[00:03:56] Speaker 01:
to have her engage in an unlawful course of action.

[00:03:59] Speaker 01:
It is a crime for you to lie to law enforcement or to lie within a proceeding.

[00:04:04] Speaker 01:
It is something where it's potentially a crime if you are disregarding a lawful subpoena, whether that's for documents, whether that's for testimony.

[00:04:12] Speaker 01:
But I don't think there's any indication in the record or what he's asking for here is for her to engage in an unlawful course of action.

[00:04:19] Speaker 02:
Counsel, so I just want to confirm, Allen was never subpoenaed to testify?

[00:04:22] Speaker 01:
Not that I can tell under the record.

[00:04:25] Speaker 02:
But if she were, and he asked her to voluntarily not listen to the subpoena, are we in a different situation?

[00:04:33] Speaker 01:
Yes, I think we are.

[00:04:34] Speaker 01:
Because at that point, he is asking her to refrain from a course of action that she is required to do.

[00:04:39] Speaker 01:
So you cannot disregard a subpoena.

[00:04:42] Speaker 01:
And same thing in regard to you can't lie, whether that's in the context of law enforcement or when you're actually in front of the court during proceedings under oath.

[00:04:51] Speaker 01:
And I think that also kind of gets back to why sticking to a specific privilege isn't a useful framework.

[00:05:01] Speaker 01:
Because if you look at what happens in Farrell in that Third Circuit case, the comment from the person to his co-conspirator is, I'll crucify you if you talk to law enforcement.

[00:05:14] Speaker 01:
And what the court interprets that is, well,

[00:05:16] Speaker 01:
under the findings of fact by the trial court is he's saying that if you talk to the government about my wrongful conduct, then I'm going to talk to the government about your wrongful conduct.

[00:05:26] Speaker 01:
And then is that really asking the person to engage in a Fifth Amendment privilege against self-incrimination?

[00:05:33] Speaker 01:
I think at that point we're putting form over substance in regard to, as opposed to asking what is the underlying question, is what I'm asking the other person to do lawful.

[00:05:45] Speaker 04:
So does it matter to you that this is that he's trying to persuade a victim of intimate partner violence that she should not be cooperating?

[00:05:54] Speaker 04:
Does that factor into the way that we should look at this situation?

[00:06:00] Speaker 01:
I don't think so, because what if it's just from a hypothetical standpoint, what if this was marital?

[00:06:04] Speaker 01:
And it's like, OK, if I'm asking the person to invoke their marital privilege against testifying against me, but also the underlying concern was domestic violence,

[00:06:13] Speaker 01:
then how is that any different in regard to the, I guess, we would colloquially say something that we don't like or that we might disprove of.

[00:06:22] Speaker 01:
And of course, in that situation, there might be other evidence in regard to is this actually threatening or is this extortionate?

[00:06:28] Speaker 01:
Is there some sort of implication of if you don't follow this course of action, I'm going to essentially retaliate against you.

[00:06:35] Speaker 01:
And I mean, if you look at the current transcript, admittedly, it is a

[00:06:40] Speaker 01:
There's a lot of swearing.

[00:06:41] Speaker 01:
There's a lot of idioms of, you know what I mean, you know what I'm saying, that sort of thing.

[00:06:45] Speaker 01:
But I think when we look at the end, especially as what Krochu's interpretation, both within that conversation, that trial, is that Butterfly is asking him to see if Alan will not cooperate, will not appear.

[00:06:57] Speaker 01:
And that's Krochu's interpretation, both in that conversation.

[00:07:01] Speaker 01:
Because at the end of it, what Krochu says is, hey, Stacey goes over there.

[00:07:04] Speaker 01:
Maybe I can have her talk to her.

[00:07:06] Speaker 01:
And he's like, that'd be great.

[00:07:08] Speaker 01:
So that's what I think the court should conclude, is that if you're not asking the person to engage in an unlawful course of action, whether that's refraining from action or taking action, then it should not be corrupt persuasion under the statute.

[00:07:22] Speaker 01:
Because then we're not reaching that wrongful, immoral, depraved, evil standard set forth by the Supreme Court in Arthur Anderson.

[00:07:29] Speaker 01:
I do want to move to the second argument, which is attempted suffocation.

[00:07:34] Speaker 01:
And so what the statute says is that it is

[00:07:37] Speaker 01:
suffocation or attempted suffocation if the person covers the mouth or nose, impeding the person's normal breathing.

[00:07:44] Speaker 01:
And in this situation, what the record and testimony shows is that he had his hand over Miss Allen's mouth for three to five minutes, but that she can continue to breathe normally, through her nose at least.

[00:07:55] Speaker 01:
And I think the way that we need to interpret impeding within the statutory language here is blocking.

[00:08:02] Speaker 01:
Because if you're not preventing a person from breathing,

[00:08:06] Speaker 01:
then it's not suffocation.

[00:08:09] Speaker 02:
And so what do we do then with the or in the statute?

[00:08:13] Speaker 02:
Because it's or nose or mouth.

[00:08:16] Speaker 02:
And presumably, if I only cover one, I'm always going to be able to breathe through the other.

[00:08:20] Speaker 01:
Well, and I can think and I've practiced this because I don't want to cover my mouth and give the example because it makes it hard for me to argue.

[00:08:26] Speaker 01:
But you could push your hand into somebody's mouth in a way that isn't maybe completely blocking the nose, but is also obstructing their ability to breathe.

[00:08:35] Speaker 01:
And I think the other thing to look at is the second part of the definition, which is we don't need an intent to kill, we don't need visible injury, and we don't need to proactively have an intent to proactively injure the victim.

[00:08:46] Speaker 01:
And I think what that's going to is we don't want to have a situation where the person's defense is

[00:08:50] Speaker 01:
Well, I suffocated them for a minute or something like that, but I wasn't going to complete it.

[00:08:54] Speaker 01:
So that's a situation where you have actually obstructed the person's breathing.

[00:08:58] Speaker 02:
Well, I mean, her breathing was impacted though, right?

[00:09:02] Speaker 02:
Because didn't she say she slowed down her breathing so she wouldn't panic?

[00:09:06] Speaker 01:
She did say that.

[00:09:06] Speaker 01:
And if you're interpreting impeding as impacting, then you're probably right in regard to it.

[00:09:13] Speaker 01:
But I don't think that's the reasonable interpretation of the statute.

[00:09:16] Speaker 01:
when the ultimate thing is suffocating.

[00:09:19] Speaker 01:
You don't suffocate somebody, or you're not trying or attempting to suffocate somebody by covering their mouth, but they're still being able to breathe.

[00:09:27] Speaker 04:
Ultimately... How are you defining impeding then?

[00:09:30] Speaker 04:
Blocking.

[00:09:32] Speaker 01:
Blocking their ability to breathe.

[00:09:36] Speaker 01:
Because otherwise, I actually think the best evidence in the record of this is that it's going on for three to five minutes.

[00:09:41] Speaker 01:
If you're suffocating somebody where you're blocking their ability to breathe, they're not sitting there calmly for three to five minutes.

[00:09:47] Speaker 01:
Because instinctually, we know we need to breathe.

[00:09:50] Speaker 01:
We're going to be thrashing.

[00:09:51] Speaker 01:
We're going to be trying to get away.

[00:09:52] Speaker 01:
And so are we turning something where a person, we don't have a reason for why he's covering the mouth.

[00:09:57] Speaker 01:
But let's say he was trying to prevent her from screaming.

[00:10:00] Speaker 01:
But is that now suffocating somebody because you have your hand over their mouth, but they're still able to breathe through their nose?

[00:10:06] Speaker 01:
I think that we need to interpret that term impeding to mean blocking in this situation, because otherwise we're turning things that aren't suffocation into the crime.

[00:10:16] Speaker 01:
And I do use the analogy in my brief in regard to strangulation, which we see more often.

[00:10:22] Speaker 01:
But it's the same if you're punching somebody in the throat or shoving them.

[00:10:26] Speaker 01:
You're not strangling them.

[00:10:27] Speaker 01:
It's an assault, of course.

[00:10:28] Speaker 01:
But you haven't strangled them in that situation.

[00:10:32] Speaker 01:
And again, there's very little case law in this.

[00:10:35] Speaker 01:
But the one I could find was that Kibler case.

[00:10:37] Speaker 01:
And we have a situation where the person is impacting their ability to breathe.

[00:10:41] Speaker 01:
But he thinks he's doing it by putting his weight on her chest.

[00:10:44] Speaker 01:
And then there's the question of, is the pillow going over her face?

[00:10:47] Speaker 01:
And he's punching her through the pillow to not leave bruises.

[00:10:49] Speaker 01:
Again, not good conduct.

[00:10:51] Speaker 01:
But is he suffocating her?

[00:10:52] Speaker 01:
Is he attempting to suffocate her through the statue?

[00:10:54] Speaker 01:
This is almost the reverse, which is he's got the hand over the mouth, OK, but is he blocking her ability to breathe?

[00:11:01] Speaker 01:
And I think the answer is no, based on the evidence in this case, because it's not suffocation at the end of the day.

[00:11:07] Speaker 01:
I mean, that word we would hope still means something.

[00:11:11] Speaker 02:
And it's not suffocation, because presumably she could still breathe through her nose.

[00:11:16] Speaker 01:
Correct, you're not ultimately blocking her ability to breathe.

[00:11:20] Speaker 02:
Okay.

[00:11:20] Speaker 02:
So I'm just going to, and I know it's kind of a weird scenario here, but what if she had, I don't know, a sinus infection, a cold, nasal congestion?

[00:11:28] Speaker 02:
So she was mouth breathing and then he covered it.

[00:11:31] Speaker 01:
And it's an interesting question of, is that if you have a situation where there's something that prevents somebody from using one of the other, the nose or the mouth, I think that would then go to potentially the intent or otherwise in regard to the act.

[00:11:45] Speaker 01:
But yes, I think the answer is that if there's something that's preventing her from being able to breathe through her nose independent of her mouth, then yes, I think that is suffocation.

[00:11:53] Speaker 01:
So I'm into my rebuttal time unless the court has any other questions.

[00:11:56] Speaker 01:
Otherwise, I will turn it over to my friend here.

[00:11:59] Speaker 03:
Okay, I have one question.

[00:12:01] Speaker 03:
Does the statute make it unlawful to impede somebody from testifying?

[00:12:13] Speaker 01:
Influence so with the intent to influence delay or prevent testimony, so if it's so the answer is yes depending on the circumstances How are they how are they okay then the circumstance?

[00:12:25] Speaker 03:
I wanted to ask about is whether if someone is trying to coerce a witness and to not testify for the whether that kind of coercion

[00:12:41] Speaker 01:
So again, I think the answer depends on the circumstances, because Farrell is a thing where he is trying to coerce the other person not to cooperate or testify by saying, if you testify against me, I'm going to testify against you.

[00:12:53] Speaker 01:
So if the coercion is threatening, if the coercion is, it also has in regard to the statute of misleading conduct, my hypothetical there would be presenting somebody with a falsified document to try and get them to change their testimony.

[00:13:06] Speaker 01:
Like, well, my recollection of it was this.

[00:13:08] Speaker 01:
Well, here, look at this fake email.

[00:13:09] Speaker 01:
I think your testimony is wrong, so you should change it.

[00:13:12] Speaker 01:
I think that's the kind of misleading conduct.

[00:13:14] Speaker 01:
So I do think there are circumstances where coercing somebody is, but it's going to depend on what that coercion entails.

[00:13:22] Speaker 03:
OK, thank you.

[00:13:23] Speaker 01:
Thank you.

[00:13:23] Speaker 03:
Council, we'll add two minutes to your time for rebuttal.

[00:13:33] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:13:34] Speaker 00:
My name is Michael Ellis, and I'm an Assistant United States Attorney based in Spokane, Washington.

[00:13:39] Speaker 00:
I was also a trial counsel for the United States below.

[00:13:43] Speaker 00:
The defendant's convictions should be affirmed.

[00:13:46] Speaker 00:
First, to start with corrupt persuasion, this conduct is wrong, as that term is defined by Arthur Anderson, and that comes from another Supreme Court case, Washington v. Davis.

[00:13:58] Speaker 00:
where the Supreme Court said in the context of forfeiture by wrongdoing but nonetheless a general rule that while defendants have no duty to assist the state, the government, improving their guilt, they do have a duty to refrain from acting in ways that destroy the integrity of the criminal trial system.

[00:14:16] Speaker 00:
So if a defendant has a duty to refrain from acting in ways that

[00:14:20] Speaker 00:
that harm, that subvert, that destroy the integrity of that system, it therefore must be wrong for them to do that, wrong for them, for a defendant to violate that duty and take actions that do risk destroying the integrity of the criminal trial system.

[00:14:36] Speaker 00:
And that rule, adopting that rule into Corruptly Persuades for 1512b is also consistent with Doss, with Farrell, with Arthur Anderson's discussion of things that are not within that scope.

[00:14:49] Speaker 00:
Because what those cases say, they're all about, really, the examples they discuss are privilege.

[00:14:54] Speaker 00:
So in Doss, it's spousal privilege, Farrell, it's attorney-client privilege, and the examples in Arthur Anderson are those two, again, along with attorney-client privilege, citing the Updite case.

[00:15:04] Speaker 00:
And obviously, privilege is part of the criminal trial system.

[00:15:08] Speaker 00:
So that fits with this model, because asking a witness to invoke a privilege they would have can't destroy the integrity of the criminal trial system, because privilege is part of that system.

[00:15:19] Speaker 00:
However, where you're in a situation as here, as with Ms.

[00:15:22] Speaker 00:
Allen, where she had no privilege, she had no right or privilege to withhold her testimony from the trial system, from the public, from, as Farrell says, their civic duty.

[00:15:32] Speaker 02:
Did you subpoena her?

[00:15:34] Speaker 00:
So it wasn't elicited in the record.

[00:15:36] Speaker 00:
Ms.

[00:15:37] Speaker 00:
Allen, as with all witnesses, was under subpoena.

[00:15:39] Speaker 00:
I don't think the absence or presence of a subpoena is the be-all end-all here.

[00:15:45] Speaker 00:
And that really goes back to the structure of 1512b.

[00:15:49] Speaker 00:
So 1512b, 1 and 2a, which were the provisions under which Mr. Butterfly was charged,

[00:15:56] Speaker 00:
criminalized using, in this case, corrupt persuasion to influence, delay, or prevent the testimony, or convince, cause a person to withhold their testimony in an official proceeding, 2D specifically covers corruptly persuading someone to fail to comply with process, so a subpoena.

[00:16:15] Speaker 00:
So if a subpoena was required to violate any of these provisions, when a subpoena is really the particular target of 1512B2D,

[00:16:24] Speaker 00:
it would render parts of B1 and B2A superfluous if a subpoena was required as well.

[00:16:30] Speaker 00:
So I don't think the presence or absence of a subpoena is particularly important here because that is one particular provision of 1512 B2 that Mr. Butterfly was not charged with.

[00:16:40] Speaker 00:
He was charged with other ones.

[00:16:43] Speaker 00:
And again, asking a witness, and this is where there were some questions earlier about the domestic violence nature of this trial as well.

[00:16:51] Speaker 00:
As this court has noted in Blackshire, as the Supreme Court noted in Davis, domestic violence cases are replete with issues of coercion and tampering, all with the effect, as was the goal here, of not having a trial decided on the facts, not having a trial decided on the law, but having a trial decided on the key witness not coming to testify against the defendant.

[00:17:14] Speaker 00:
That was the goal.

[00:17:16] Speaker 00:
It didn't work, but it didn't work largely because Mr. Kroshue decided not to follow through with his earlier agreement on the phone with Mr. Butterfly to relay that message and to try and get Ms.

[00:17:25] Speaker 00:
Allen to not cooperate.

[00:17:27] Speaker 00:
But again, that goes to the overall context here of why this is such a problem, is that as this court has noted, domestic violence situations are frequent flyers with tampering issues and issues that are trying to subvert the trial process from what it's really about, which is what happened.

[00:17:44] Speaker 00:
So, relying on that quote from Davis, this kind of conduct is wrong, as that term is defined by Arthur Anderson.

[00:17:53] Speaker 00:
It is wrong to ask a witness to attempt to persuade a witness who has no privilege or right to decline to testify to not testify.

[00:18:02] Speaker 00:
In terms of some of the other issues that, so again, the privilege issue covers

[00:18:10] Speaker 00:
You know, that is encompassed within the integrity of the criminal trial system.

[00:18:13] Speaker 00:
So these other examples do not, they fit within this metric because if you ask a witness to exercise a privilege, they can exercise.

[00:18:21] Speaker 00:
That's part of the criminal trial system.

[00:18:24] Speaker 00:
Privilege is privilege.

[00:18:25] Speaker 00:
Certain witnesses have privilege.

[00:18:27] Speaker 00:
Many witnesses do not.

[00:18:28] Speaker 00:
If you do not, then you're required to testify, like the Farrell Court noted in the footnote, where they, while not saying they would reach a different result, did carve out

[00:18:37] Speaker 00:
essentially this exact scenario as a situation they were explicitly not covering by their decision, noting that witnesses without privilege have a civic duty to testify.

[00:18:47] Speaker 02:
So let me ask about that, though.

[00:18:49] Speaker 02:
I know you and I understand your argument of why a subpoena is not important, but if she wasn't subpoenaed and she decided I don't want to show up, what would you do?

[00:18:58] Speaker 00:
I probably committed some kind of trial malpractice if I didn't subpoena the critical witness to the case.

[00:19:05] Speaker 00:
I think that if she then didn't show up and no one had actually asked her to show up, because that's what the subpoena does, that's the formal request from the court and the government for her to appear at this hearing.

[00:19:16] Speaker 00:
In that case,

[00:19:18] Speaker 00:
No one would have actually asked her to turn up.

[00:19:20] Speaker 00:
I don't think it would have actually changed the result here, though, given that Mr. Butterfly was charged with attempted witness tampering and not the completed crime.

[00:19:27] Speaker 00:
So his crime was completed when he placed that phone call, because that was the attempt to commit the crime of witness tampering.

[00:19:34] Speaker 00:
It wasn't dependent on whether or not that message was relayed to Ms.

[00:19:37] Speaker 00:
Allen or whether Ms.

[00:19:38] Speaker 00:
Allen ultimately turned up at trial.

[00:19:40] Speaker 00:
His crime was committed when he placed that phone call to Mr. Kroshew.

[00:19:44] Speaker 00:
So in this case,

[00:19:46] Speaker 00:
It doesn't really matter because Mr. Butterfly wasn't charged with the completed crime of actually having tampered with Ms.

[00:19:53] Speaker 00:
Allen.

[00:19:54] Speaker 00:
It was the attempt that he was charged with and that's what he was convicted of doing.

[00:19:58] Speaker 02:
So is it irrelevant if she didn't have to testify?

[00:20:02] Speaker 02:
Let's say it was a... I know this situation is unique, but...

[00:20:06] Speaker 02:
it's a car accident case and you need somebody to come testify because you had eight witnesses.

[00:20:10] Speaker 02:
And so you're asking all eight of them to show up.

[00:20:13] Speaker 02:
One of them decides not to show up because the person who caused the accident called them and said, you know, it'd be nice of you not to show up.

[00:20:21] Speaker 00:
And so it's, and then that person then did not show up.

[00:20:24] Speaker 00:
So in that case, the person asking may well have committed the same offenses as Mr. Butterfly, except the completed crime.

[00:20:31] Speaker 00:
Cause perhaps in that scenario, it could be argued that the tampering was complete because the message was received.

[00:20:36] Speaker 00:
The witness then did not come and therefore was persuaded to prevent her testimony to cause that person to withhold their testimony, the same provisions that Mr. Butterfly was charged with attempting to do.

[00:20:48] Speaker 00:
Because again, the subpoena is covered causing that person to be absent from an official proceeding to which the person has been summoned by legal process is a separate provision.

[00:20:58] Speaker 00:
And so for all these provisions to have independent meaning,

[00:21:01] Speaker 00:
The subpoena has to be kind of cabined into subsection D, while the others, to retain meaning, have to comply more broadly to just causing someone to withhold their testimony, which may well be the case in that car accident example.

[00:21:16] Speaker 04:
But again... Does the government ever find itself in the position of trying to encourage witnesses, encourage people not to come to court, not to testify?

[00:21:27] Speaker 04:
It seemed to me that the defense was trying to make sort of what's good for the goose is good for the gander argument and it's brief.

[00:21:34] Speaker 00:
So obviously the government has higher obligations as administrators of justice under the ethics rules.

[00:21:41] Speaker 00:
The black case, as an example, comes from a foundation of things the government cannot do.

[00:21:47] Speaker 00:
The government cannot take certain actions that impair defense counsel's ability to prepare the case.

[00:21:52] Speaker 00:
The government prosecutor cannot go to a witness and tell them

[00:21:57] Speaker 00:
You should not.

[00:21:57] Speaker 00:
You cannot talk to the defense.

[00:21:59] Speaker 00:
You can't do that.

[00:22:00] Speaker 00:
Because again, it goes to this idea of fairness that the government has a higher obligation to follow through on.

[00:22:05] Speaker 00:
So that would potentially be the government engaging in unethical witness tampering if the government took efforts to, say, preclude or attempt to preclude defense witnesses from appearing at trial.

[00:22:18] Speaker 00:
But again, with the focus here, and again, with that domestic violence context, this is a, as this court and the Supreme Court have noted,

[00:22:25] Speaker 00:
particular problem with these type of cases.

[00:22:28] Speaker 00:
That in part, these statutes, and as we'll get to in a moment, the suffocation strangulation statutes were designed to address that statute in particular is one

[00:22:36] Speaker 00:
entirely designed to deal with a problem localized to intimate partner domestic violence relationships, as it's limited to folks in those relationships by the relationship element that's required to violate the statute.

[00:22:50] Speaker 00:
So with that, are there any other questions on corruptly persuade or witness tampering?

[00:22:57] Speaker 00:
So the main thing I would note moving on to suffocation, attempted suffocation, is there was a lot of conversation about what does suffocation mean?

[00:23:05] Speaker 00:
Suffocation means what Congress tells us it means.

[00:23:09] Speaker 00:
Congress provided a definition of suffocation, just like Congress provided a definition of strangulation.

[00:23:15] Speaker 00:
So what we all may sit and think based on our knowledge of popular culture, of television, of movies, of books, isn't particularly important when Congress gave us a very

[00:23:25] Speaker 00:
Detailed in a lot of ways definition of what suffocation constitutes under federal law under section 113 And what it means is someone has to impede the normal breathing not the breathing not cease all breathing impede the normal breathing of another person by covering their mouth covering their nose or Both and I think the problem with this idea of well the only way to commit suffocation is to cease all breathing is to block all breathing and

[00:23:53] Speaker 00:
is it does result in some of these words and phrases being essentially either rendered meaningless or superfluous in the statute.

[00:23:59] Speaker 00:
Normal breathing simply can mean atypical breathing.

[00:24:03] Speaker 00:
Ceasing a person's breathing entirely, that would constitute impeding their normal breathing, but that's not the only thing that could constitute impeding that person's normal breathing.

[00:24:14] Speaker 00:
Impeding normal breathing can simply mean interfering with normal breathing.

[00:24:18] Speaker 00:
That's a relatively common sense way of understanding that phrase to give meaning to the word normal.

[00:24:24] Speaker 00:
And here, as your honor mentioned, Ms.

[00:24:27] Speaker 00:
Allen referenced that she did change her breathing.

[00:24:30] Speaker 00:
She could not breathe through her mouth.

[00:24:32] Speaker 00:
That is not normal breathing if you're unable to breathe through your mouth.

[00:24:35] Speaker 00:
She had to adjust the tempo of her breathing to account for her mouth being covered and her inability to breathe through her mouth.

[00:24:42] Speaker 00:
So again, normal breathing was impeded, interfered with.

[00:24:46] Speaker 00:
And then the idea of the or, where mouth, nose, or both, there are likely scenarios of people who maybe could have their mouth covered and they're unable to breathe through their nose for some other reason.

[00:25:00] Speaker 00:
But that would be a very strange way of reading the statute to account for that the statute's only really covering certain very uniquely medically kind of oriented persons.

[00:25:12] Speaker 00:
I think it's a much more natural reading to say, well, Congress

[00:25:15] Speaker 00:
wrote this definition to be broad, to deal with a problem, which is the prevalence of strangulation and suffocation incidents within intimate partner violence impacted relationships.

[00:25:25] Speaker 00:
And so this definition was written broadly to account for the dangerousness of these situations.

[00:25:31] Speaker 00:
Just working on domestic violence cases in Indian country, in Eastern Washington, the statistics are replete how dangerous strangulation, suffocation incidents are.

[00:25:41] Speaker 00:
how they can be precursors of far worse violent acts, and it's not remotely illogical for Congress to have written a very broad definition to account for the severe harms that can flow from this type of conduct.

[00:25:56] Speaker 00:
So again, looking at the facts here, looking at what Ms.

[00:25:59] Speaker 00:
Allen testified to, and looking at the definition that Congress gave us, not what we may think of as what suffocation looks like, but what Congress gave us

[00:26:07] Speaker 00:
definition was satisfied here in the jury properly convicted Mr.. Butterfly of that offense So unless the court has any further questions for me on on either issue All right, thank you all Thank you honors before I get into rebuttal you guys have any questions to start with

[00:26:34] Speaker 02:
So now that we know that Miss Allen was subpoenaed, does that change your argument at all?

[00:26:39] Speaker 01:
It would change my argument if she was subject to subpoena at the time the attempted communication occurred.

[00:26:47] Speaker 01:
So that was early in the case.

[00:26:49] Speaker 01:
Again, I trust my friend on the other side.

[00:26:52] Speaker 01:
When he says she was subpoenaed, it would make sense.

[00:26:54] Speaker 01:
Was she under subpoena at the time would still be the question.

[00:27:00] Speaker 01:
OK.

[00:27:02] Speaker 01:
In regard to rebuttal on this suffocation, I agree that we have to follow what Congress says in regard to the definition.

[00:27:09] Speaker 01:
But that assumes the question that I'm arguing is, what does impeded mean in the context of the statute?

[00:27:16] Speaker 01:
And if you are interpreting impeded in a broad way of saying that any minor obstruction otherwise, then

[00:27:26] Speaker 01:
than I would agree, but I don't think that's the only way to read the word.

[00:27:30] Speaker 01:
And in this case, the relevant word in the statute is impeding.

[00:27:33] Speaker 01:
And I think that could Congress have written a definition of suffocation that is completely divorced from any colloquial understanding of what suffocation means?

[00:27:43] Speaker 01:
Yes, they could have.

[00:27:44] Speaker 01:
I just don't think they did.

[00:27:45] Speaker 01:
I think when they're putting impeding in there, they are saying that we are blocking somebody's ability to breathe.

[00:27:51] Speaker 01:
And then in addition to what the rest of the statute says as far as the definition,

[00:27:54] Speaker 01:
it's it is providing some information in regard to why we are wanting to take these situations seriously saying that we don't need to demonstrate an intent to kill we don't need to intend demonstrate an intent to

[00:28:07] Speaker 01:
seriously injure a person, we don't need to have any visible injury.

[00:28:12] Speaker 01:
But I don't think that interpreting the statute of impeding to mean blocking in the situation does anything to make a redundant part of the statutory language.

[00:28:27] Speaker 01:
And so I think that in that context, my reading of the statute and that interpretation of it is still consistent with statutory language in addition to being something that lines up, I think, better with what we would understand suffocation to be.

[00:28:41] Speaker 01:
We're not asking you to go outside of the statutory language in that situation.

[00:28:46] Speaker 01:
Unless the court has any other questions.

[00:28:49] Speaker 03:
All good.

[00:28:53] Speaker 01:
Thank you.

[00:28:54] Speaker 01:
Thank you.

[00:28:55] Speaker 03:
Thank you, counsel.

[00:28:56] Speaker 03:
I want to thank counsel on both sides of this intercede case for their excellent arguments.

[00:29:06] Speaker 03:
And I want to also thank counsel

[00:29:10] Speaker 03:
for traveling across the mountains to make it here.

[00:29:16] Speaker 03:
And with that, the case is now submitted.