[00:00:04] Speaker 02: Good morning. [00:00:06] Speaker 02: Good morning, your honors. [00:00:09] Speaker 04: I'm not sure if this is on. [00:00:10] Speaker 04: You can adjust that if, are you feeling, does she have sound? [00:00:14] Speaker 02: Maybe, or maybe I'm just being quiet. [00:00:17] Speaker 02: Okay, are we good? [00:00:18] Speaker 04: Yeah, you can use your, your either your command, your court voice or your mom voice or your louder voice if you want then so we can hear you. [00:00:28] Speaker 02: Sounds good. [00:00:29] Speaker 02: Good morning, your honors. [00:00:30] Speaker 02: Katie Hurlbrink on behalf of Mr. Quadrato. [00:00:34] Speaker 02: Government psychiatrist Dr. Badre provided four categories of inadmissible and unreliable evidence that undermined Mr. Quadrado's insanity defense. [00:00:44] Speaker 02: He testified falsely about his credentials, violating NAPU. [00:00:48] Speaker 02: He testified that Mr. Quadrado was not credible, violating Rule 702A. [00:00:54] Speaker 02: He said that he saw Mr. Quadrado smoking methamphetamine on video, even though the court repeatedly deemed that opinion unreliable. [00:01:03] Speaker 02: And despite defense efforts to challenge reliability generally, the court never made any express reliability findings. [00:01:13] Speaker 02: For each and all of these reasons, this court must reverse. [00:01:17] Speaker 02: I'll begin with Nappu. [00:01:19] Speaker 02: Dr. Badre's false testimony satisfies all three Nappu prongs. [00:01:26] Speaker 04: Well, I'm most interested in your Napui issue because it's presented, we get a lot of Napui issues, but this is once a little bit different in terms of the timing because it happened before the jury got the case, all right? [00:01:44] Speaker 04: It happened while it was going on. [00:01:45] Speaker 04: A lot of times with Napui, [00:01:47] Speaker 04: We'll get things on habeas cases that'll be many years later and then people are arguing how it would have affected things. [00:01:54] Speaker 04: And in this situation, everyone's got the information before the jury's gone out. [00:01:59] Speaker 04: And so that puts it in a little bit of a different status there. [00:02:03] Speaker 04: And so even assuming that Dr. Badre's testimony regarding his position and title was false and that the government knew it was fault, what's your best argument that it was material? [00:02:16] Speaker 04: It's what is your best case establishing that a false statement as to an expert's title means materiality standard under NAPUI and does the fact that you're not challenging Dr. Badre's other credentials such as his academic credentials, does that affect the materiality or why or why not? [00:02:36] Speaker 04: And so that's, and you also found out in a way that you were able to cross examine him. [00:02:42] Speaker 04: I'm not sure if it was you or you're that person that did the trial and So that means the jury was presented with the evidence Showing that the expert made a false statement if you want to say that and defense was free to argue that the evidence was false and Closing so how does that all all of those things how does that affect your napooey argument? [00:03:04] Speaker ?: I [00:03:04] Speaker 02: Sure, Your Honor. [00:03:05] Speaker 02: So I'll begin with Your Honor's question about the defense learning about the falsehood prior to the case being submitted to the jury. [00:03:15] Speaker 02: That's true, but the defense was not able to effectively cross-examine Dr. Badre because we received the email from the vice chair about eight minutes before court. [00:03:26] Speaker 02: We did present it to the government and to Dr. Badre, but the government [00:03:31] Speaker 02: Objected to hearsay so that email was never presented to the jury they never received actual evidence that that dr. Badre was not truthful and then separately dr. Badre doubled down we asked him Are you know you're not the director of forensic training? [00:03:48] Speaker 02: Are you something to that effect and he responded? [00:03:50] Speaker 02: You know yes, I am [00:03:51] Speaker 02: And then, of course, the government repeated in closing argument that Dr. Badre was the director of forensic training. [00:03:59] Speaker 02: So all the jury got was evidence that Dr. Badre was the director of forensic training. [00:04:05] Speaker 03: But Dr. Badre conceded he was a volunteer, he was not paid, he was not tenured, he was not [00:04:13] Speaker 03: permanent faculty, he was not currently teaching, that his appointment letter didn't give him the title of Director of Forensic Training, conceded there's no Forensic Psychiatry Fellowship Program at UCSD, conceded he was an Assistant Voluntary Professor, he didn't complete a fellowship in Forensic Psychiatry, so why does it matter? [00:04:36] Speaker 03: Yes, Your Honor, so... You were able to get, or your colleague, [00:04:41] Speaker 03: was able to get all of those concessions on cross. [00:04:44] Speaker 02: Correct. [00:04:44] Speaker 02: And so I take your honor's point, why did the title matter? [00:04:48] Speaker 02: And the answer is two reasons. [00:04:51] Speaker 02: First, it provided a source of legitimacy that Dr. Badre's resume was otherwise severely lacking. [00:04:59] Speaker 02: So to be clear, while Dr. Badre admitted all of the things that you mentioned, Judge Koh, he also [00:05:06] Speaker 02: repeated, I am the director of forensic training. [00:05:09] Speaker 02: So he never admitted that those things made him not have a directorship. [00:05:14] Speaker 02: And the directorship provided a source of peer recognition that he otherwise did not have. [00:05:21] Speaker 02: Dr. Badre, despite this self-proclaimed forensic specialty, had not even published one article, peer-reviewed article, in forensics. [00:05:30] Speaker 02: He had no residency. [00:05:32] Speaker 04: Did you bring that out on cross? [00:05:34] Speaker 04: I hadn't published anything. [00:05:35] Speaker 02: Yes, your honor. [00:05:36] Speaker 04: All right. [00:05:37] Speaker 02: So so so that was our argument is that, you know, he doesn't have any peer recognition. [00:05:41] Speaker 02: But Miss Dr. Badre was able to to point to the fact that a prestigious university had conferred a directorship over forensics on to him. [00:05:54] Speaker 02: They don't just hand those out like candy. [00:05:56] Speaker 02: They hand a prestigious university handing out a directorship like that indicates a [00:06:02] Speaker 02: respect for and a value for the person's expertise. [00:06:08] Speaker 04: This is a nomenclature thing and so that has said this isn't, it's not a misrepresentation and so we have to review that for what, clear error, whether? [00:06:20] Speaker 02: No, Your Honor, because the napoo prongs are reviewed de novo and one of the prongs is falsehood. [00:06:27] Speaker 02: Falsehood is reviewed de novo. [00:06:29] Speaker 02: If the district court made underlying factual findings about what happened, that would be reviewed for clear error. [00:06:35] Speaker 04: Well, I guess it would be, shockingly, I have two doctorate degrees, honorary doctorate degrees from various universities that I've been involved in. [00:06:44] Speaker 04: And so if I call myself Dr. Callahan, and then you cross-examine me and say, oh, well, this is just an honorary degree, right? [00:06:52] Speaker 04: And what did you have to do to do that? [00:06:53] Speaker 04: Well, you know, I was on the board of directors, or I was on the regents, or this, that, and the other, or I did that. [00:06:59] Speaker 04: Well, OK. [00:07:01] Speaker 04: I'm not a real PhD. [00:07:02] Speaker 04: You've established that. [00:07:04] Speaker 04: And I didn't do, you know, which is much the same as what Judge Koh said about Dr. Badre. [00:07:11] Speaker 04: So no one would confuse me for, [00:07:14] Speaker 04: you know, a PhD from Cambridge or Oxford or something like that. [00:07:20] Speaker 04: So, I mean, it's just like, okay, call yourself whatever you want. [00:07:25] Speaker 04: Call me Dr. Callahan, but I don't have a PhD. [00:07:29] Speaker 02: But I think the distinction, Your Honor, is that a university actually conferred that honorary degree on you. [00:07:35] Speaker 02: And that means something. [00:07:36] Speaker 02: That means something about your status and your stature. [00:07:39] Speaker 02: But here, no one actually conferred a prestigious directorship. [00:07:44] Speaker 00: Counsel, you say that, but Dr. Badre never claimed that Dr. Light personally gave him that title, right? [00:07:51] Speaker 00: That's correct, Your Honor. [00:07:52] Speaker 00: Dr. Badre claimed that the program director of psychiatric residency conferred the title, correct? [00:07:59] Speaker 00: That's correct. [00:07:59] Speaker 00: And is there anything in the record, a declaration, or even an unsworn statement from the program director of psychiatric residency saying, I did not allow him to use that title? [00:08:13] Speaker 02: Well, a couple of things on that, Your Honor. [00:08:15] Speaker 02: First of all, the director of residency training was cited in the email that Dr. Light sent around, and he agreed that this title did not exist. [00:08:27] Speaker 00: Plus, [00:08:29] Speaker 00: But that's that's not a declaration is this mr.. McCarthy is that your understanding of who this is? [00:08:35] Speaker 00: When I google who's the program director? [00:08:37] Speaker 00: Residency training director that's who comes up um I haven't looked at information outside of the record email from that was cited [00:08:44] Speaker 02: It was from Dr. Light. [00:08:46] Speaker 02: So your honor is correct that it wasn't, you know, sworn testimony from the director of residency training, but Dr. Light, neither were Dr. Badre's supporters' emails, and Dr. Light did provide himself a sworn declaration confirming his... To put a finer point on it, does Dr. Light's declaration rule out the possibility that [00:09:11] Speaker 00: Someone in the hierarchy between light at the top and badre this program director. [00:09:17] Speaker 00: I think his name is McCarthy, but we just know program director Told badre you're the you're the director of forensic training Maybe to get him to come do the job in the first place and then McCarthy was embarrassed that he gave a title that didn't exist or that light was angry about and either forgot to tell the doctor like that or maybe [00:09:38] Speaker 00: Change is tuned in front of Dr. Light. [00:09:41] Speaker 00: Does anything in the record rule that out? [00:09:44] Speaker 02: I wouldn't say it rules that out, Your Honor. [00:09:46] Speaker 02: But the fact that five top tier faculty agree that this position didn't exist makes it unlikely. [00:09:53] Speaker 00: And to the extent that they were- I mean, I'm not really disputing that the faculty say this is not in the hierarchy. [00:09:58] Speaker 00: There is no such position. [00:09:59] Speaker 00: But isn't it within at least the realm of possibility that underlings sometimes do things that they're not [00:10:08] Speaker 00: Authorized to do you know inferior officers sometimes for instance. [00:10:12] Speaker 00: I have a There's a member of my court's clerk's office whose title is courtroom deputy clerk And I refer to her sometimes as my judicial assistant because she performs that duty for me That's not her official title. [00:10:26] Speaker 00: It's nowhere in the hierarchy of our court But if she were to claim she was my judicial assistant would that be literally false? [00:10:34] Speaker 00: Because it's not in the HR chart [00:10:36] Speaker 02: So it would so I'm not sure about the in terms of your judicial assistant, but the here, Dr. Broadway, you know, claimed to have a directorship that does not exist. [00:10:51] Speaker 02: So I think that's a different. [00:10:53] Speaker 02: question but to answer your your honors hypothetical I think that's highly unlikely given the evidence in the record there is no evidence that that happened and whose fault is that I mean this is an apu claim right and so under Ninth Circuit law client have the burden to show that this testimony was knowingly false actually under Ninth Circuit law when there is credible evidence brought to the government's attention that their that their [00:11:22] Speaker 00: Witness testified falsely. [00:11:24] Speaker 02: They have to investigate. [00:11:26] Speaker 02: They have a duty to investigate. [00:11:28] Speaker 02: So if they thought that maybe that happened, Dr. Badre should have told them and they should have gotten information from that person. [00:11:36] Speaker 00: Prosecutors have lived the same life I've lived and they get information and they get a he said, he said situation. [00:11:42] Speaker 00: Are they required to believe one party or the other or could they just look at it and say, [00:11:47] Speaker 00: Badre says this unnamed program director gave me the title. [00:11:50] Speaker 00: Light says the title doesn't exist in the HR chart. [00:11:53] Speaker 00: Light doesn't actually dispute that it's possible the program director did give Badre the title. [00:11:59] Speaker 00: We don't know. [00:12:00] Speaker 00: That's what cross-examination is for. [00:12:02] Speaker 00: That's what discovery is for. [00:12:04] Speaker 02: But ultimately, what Dr. Badre provided to the prosecutors was not any information from... Let me ask you this. [00:12:14] Speaker 02: All right. [00:12:15] Speaker 04: Would you concede [00:12:17] Speaker 04: that your case is weaker because you had an opportunity to cross-examine on this information as opposed to that you discovered this a year later after the verdict had come in. [00:12:32] Speaker 02: Your Honor, I do not think our claim is weaker in as much as [00:12:35] Speaker 02: We were never able to put that information before. [00:12:38] Speaker 02: All right. [00:12:38] Speaker 04: But you did. [00:12:39] Speaker 04: But this is a different Napuhi claim than what you concede. [00:12:43] Speaker 04: It's a little bit different than a Napuhi claim where you don't even have the information while you are trying the case. [00:12:49] Speaker 04: You have no opportunity to cross-examine. [00:12:52] Speaker 02: It's factually different, but I don't think it makes a difference when it comes to the napu prongs. [00:12:56] Speaker 02: In this particular thing you're saying it's a distinction without a difference, but you are saying it's a difference It is a factual difference, but in this particular case it is a distinction without a difference But do you want to save any time for rebuttal yes your honor all right? [00:13:08] Speaker 03: Let me find out if my colleagues have any more questions before I let you step away I did want to just Just clarify so your briefs stopped short of saying that dr. Badre knowingly lied or committed perjury Is that still? [00:13:25] Speaker 03: You're not saying that he knowingly lied or perjured himself, correct? [00:13:28] Speaker 03: I didn't see that in your briefing. [00:13:30] Speaker 02: Your Honor, I don't know if he lied and the district court didn't make any findings, but under this court's precedent, it does not matter. [00:13:37] Speaker 02: Hayes versus Brown holds that NAPU by its terms addresses the presentation of false evidence, not just subordination of perjury. [00:13:45] Speaker 02: And many circuits, the Fourth Circuit, the Seventh Circuit, and the Third Circuit all agree. [00:13:49] Speaker 03: Right. [00:13:50] Speaker 03: But our circuit also says, honestly, mistaken recollection doesn't satisfy. [00:13:55] Speaker 03: Prong one of Napui. [00:13:56] Speaker 03: Let me ask you a second question. [00:13:57] Speaker 03: Your briefs don't argue that the government should have known about Dr. Badre's incorrect title prior to trial. [00:14:06] Speaker 03: I just want to confirm that is your position that you're arguing that the duty to investigate was triggered once you presented the Dr. Light email during the cross. [00:14:17] Speaker 02: That's correct your honor. [00:14:18] Speaker 02: We have no reason to think the prosecutors knew about it before okay. [00:14:21] Speaker 03: All right. [00:14:21] Speaker 04: Thank you All right, I will give you two minutes for rebuttal. [00:14:25] Speaker 01: Thank you May please the court Daniel zip on behalf the United States [00:14:35] Speaker 01: Your Honor, as you noted, the case law in the circuit is that honestly mistaken witness recollections do not rise to the level of actual falsity for Napuhi purposes. [00:14:44] Speaker 01: Dr. Badre's testimony in this case was based on this. [00:14:47] Speaker 03: But his appointment letter says that he can only use voluntary assistant clinical professor or a voluntary professor. [00:14:54] Speaker 03: So how could he? [00:14:55] Speaker 03: I'm just looking at his appointment letter. [00:14:58] Speaker 03: He never got anything in writing that I've seen that authorizes that title. [00:15:03] Speaker 01: That's correct. [00:15:04] Speaker 03: And why didn't the government know in advance that he didn't have that title? [00:15:08] Speaker 01: He provided us with a seven-page CV with literally hundreds of lines of qualification. [00:15:13] Speaker 01: We had no way to know or suspect that one or any of those was incorrect. [00:15:20] Speaker 03: Does the website for UCSD in any way confirm that title? [00:15:24] Speaker 01: I don't know. [00:15:26] Speaker 03: So you didn't check to see what the website confirmed? [00:15:31] Speaker 01: We didn't go through go through his CV and sort of [00:15:35] Speaker 01: double check all of his claims. [00:15:38] Speaker 01: He did testify that the director of residency training, as your honor noted, had given him this title. [00:15:44] Speaker 01: That appears to be a different person than the people that are listed in the email from Dr. Light. [00:15:49] Speaker 01: And more fundamentally, he testified what his role was, and there's no real dispute that he was the person in charge of giving all 14 lectures required for all residents to graduate in the field of forensic. [00:16:01] Speaker 03: And he testified he gave 30 lectures. [00:16:02] Speaker 03: That was also false, correct? [00:16:04] Speaker 01: in his cross he says I gave 30 lecture I think he was referring to his total not just in the forensics area I don't know that that was false [00:16:12] Speaker 03: He said in the last year, I've given 30 lectures in the psychiatry department at UCSD and it's inconsistent with the records you provided as to which classes he taught in that year. [00:16:23] Speaker 01: He said, I teach 14 forensics and then I teach other classes as asked by the faculty. [00:16:30] Speaker 03: You told the district court or your counselor or whomever in your office, there's no dispute that there's no one at UCSD with the title of director of forensic training. [00:16:39] Speaker 03: Why doesn't that concession [00:16:42] Speaker 03: meet prong one of Napue. [00:16:45] Speaker 01: I think the fact that Dr. Light or that the faculty says this position does not exist doesn't mean that Dr. Badre's testimony is actually false for the purpose of Napue. [00:17:00] Speaker 03: But if there's no one at UCSD with that title, how could that statement in any way be true? [00:17:07] Speaker 03: And you conceded, or your office conceded, there's no one at UCSD with the title of Director of Forensic Training. [00:17:13] Speaker 01: Sure. [00:17:13] Speaker 01: At the very least, even as an objective fact, that is not true. [00:17:17] Speaker 01: Certainly Dr. Badre did not knowingly present that false statement to the jury. [00:17:22] Speaker 01: He believed that that was his testimony. [00:17:24] Speaker 03: What evidence is there of that? [00:17:25] Speaker 03: I mean, you look at the appointment letter. [00:17:27] Speaker 03: It's very specific as to what his title is. [00:17:32] Speaker 01: The evidence of that is his testimony that he had been given that title by the director of residency training. [00:17:37] Speaker 01: His presentation of emails from Dr. Abrams that said that he was the prior director and he had told the person that took his position that he could use that title. [00:17:50] Speaker 01: and several letters referring to him using that title. [00:17:53] Speaker 01: And again, the fundamental fact that what he was doing was directing the training of forensics for all residents at the UCSD. [00:18:02] Speaker 04: So let's assume hypothetically that we find the testimony regarding Dr. Badri's title and position was false testimony. [00:18:09] Speaker 04: Assume it hypothetically. [00:18:11] Speaker 04: What is your best argument that the government did not know it was false testimony after seeing the email from UCSD? [00:18:19] Speaker 04: Stating that dr. Badre held no such position and that no such position existed sure your honor well first of all the the [00:18:27] Speaker 01: Defense never provided this information to the prosecutor until in the middle of cross-examination, they sort of flashed it up on the screen while cross-examining him. [00:18:37] Speaker 01: So that was the first that we had seen it. [00:18:39] Speaker 01: As Your Honor noted, at this point, it was sort of a he said, he said versus what Dr. Light said in an email, which we didn't receive and only had a chance to read on the screen. [00:18:50] Speaker 01: What follow-up investigation revealed other people at the university or associated with the university disagreed with, [00:18:57] Speaker 01: That universe of information doesn't rise to the level of knowledge in the way that the cases in this court, which typically involved a prosecutor who has a cooperation agreement with the witness, who knows firsthand that what that witness is saying about the cooperation agreement is false, that's fundamentally different from sort of factual issues that are based on inconsistencies or honest witness recollections that we have no way on the fly. [00:19:23] Speaker 03: You say there were multiple people at UCSD that confirmed [00:19:27] Speaker 03: But other than Dr. Abrams, with David Lehman, that's an email with no information as to who David Lehman is, what his relationship, if any, with UCSD is. [00:19:43] Speaker 03: The email has no, at all, identification of David Lehman's affiliations. [00:19:51] Speaker 01: That's correct. [00:19:52] Speaker 03: So how are we to assume that you said there are multiple people at UCSD that verified this title? [00:19:58] Speaker 03: Are you putting David Lehman in that category? [00:20:00] Speaker 01: No. [00:20:01] Speaker 01: I think I said multiple people associated with UCSD. [00:20:03] Speaker 03: And who is that other than Abrams? [00:20:05] Speaker 01: The director of residency training whose name we don't have. [00:20:10] Speaker 03: And there's nothing in here. [00:20:11] Speaker 03: There's no letter from that person. [00:20:14] Speaker 03: There's no email from that person saying it's pure speculation. [00:20:18] Speaker 01: Well, it's testimony from [00:20:20] Speaker 01: Dr. Badre. [00:20:21] Speaker 03: Right, but presumably, in the time that you got that letter, Dr. Badre was contacting a bunch of people to get this email from Dr. Abrams and Dr. Lehman. [00:20:32] Speaker 03: Presumably, he contacted people who were actually officially associated with UCSD during that time as well and could not get any verification of his title. [00:20:40] Speaker 03: Otherwise, I assume you would have provided it. [00:20:43] Speaker 01: Two to three hour period while the jury was deliberating. [00:20:45] Speaker 01: I don't know what he did during that time, but those are the emails that we provided That he provided to us during that time period but again all of that sort of at most creates a Disagreement or inconsistency about what his title was it's not the same sort of actual falsity of [00:21:03] Speaker 01: the government should have known about or did know about, certainly while the trial was going on. [00:21:09] Speaker 01: And even afterwards, once we received that information, we conducted additional investigation. [00:21:13] Speaker 01: We determined that there was a dispute over this and actually agreed that we would stipulate that the director of forensics training was not his title. [00:21:24] Speaker 01: Ultimately, the NPUI claims are fundamentally claims of prosecutorial misconduct, a sort of purposeful distortion of the truth [00:21:33] Speaker 00: Finding process and what the prosecutor go back to the first element of that claim you stipulated that no such title exists But have you stipulated away the first element of the nepoe claim or are you? [00:21:47] Speaker 00: Reserving the right reserving the argument that no we are reserving argument and we literally true in that this unnamed program director did allow him to use that title maybe even use it himself and [00:22:00] Speaker 00: And you just don't know whether that happened or not. [00:22:02] Speaker 00: It's not in the HR charts. [00:22:03] Speaker 00: It's not an official title. [00:22:05] Speaker 00: It might have been an unofficial title. [00:22:07] Speaker 00: And so you're just speeding whether there's falsity. [00:22:10] Speaker 01: That's correct. [00:22:11] Speaker 01: In fact, if you look in our supplemental excerpts of records, when we submitted our response to the motion for new trial, we specifically said we agreed to stipulate that there is no title. [00:22:20] Speaker 01: But we did not agree that he testified falsely, that Dr. Light and the administration may not have that title. [00:22:30] Speaker 01: Fundamentally believe that that was his title based on what he had been told by his predecessor You think that's what the district court meant by nomenclature issue. [00:22:38] Speaker 00: Is it an official title versus an unofficial title? [00:22:42] Speaker 01: Yes, I think that's what I Again not to circle back what his testimony about what his role was at the university is Undisputed and and the question is whether that qualifies him as a director or a volunteer lecturer in charge of all forensics training [00:22:59] Speaker 01: That is an issue of nomenclature, as the district court found, and it is not objectively false. [00:23:04] Speaker 01: Again, as the court found after hearing from Dr. Badre, seeing how he performed under cross-examination, this was not sort of a purposeful lie on his part. [00:23:13] Speaker 01: It was a dispute over nomenclature. [00:23:15] Speaker 04: Let me ask you this. [00:23:16] Speaker 04: I think in your brief you note this case was not a battle of the experts despite [00:23:21] Speaker 04: defense counsel framing it as one. [00:23:25] Speaker 04: Given that the mental health and mental state of Cuadrado was central to the defense, can you explain how it was not a battle of the experts case? [00:23:36] Speaker 04: What evidence outside of expert testimony did the government present to rebut Cuartado's insanity defense? [00:23:45] Speaker 01: Sure. [00:23:45] Speaker 01: The reason it wasn't a battle of the experts, first of all, our case in chief didn't involve any expert testimony. [00:23:50] Speaker 01: It only came up as an affirmative defense from the defense of insanity. [00:23:55] Speaker 01: And the reason it's not a battle of the experts is because what the experts ultimately testified to wasn't that far apart. [00:24:01] Speaker 01: Dr. Victoroff testified that Quadrado was suffering from a controlled substance use disorder and also testified that he was schizophrenic. [00:24:12] Speaker 01: Dr. Badre testified essentially that he was suffering from methamphetamine use disorder and was not schizophrenic. [00:24:19] Speaker 01: But ultimately what the jury had to decide was whether he was [00:24:24] Speaker 01: so mentally ill that he was unable to appreciate the nature and quality or wrongfulness of his conduct. [00:24:30] Speaker 01: Whether he was sort of schizophrenic or methamphetamine use induced schizophrenic, there's substantial evidence, as the court found, that he could appreciate the nature of his actions and the wrongfulness of his acts. [00:24:46] Speaker 04: What are the facts that would make this not affecting this in terms of, because I believe [00:24:54] Speaker 04: This is the postal workers gone mad type of thing. [00:24:58] Speaker 04: He was a postal worker, right? [00:25:00] Speaker 04: Yes. [00:25:01] Speaker 04: And the person that was injured and got his head sliced was also working for the post office? [00:25:07] Speaker 04: Right. [00:25:08] Speaker 04: So these people knew each other? [00:25:09] Speaker 01: Yes. [00:25:10] Speaker 04: So aside from what any of the doctors said, what was the evidence about what happened here? [00:25:17] Speaker 01: The evidence was videotape from the 7-11 showing sort of an argument between supervisor and supervisee. [00:25:24] Speaker 01: Evidence of him throwing Mountain Dews at the window of the car of the supervisor and then shoving him into the car. [00:25:31] Speaker 01: Evidence of him driving back to the facility, getting out of his truck, going to his personal van, coming back to the truck. [00:25:37] Speaker 01: And then when the supervisors asked him to return his badge, sort of coming out of the truck, pushing one, [00:25:45] Speaker 01: stabbing one, the other in the head, and then critically leaving the scene then, pulling out to the gate, backing up so it opened more quickly, then giving an obscene gesture with his hand to the camera on the way out, and then ultimately disposing of the knife as he drove away. [00:26:03] Speaker 01: There's also the evidence that when he was arrested days later, [00:26:06] Speaker 01: He gave a post-arrest statement in which he admitted that he felt bad about what happened. [00:26:13] Speaker 01: But when officers asked him if he would sign a written apology to his victim, he said, only if you drop the charges. [00:26:19] Speaker 01: So all of that evidence, wholly independent of any experts on either side, show that he was aware of what he was doing and that he was able to appreciate the quality and wrongfulness of his conduct. [00:26:30] Speaker 03: I want to go back to the materiality, the third prong, on Napui. [00:26:34] Speaker 03: Separate from what was miss dr. Badre's exact role function title at UCSD why wouldn't the You know dispute about whether he's the director of forensic training at UCSD be material to his credibility is this someone who lies is this someone who shades where it shades the truth when it's helpful to himself when he thinks it's a [00:27:02] Speaker 03: going to promote his efforts as an expert witness, why would that be material? [00:27:09] Speaker 03: Going just straight to credibility, is this a truthful, honest person? [00:27:14] Speaker 01: Sure. [00:27:16] Speaker 03: Who really squares the corners or not? [00:27:19] Speaker 01: The main answer to that is that the defense had this information and they cross-examined him about it. [00:27:24] Speaker 01: And he admitted in a way that he hadn't admitted on direct examination that he was only a voluntary professor, that he only worked less than part-time. [00:27:33] Speaker 03: But he didn't concede that he wasn't the director of forensic training. [00:27:36] Speaker 01: Right. [00:27:37] Speaker 03: He didn't concede that. [00:27:38] Speaker 03: The letter didn't come in. [00:27:40] Speaker 03: Your office made a successful hearsay objection, which I actually think is correct, that email from Dr. Light is hearsay. [00:27:47] Speaker 03: But he didn't actually concede that he was not, I mean, the jury never knew that he was not the director of forensic training, right? [00:27:57] Speaker 03: Because the clarification was never made during their deliberations. [00:28:00] Speaker 03: So the jury assumed he was the director of forensic training when they rendered their verdict. [00:28:08] Speaker 01: He was cross-examined on the issue and admitted his much more limited role. [00:28:13] Speaker 01: They used that in closing and said, why did he sort of puff up his title at the beginning? [00:28:18] Speaker 01: Even if at that point the court had stopped all proceedings, it's still sort of an open question as to whether he honestly was lying when he said that or that he believed that. [00:28:27] Speaker 03: But it's not an open question that there's no director of forensic training at UCSD. [00:28:31] Speaker 03: You've conceded that. [00:28:32] Speaker 01: Yes. [00:28:33] Speaker 01: So to your point, I had at that point [00:28:36] Speaker 01: The United States paused all proceedings, entered a stipulation, conducted an investigation, and the jury was presented with a cross-examination that was done by the defense and a stipulation that his title is not Director of Forensics Training. [00:28:50] Speaker 01: Ultimately, that would not change his overall credibility in a way that would undermine all of the evidence I just outlined that has nothing to do with the [00:29:01] Speaker 03: Expert testimony or the the simple fact that the jury heard a stipulation by the United States government That their key witness is not what he says he is That that would not be material to assessing that witnesses credibility material in the sense that that it would affect the outcome of the trial and [00:29:21] Speaker 01: Yes, as the district court said, I don't find for a second, given all the evidence here, that this dispute over whether he was the director or some other title, when all of the evidence about what he actually did was the same, wouldn't for a second make a difference in the jury's outcome. [00:29:40] Speaker 01: That they would consider the fact that Mr. Quadrado was unable to appreciate the nature and quantity and wrongfulness of his conduct [00:29:48] Speaker 01: based on this one dispute over the directorship. [00:29:54] Speaker 01: Whether it's material in the sense that it would be one more thing for the defense to use, it's certainly not material in the legal sense of that it would have a reasonable possibility of changing the outcome of trial, given all of the evidence that this defendant was well aware of what he was doing and was aware of the wrongfulness of his conduct. [00:30:11] Speaker 04: All right. [00:30:12] Speaker 04: Do either of you have any additional questions? [00:30:13] Speaker 04: No, thank you. [00:30:14] Speaker 04: All right. [00:30:14] Speaker 04: We've used your time. [00:30:16] Speaker 04: Thank you. [00:30:17] Speaker 04: All right, you have two minutes for rebuttal. [00:30:19] Speaker 04: Sure. [00:30:20] Speaker 02: And I'll start with where the government or pick up where the government left off, which is with materiality. [00:30:27] Speaker 02: I think Judge Koh really hit the nail on the head with saying that this not only provided an extra boost to Dr. Badre's resume, but knowing that he testified falsely would have really impacted his credibility. [00:30:39] Speaker 00: Do you have any case saying that's the focus of the materiality prong is knowing it's not [00:30:45] Speaker 00: The materiality of the substantive content of the testimony, but just the materiality of the fact that a witness testified falsely. [00:30:53] Speaker 00: And wouldn't that just collapse the second prong into the first prong? [00:30:57] Speaker 02: So, Your Honor, in NAPU, the falsehood went only to credibility. [00:31:02] Speaker 02: So it is black-letter law that credibility, a credibility issue based on false testimony can satisfy, materiality can satisfy. [00:31:10] Speaker 00: When would a jury ever not find it material to know that a witness lied? [00:31:14] Speaker 02: So I mean I think that's a I mean that's a great question if there is false testimony given it is a very serious error and Most of the time reversal is the proper that's what I mean by doesn't it collapse the two tests if you just say any time a witness lies That's material because it affects credibility Well, I don't think it collapses. [00:31:36] Speaker 04: I mean I was a trial judge. [00:31:37] Speaker 04: I felt like I probably heard lies every single day I went to court Okay, but did they affect the outcome yeah? [00:31:44] Speaker 04: So yeah, I don't see any case that says because you can identify something that was a lie that therefore you've automatically that it's structural error and you've automatically satisfied the second prong and have that type of case. [00:31:59] Speaker 02: Oh, no. [00:31:59] Speaker 02: And that's not our argument. [00:32:00] Speaker 02: We just the materiality prong for an approve is so low is the one of the lowest materiality prongs in law. [00:32:09] Speaker 04: That if a witness testifies falsely there is a strong chance that you can meet that third materiality prong and you could hear These people know each other you've got an argument going on you've got you have him getting rid of the evidence You have him leaving you have him doing an obscene gesture as he goes out That's pretty strong evidence that he knew And he wouldn't won't stay there [00:32:38] Speaker 04: And then the comments that he made later, you've got to push a rock uphill there to say that you would have gotten a different result. [00:32:47] Speaker 02: Well, Your Honor, if you look at all of that evidence from the defense point of view, from the defense arguments [00:32:53] Speaker 02: All of it makes sense with the defense theory because, for example, we actually provided evidence that he did not make an obscene gesture. [00:33:00] Speaker 02: He was waving at a driver. [00:33:01] Speaker 04: You know, people don't always, juries don't always agree with experts that people don't know what they're doing. [00:33:06] Speaker 04: They look very seriously at the conduct of what the person did as opposed to speculating as to what they might have known or what they think or this, that, and the other. [00:33:16] Speaker 04: And you've got some strong evidence against you that says he knew exactly what he was doing. [00:33:21] Speaker 04: Does he enjoy good mental health? [00:33:24] Speaker 04: Probably not. [00:33:25] Speaker 04: I would like to think that a good person in good mental health would not have done what your client did, but by the same token, did he understand the nature of his acts? [00:33:34] Speaker 04: Did he understand them to be wrong? [00:33:36] Speaker 04: That's a tough rock to push uphill. [00:33:40] Speaker 02: Yes, Your Honor, and that's why I'm trying to explain. [00:33:43] Speaker 02: We had evidence that would show that the government's narrative was wrong and ours was right. [00:33:48] Speaker 02: For example, the supposed obscene gesture [00:33:51] Speaker 02: We brought a witness to court to say, actually, Mr. Quadrado was just waving at another driver. [00:33:57] Speaker 02: The disposal of the knife, as Your Honor said, the reason why we think that that would make someone guilty is because they're trying to get rid of the evidence. [00:34:05] Speaker 02: But here, that doesn't make any sense because multiple witnesses saw Mr. Quadrado commit the assault. [00:34:11] Speaker 02: So getting rid of the knife wouldn't help. [00:34:13] Speaker 02: Plus, he didn't try to cover up the crime. [00:34:16] Speaker 02: He immediately confessed as soon as he was picked up. [00:34:19] Speaker 02: Or what about leaving the scene? [00:34:21] Speaker 04: Well, when you confess and you say you know what you did, that's a double-edged sword for you. [00:34:26] Speaker 04: That means you actually do appreciate what you did. [00:34:29] Speaker 02: Yes, of course, he does appreciate what he did. [00:34:32] Speaker 02: But he told the police post-arrest, I did it because I thought they were going to kill me. [00:34:37] Speaker 02: And that's where the wrongfulness of his actions becomes called into question, because he did not know what he was doing was wrong because he thought he was going to be killed. [00:34:47] Speaker 02: And that comes from his schizophrenic delusions. [00:34:51] Speaker 02: All right, let me find out. [00:34:52] Speaker 03: I have one last question. [00:34:53] Speaker 03: Go ahead, Jessica. [00:34:55] Speaker 03: You agree that forensic psychiatrists can testify about malingering, about exaggeration of symptoms. [00:35:01] Speaker 03: So your only dispute with Dr. Badre's testimony, I mean, put aside the title issue, seems to be that he used the word credible and was using that term. [00:35:14] Speaker 03: But you agree that he could talk about malingering, he could form an expert opinion on exaggeration. [00:35:21] Speaker 02: I agree that he could have said things like, [00:35:25] Speaker 02: You know, he scored a certain test on this malingering test. [00:35:32] Speaker 02: But then he can't say, yes, I make a finding that he's malingering? [00:35:36] Speaker 02: He can say, I think it's probably OK for him to say, I make a finding that he's malingering, or that he was exaggerating his symptoms is the actual finding that he made. [00:35:45] Speaker 02: But Dr. Badre went further than that and repeatedly testified that Mr. Quadrado was not credible. [00:35:50] Speaker 02: And there were two things that made that testimony. [00:35:53] Speaker 03: But where is the line there, right? [00:35:55] Speaker 03: So I'd say you are repeatedly exaggerating your symptoms. [00:35:59] Speaker 03: Am I not challenging your credibility inherently? [00:36:01] Speaker 02: Well, I do think this court's this court's case law draws draws that line and just simply says you can talk about things that are inconsistent and might indirectly [00:36:11] Speaker 02: bear on credibility, but you can't directly testify to credibility. [00:36:16] Speaker 02: And Dr. Badre did that again and again. [00:36:17] Speaker 02: That mattered for two reasons. [00:36:20] Speaker 02: One, because Dr. Badre made clear that he had not provided the jury with all of the reasons why he thought Mr. Quadrado was not credible. [00:36:29] Speaker 02: He said, I made a long list of things he said I did not think were credible. [00:36:33] Speaker 02: I spoke about some of them today. [00:36:35] Speaker 02: Or as far as when he exaggerated, I'm telling you now, I wrote in my report there are some things that he did that were not credible. [00:36:41] Speaker 02: Those were some of them. [00:36:43] Speaker 02: So he wasn't just leaving it to the jury to make their own credibility determination. [00:36:47] Speaker 02: He was telling them, I know more than you, and I think he's not credible. [00:36:51] Speaker 02: Additionally, Dr. Badre. [00:36:53] Speaker 02: Do you have it? [00:36:53] Speaker 04: No, thank you. [00:36:54] Speaker 04: We've been generous with time. [00:36:56] Speaker 04: Thank you both for your argument. [00:36:57] Speaker 04: This matter will stand submitted.