[00:00:00] Speaker 04:
The first case on calendar for argument today is United States versus Diaz.

[00:00:10] Speaker 04:
Counsel for Appellate, please proceed.

[00:00:12] Speaker 01:
Thank you, Your Honor.

[00:00:14] Speaker 01:
Ben Coleman for Appellant, Ian Diaz.

[00:00:18] Speaker 01:
My plan was to start with the lead issue in the brief regarding the intent requirement for the stalking statute, and then if I have time to address the 1519 count.

[00:00:30] Speaker 01:
beginning with that lead issue, it's essentially our position that this court should follow the analysis of the Third Circuit and its 2022 opinion in Yang.

[00:00:41] Speaker 01:
And I think that that opinion was quite clairvoyant because the Third Circuit's mode of analysis was essentially endorsed by the US Supreme Court the following year in 2023 in two cases, Hanson and Counterman.

[00:00:57] Speaker 02:
Now, so let me ask you this.

[00:00:59] Speaker 02:
As you know, Young is a Third Circuit case.

[00:01:02] Speaker 02:
And with all due respect to the Third Circuit, Ossinger is our case.

[00:01:07] Speaker 04:
And I wrote it.

[00:01:08] Speaker 02:
And there you go.

[00:01:10] Speaker 02:
There you go.

[00:01:11] Speaker 02:
And that preceded Young by, what, how much like six years or more, eight years.

[00:01:18] Speaker 02:
Why are we not bound by Ossinger?

[00:01:19] Speaker 02:
Why would we be looking to Young in this case?

[00:01:22] Speaker 01:
But I mean, when I saw that this calendar was at 930, I had a feeling Judge Rawlinson was on the panel, that she addressed, that she wrote Ossinger.

[00:01:32] Speaker 04:
Look, I think- The luck of the draw was to come.

[00:01:36] Speaker 00:
Yeah, right.

[00:01:36] Speaker 01:
Judge Rawlinson, I think you were absolutely correct in Ossinger.

[00:01:39] Speaker 01:
The statute is not unconstitutionally vague.

[00:01:42] Speaker 01:
That was the issue that was raised in Ossinger, was the statute facially unconstitutional.

[00:01:48] Speaker 01:
And Judge Rawlinson was absolutely right.

[00:01:50] Speaker 01:
It's not.

[00:01:51] Speaker 01:
The question in this case is, what does the intent requirement mean, the intent to intimidate or harass?

[00:02:00] Speaker 01:
And that is not an issue that Judge Rawlinson or the panel addressed in Ossinger.

[00:02:05] Speaker 01:
Of course, we also have, you know, a good 15 years or so, you know, or 10 to 15 years water under the bridge with a lot of cases that have come out since then, like Yong, a circus.

[00:02:17] Speaker 03:
Why do you think that?

[00:02:19] Speaker 03:
those are not just everyday terms that any reasonable juror would understand.

[00:02:26] Speaker 01:
Well, I think that Yang and Hanson itself make that clear that

[00:02:32] Speaker 01:
An ordinary person, if you use the word intimidate, for example, they can think of it in a lot of different ways, not just an intent to instill fear of violence, of physical injury or death.

[00:02:44] Speaker 01:
I mean, you could say I was intimidated by the intellect of the judges on the panel and their harsh questioning.

[00:02:50] Speaker 01:
I mean, you can be intimidated in a lot of different ways.

[00:02:53] Speaker 01:
I felt financially intimidated or whatever it may be.

[00:02:57] Speaker 03:
But intimidate in this context, and I think this is what Hanson makes clear, is you have to- I'm still hoping for the lawyer someday who feels intimidated by my questions, but in my 29 years on the bench, I've never encountered that lawyer.

[00:03:11] Speaker 01:
That's not what I've heard, but I think that you can easily see intimidating being used in a lot of different ways.

[00:03:19] Speaker 01:
And a lot of the opinions Young, the A circuit case, Srenorowski, they make that clear that if you look at words like intimidate and harass in an ordinary broad sense, they're over broad.

[00:03:32] Speaker 01:
We need to look at those words narrowly.

[00:03:36] Speaker 01:
And we're asking- Well, counsel, is that right?

[00:03:38] Speaker 02:
In Dubin, the Supreme Court in 23 talked about that we look at words in the particular context that it's being used.

[00:03:48] Speaker 04:
Right.

[00:03:49] Speaker 02:
And I'm just not persuaded that intimidating in this context is all that difficult to understand.

[00:03:57] Speaker 02:
It's pretty straightforward, is it not?

[00:04:00] Speaker 01:
Well, I do agree the context and I think Dubin talks about the title of the statute, right?

[00:04:04] Speaker 01:
And here the title of the statute is stalking.

[00:04:07] Speaker 01:
And what that is getting at is violence or fear of violence, creating fear of violence, creating fear that you may be injured.

[00:04:16] Speaker 01:
And we can talk about harass in a second, but for intimidation, the context itself makes it clear, given the stocking title of the statute, that it's focused at violence and fear of violence.

[00:04:32] Speaker 01:
And so I think the context and then, of course, you've got the background First Amendment principles of countermen that these stalking statutes and what was at issue and countermen was Colorado's stalking statute that they have to be read in the context of true threats jurisprudence and true threat jurisprudence requires

[00:04:52] Speaker 01:
and intend to instill fear of bodily harm or death, that type of mind.

[00:04:57] Speaker 04:
Council, why do they have to be read in the context of truth threats, jurisprudence?

[00:05:03] Speaker 04:
What case says that the elements of the stalking statute must be read in the context of truth threats, President?

[00:05:13] Speaker 01:
I think both Counterman and Young take that approach.

[00:05:16] Speaker 01:
that when you're looking at a stalking statute, that's the Supreme Court.

[00:05:23] Speaker 01:
What they looked at as the First Amendment exception that applied to that stalking statute was true threats.

[00:05:28] Speaker 01:
That was the context or the exception that the Supreme Court analyzed it on.

[00:05:33] Speaker 01:
But we don't have just true threats jurisprudence.

[00:05:37] Speaker 01:
We have the title of the statute.

[00:05:39] Speaker 01:
This court also, and we cited a case called SELFA, and for many years in other federal criminal statutes that use the word intimidate to find it the exact same way that the Third Circuit did in Young, which is an intent to instill fear of bodily injury or death.

[00:05:55] Speaker 01:
And frankly, in the government's brief, I don't even see them really attacking the Young definition.

[00:06:00] Speaker 01:
Maybe we'll hear something differently today, but they haven't really gone after the Young definition as being incorrect.

[00:06:07] Speaker 02:
Yeah, so can you help me with this?

[00:06:09] Speaker 02:
This obviously is a very troubling case.

[00:06:13] Speaker 02:
And your client had occupied a position of real prominence as a marshal, understood the system very well.

[00:06:21] Speaker 02:
What role, if any, in our analysis of context,

[00:06:25] Speaker 02:
Should we, if you will, how should we view your client's background in our understanding of the context of the statute, if at all?

[00:06:37] Speaker 01:
Well, look, I acknowledge that these are very serious charges.

[00:06:43] Speaker 01:
The conduct that's alleged is very serious.

[00:06:45] Speaker 01:
No one's walking away from that.

[00:06:46] Speaker 01:
And I'm not arguing that the conduct that's alleged is not criminal.

[00:06:50] Speaker 01:
It is criminal.

[00:06:51] Speaker 01:
There are lots of statutes, state statutes and other statutes, that prohibit this alleged conduct.

[00:06:56] Speaker 01:
But the question here is, did he engage in stalking?

[00:07:01] Speaker 01:
Did he violate the federal stalking statute?

[00:07:04] Speaker 01:
And the government just charged the wrong statute.

[00:07:06] Speaker 01:
He did not stalk the victim.

[00:07:08] Speaker 01:
And his background as a marshal, I don't think, affects that.

[00:07:11] Speaker 01:
The statute has to be read consistently.

[00:07:14] Speaker 01:
You don't look at the facts of the case and change.

[00:07:16] Speaker 01:
And we cited lots of these cases in the reply brief.

[00:07:19] Speaker 01:
You don't look at the statute and interpret it differently depending on the defendant.

[00:07:23] Speaker 02:
What I'm trying to understand is this.

[00:07:26] Speaker 02:
Let's just say your client was presumably as a marshal familiar with these statutes, was familiar with the intent required.

[00:07:37] Speaker 02:
He seemed, if the allegations are correct, he seemed to have very carefully plotted out a lot of close, if you will,

[00:07:50] Speaker 02:
serious crimes.

[00:07:52] Speaker 02:
What role does this play?

[00:07:54] Speaker 02:
I mean, the idea that what he was doing if alleged, if the allegations are correct, was not intimidating is farcical to me.

[00:08:01] Speaker 02:
I don't understand where you can get there.

[00:08:04] Speaker 01:
Well, I don't think that he intended or did the government present any evidence that the victim said that she felt fear for her, that she was gonna suffer bodily injury or death.

[00:08:14] Speaker 01:
He intended to frame her.

[00:08:16] Speaker 01:
That was the allegation in the indictment that he intended to frame her.

[00:08:20] Speaker 01:
Not that he intended for her to fear physical injury or death.

[00:08:24] Speaker 01:
And that's what the statute that they charged me as that requirement.

[00:08:29] Speaker 01:
And again,

[00:08:31] Speaker 01:
The conduct is criminal.

[00:08:32] Speaker 01:
It's just not a violation of the stalking statute.

[00:08:34] Speaker 01:
It's not stalking.

[00:08:36] Speaker 01:
It's not what it is.

[00:08:38] Speaker 04:
Council, do you argue that the conduct in this case implicated your client's First Amendment rights?

[00:08:50] Speaker 01:
No, we're not making a First Amendment challenge.

[00:08:52] Speaker 04:
Okay, so why do you think that countermen applies?

[00:08:55] Speaker 04:
Because that was in the First Amendment context, and that's why the true threats jurisprudence was included in that case.

[00:09:02] Speaker 04:
So why would countermen apply if the First Amendment rights are not an issue in this case?

[00:09:08] Speaker 01:
Our claim is a statutory construction claim, and that the statute has to be read.

[00:09:15] Speaker 01:
There are lots of reasons to read the statute narrowly, as we've suggested.

[00:09:19] Speaker 01:
One is the title of the statute.

[00:09:21] Speaker 01:
One is the no-sitter principle or the principle that words are read in context of the other words in the statute.

[00:09:27] Speaker 01:
There are all these

[00:09:28] Speaker 01:
reasons.

[00:09:29] Speaker 01:
And one of the statutory construction claims that we have is constitutional doubt, that you have to read the statute narrowly so that the statute is not rendered potentially in violation of the First Amendment.

[00:09:42] Speaker 04:
Right, but that's why I asked you that question.

[00:09:46] Speaker 04:
there is no first amendment implicate there's no first amendment implication here because we're not talking about speech we're talking about conduct and that's why i'm not necessarily persuaded that counterman helps you because this is not a true threats case right well let's go back to young the third circus analysis what the third well but okay character but young is not binding on this counterman we would have to follow if it um

[00:10:14] Speaker 04:
if it met the facts of this case.

[00:10:16] Speaker 04:
So I'm just interested in counter right now and why that is not persuasive in terms of how we decide this case.

[00:10:25] Speaker 04:
So do you agree that counterman is factually and legally distinguishable from the facts of this case?

[00:10:31] Speaker 01:
Well, I think it's factually distinguishable.

[00:10:34] Speaker 01:
But what I think the principle of counter.

[00:10:36] Speaker 01:
Legally distinguishable if the first amendment is not implicated.

[00:10:41] Speaker 01:
Well, I think what counterman says why I don't think it's legally distinguishable is counterman says that stalking statutes counterman interpreted a stalking statute.

[00:10:49] Speaker 04:
But it was a true threat of the First Amendment true threat stalking case, which is different than this case, which is a conduct stalking case.

[00:11:00] Speaker 01:
Well, I mean, I think that arguably the government and countermen would have argued that it was conduct.

[00:11:08] Speaker 01:
It wasn't just true threats, that it was also conduct.

[00:11:11] Speaker 01:
I think the point of countermen is that stalking statutes, if they're going to comply with the First Amendment, they have to have a subjective intent requirement to engage in a true threat or to instill fear of violence.

[00:11:25] Speaker 01:
That's what countermen holds.

[00:11:27] Speaker 03:
Yeah, I wanted to go back in that regard to you.

[00:11:30] Speaker 03:
You said you were going to offer some thoughts about Harris as opposed to intimidate.

[00:11:39] Speaker 03:
What did you want to say about Harris?

[00:11:41] Speaker 01:
Right.

[00:11:42] Speaker 01:
On Harris, I mean, the Third Circuit interprets harass and intimidate very similarly.

[00:11:50] Speaker 01:
And it seems to also indicate that there needs to be some form of an intent to instill fear or some form of violence.

[00:11:56] Speaker 01:
Our position is that we think that's absolutely correct.

[00:11:59] Speaker 01:
But if the court thinks that there needs to be at least some, you can't have the words meaning the exact same thing because we presume that Congress would not use the words exactly in the same manner, that it can include sexual harassment because that's akin to, that's what most people think of when they think of harass, particularly in a narrow manner.

[00:12:20] Speaker 01:
And that's akin to the violence that the statute is designed

[00:12:25] Speaker 01:
to attack or to prohibit.

[00:12:27] Speaker 03:
Well, so, aren't you saying, aren't you admitting that the statute then even as contemplated did not apply just to violence?

[00:12:38] Speaker 01:
Well, I think it's debatable whether, you know, the Supreme Court hasn't said that sexual harassment would comply with a counterman-type approach.

[00:12:48] Speaker 01:
But I think it's got a much better chance, if you read the word in that manner, it has a much better chance of satisfying countermen, that sexual harassment is similar to violence.

[00:12:59] Speaker 01:
It's, you know, it's unwanted sexual advances that, you know, cause people to fear for their, you know, personal safety.

[00:13:08] Speaker 03:
unwanted sexual advances that would be achieved through intimidation?

[00:13:16] Speaker 03:
Non-violent intimidation?

[00:13:20] Speaker 01:
Well, in an ordinary sense, you may be able to do that.

[00:13:23] Speaker 01:
I don't think that's what the statute contemplates.

[00:13:25] Speaker 03:
Is there anything in the legislative history to show that says that?

[00:13:32] Speaker 01:
No, I don't think the government has relied on the legislative history at all either.

[00:13:36] Speaker 01:
I mean, I think the Supreme Court has sort of walked away a little bit from legislative history, but I think the title of the statute, stalking, that, you know, I come back to this is a statute that targets stalking.

[00:13:47] Speaker 03:
Isn't there a bunch of cases out there that say that the title of the statute is a very weak basis for interpreting a statute?

[00:13:59] Speaker 01:
To the extent that they're out there, they've been overruled by Dubin.

[00:14:02] Speaker 01:
I mean, Dubin in 2023, that was probably the lead rationale for the Supreme Court's interpretation, was the title of the statute.

[00:14:11] Speaker 01:
I see I've got about a minute left.

[00:14:14] Speaker 01:
I did want to get to the 15-19 count, but I guess I'll just save that for rebuttal.

[00:14:19] Speaker 04:
All right.

[00:14:20] Speaker 04:
Thank you, counsel.

[00:14:21] Speaker 01:
Thank you.

[00:14:24] Speaker 04:
We'll hear from the government.

[00:14:28] Speaker 00:
Good morning, Your Honors.

[00:14:30] Speaker 00:
Paul Crane on behalf of the United States.

[00:14:32] Speaker 00:
Unless the court would prefer otherwise, I'll also start with the mens rea for the Section 2261A offense.

[00:14:38] Speaker 00:
And where I'd like to begin is emphasizing Judge Robinson's point.

[00:14:43] Speaker 00:
that this statute is targeting conduct, not speech.

[00:14:47] Speaker 00:
That was a point emphasized in the Oesinger opinion.

[00:14:50] Speaker 00:
That is one of the main reasons it puts it outside the true threat, counterman type context.

[00:14:57] Speaker 00:
Footnote four of the Oesinger opinion also makes that clear that because this statute is targeting

[00:15:03] Speaker 00:
conduct, not speech, it doesn't have to meet the true threat definition.

[00:15:09] Speaker 00:
And we think, even though it was primarily addressing vagueness, it also addressed First Amendment concerns and did an as-applied First Amendment analysis.

[00:15:18] Speaker 00:
And we think its discussion there about the plain and ordinary meanings of the terms for harass, for example, is still good law in this circuit.

[00:15:31] Speaker 00:
With respect to Young, the government

[00:15:33] Speaker 00:
You know, uh, does not think young is correct.

[00:15:37] Speaker 00:
Now we're outside the third circuit.

[00:15:40] Speaker 00:
So obviously it's not binding, but the key error that the young court made is, and this is on page 77 and the 37 fourth, um, uh, federal reporter of that opinion is the young court says that this is about target rejects the notion that it's targeting conduct and not speech.

[00:16:01] Speaker 00:
And then when it goes down that path, when it's talking about the intent that's required, it loses sight that this intent to intimidate or intent to harass is about the requisite mens rea, not the requisite actus reus or harm that must be caused under this statute.

[00:16:19] Speaker 00:
The analysis there looks much more akin to treating the statute as if it was a harassment statute or an intimidation statute.

[00:16:28] Speaker 00:
as opposed to, was it done with the intent to intimidate or intent to harass?

[00:16:35] Speaker 00:
And every other court of appeals, including this court in Oslinger, we think properly analyzed it along that way.

[00:16:43] Speaker 00:
And as my friend on our side said, there is no sort of direct First Amendment argument here.

[00:16:48] Speaker 00:
If there were legitimate First Amendment concerns, as the court in Oesinger did, and as most other courts of appeals have done, that can be addressed through as applied challenges, as opposed to taking this artificially constitutional avoidance narrow approach that the Third Circuit felt it needed to do in Young.

[00:17:12] Speaker 00:
There aren't any other additional questions about young or counter men.

[00:17:17] Speaker 00:
One sort of additional point that

[00:17:20] Speaker 00:
I would like to make sure to emphasize is that this statute has several additional requirements beyond just the requisite criminal intent of harass and intimidation, most notably that the use of the interstate facility, interstate commerce facility has to be used to engage in a course of conduct

[00:17:47] Speaker 00:
which as the statute defines is a pattern of conduct, composing of two or more acts, evidencing a continuity of purpose.

[00:17:55] Speaker 00:
And it must cause what was specifically alleged in this case, substantial emotional distress.

[00:18:02] Speaker 00:
So some of the most sort of potentially problematic hypotheticals, I think could be dealt with both by recognizing what the statute requires, which is I think a fairly significant requirement

[00:18:16] Speaker 00:
which the jury found here and the requisite criminal intent of intent to intimidate or intent to harass.

[00:18:28] Speaker 00:
I'm happy to address any other questions the panel might have about the obstruction of justice or perjury count.

[00:18:34] Speaker 03:
On the obstruction of justice, it wasn't totally clear to me what the government's affirmative evidence of intent was on that count.

[00:18:48] Speaker 00:
Yes, your honor.

[00:18:50] Speaker 00:
I'm sorry, I didn't mean to interrupt you.

[00:18:52] Speaker 00:
No, go ahead.

[00:18:54] Speaker 00:
So with respect to the affirmative evidence about there being an intent to impede or influence, the main defense at trial was twofold, which is slightly different than the defense presented on appeal.

[00:19:08] Speaker 00:
First, Mr. Diaz said that he was not aware

[00:19:11] Speaker 00:
that there was this internal investigation through the US Marshals Service.

[00:19:15] Speaker 00:
The affirmative evidence at trial that we proved and that the jury must have found is that he was aware, including by reaching out to, he learned about the investigation from one of the local Anaheim Police Department detectives, and then he reached out to the US Marshals Service

[00:19:37] Speaker 00:
Internal investigator trying to gather more information and reach the dead end.

[00:19:42] Speaker 00:
And so that was the primary evidence indicating that he was aware of this US Marshals internal investigation.

[00:19:49] Speaker 00:
The other main defense is saying what he said at trial.

[00:19:54] Speaker 00:
at least, was that he wasn't trying to obstruct when he was doing this, but rather he was just sort of cleaning up his email systems and he wanted to maintain his privacy.

[00:20:07] Speaker 00:
And by that point in time, when he deleted his personal Gmail account in December, the suspicion had started to move away from the victim, Michelle, and more to him and his co-conspirator, Ms.

[00:20:19] Speaker 00:
Connell.

[00:20:20] Speaker 03:
My question really is, that's why I phrased it in terms of

[00:20:24] Speaker 03:
affirmative evidence.

[00:20:26] Speaker 03:
I understand the answers you gave to his defenses but of course the government bears the burden and the what was the is it all it may be all circumstantial that's sufficient but I just wondered whether there's any more anything more explicit on the issue of intent other than just the if you will the

[00:20:50] Speaker 03:
the awareness and the timing, which is what I take it the government is primarily relying on.

[00:20:57] Speaker 00:
I think that's very honor.

[00:20:58] Speaker 00:
And I don't, I think it was, I think there was lots of circumstantial evidence, including his acts of concealment beyond just deleting this personal email account, which was also presented to the jury of deleting other pieces of data.

[00:21:13] Speaker 00:
And later on the perjury itself is trying, I think there's a long,

[00:21:16] Speaker 00:
track record of trying to conceal his behavior.

[00:21:21] Speaker 00:
But then I think then the jury, especially on a sufficiency of the evidence review, a rational jury could determine that there was the requisite criminal intent based on all of that circumstantial evidence.

[00:21:36] Speaker 00:
Did that answer your question, Your Honor?

[00:21:43] Speaker 00:
There's other questions about the obstruction count or the perjury count.

[00:21:49] Speaker 00:
The government's happy to rest on its briefing and submits that the judgment should be affirmed in full.

[00:21:55] Speaker 04:
All right.

[00:21:55] Speaker 04:
Thank you, counsel.

[00:21:57] Speaker 00:
Thank you, your honors.

[00:22:01] Speaker 01:
On the obstruction count, then I'll try to loop back to the stalking charge.

[00:22:06] Speaker 01:
The government's own evidence

[00:22:09] Speaker 01:
was that the local detective executed a search warrant on the email account that's the subject of the obstruction count and mailed a notice of the execution of that warrant to Mr. Diaz months before he closed the account.

[00:22:28] Speaker 01:
So Mr. Diaz, as far as his intent,

[00:22:32] Speaker 01:
He knew that they had already executed a search warrant on the email account.

[00:22:37] Speaker 01:
And that detective testified and did not dispute any of that evidence.

[00:22:42] Speaker 01:
So he could not possibly have had the intent to obstruct justice when he knew that they already had executed a search warrant on the account.

[00:22:52] Speaker 01:
They can't even prove any obstruction because they executed a warrant on the account and got the emails.

[00:22:57] Speaker 01:
The local detective got them.

[00:22:59] Speaker 01:
And he handed all his information over to the federal investigators.

[00:23:01] Speaker 04:
So there was no... Is that in the record that the local

[00:23:08] Speaker 04:
law enforcement got the records and handed them over?

[00:23:11] Speaker 04:
Where is that in the record?

[00:23:12] Speaker 01:
Yes, when the local detective testified, and we cited it in the brief, I don't have the exact ER site, but it's in the brief, he testified that he handed everything over to the marshals.

[00:23:23] Speaker 04:
Well, but everything, that's not specific as to whether it was these specific records that were being sought and whether they were up to the date that was being sought in the subpoena.

[00:23:39] Speaker 01:
Well, the government didn't show that, I mean, it's their burden of proof, and they didn't offer any evidence.

[00:23:44] Speaker 04:
Well, they proved that he deleted the account, but- He closed the account.

[00:23:49] Speaker 04:
That he closed the account.

[00:23:50] Speaker 04:
Well, I thought it said, well, closed.

[00:23:53] Speaker 04:
I thought it said deleted, I can't remember.

[00:23:55] Speaker 04:
But anyway, so the counter to that was law enforcement, local law enforcement gave them the same information, right?

[00:24:08] Speaker 04:
That's not really verified in the record, though.

[00:24:14] Speaker 01:
Well, it is.

[00:24:14] Speaker 01:
The government introduced Mr. — this is the government's evidence — they introduced Mr. Diaz's deposition.

[00:24:20] Speaker 01:
In his deposition, he said the detective, Detective Kuna, executed a search warrant on the north of Lights End

[00:24:27] Speaker 01:
a Gmail account that he received confirmation of that in the mail that he executed the warrant on that account.

[00:24:35] Speaker 01:
Then Detective Kuna testified.

[00:24:37] Speaker 01:
He testified that he executed warrants on the Gmail accounts and he never disputed that he didn't execute a warrant on that account.

[00:24:44] Speaker 04:
Okay, the jury heard all of this evidence, right?

[00:24:47] Speaker 04:
The jury heard all of this evidence and convicted your client.

[00:24:53] Speaker 04:
Right.

[00:24:54] Speaker 04:
And it was insufficient.

[00:24:54] Speaker 03:
The evidence was insufficient.

[00:24:57] Speaker 03:
Maybe I'm misunderstanding the facts here.

[00:25:01] Speaker 03:
The special agent testified that the government executed a search warrant for the account, but did not get any emails back because the account had been deleted.

[00:25:16] Speaker 03:
Detective Kuna,

[00:25:19] Speaker 03:
also testified that the government had attempted to execute a search warrant for the account and got subscriber information back, but no emails because the account had been deleted.

[00:25:36] Speaker 03:
So why isn't a reasonable inference that whatever may have happened before then,

[00:25:44] Speaker 03:
When he made the decision, when your client made the decision to delete, it was to prevent the government from getting further access to the emails in that account.

[00:25:56] Speaker 01:
Well, Your Honor, I think you had misstated the testimony a little bit.

[00:26:02] Speaker 01:
Detective, it was the federal agent who said that he tried to execute a search warrant at some point in time.

[00:26:10] Speaker 01:
They didn't even introduce whether it was five years ago.

[00:26:13] Speaker 04:
But it was deleted, not closed.

[00:26:14] Speaker 03:
So the two, the special agent that we're talking about testified that the government executed a search warrant for the account and quote,

[00:26:26] Speaker 03:
did not get any emails back because the account had been deleted.

[00:26:30] Speaker 03:
That's at volume five of the record at page 856.

[00:26:35] Speaker 03:
Detective Kuna similarly confirmed that the government had attempted to execute a search warrant for the account and quote, got subscriber information back

[00:26:46] Speaker 03:
but no emails because the account had been deleted, close quote.

[00:26:51] Speaker 03:
That's at 7, volume 7 of the record at page 1505.

[00:26:56] Speaker 03:
So what did you think I misstated?

[00:26:59] Speaker 01:
Okay, well I'll take a look at 7, 1505.

[00:27:01] Speaker 01:
My recollection, and the government didn't argue this in their brief, was that Kuna said that

[00:27:07] Speaker 01:
He executed warrants.

[00:27:09] Speaker 01:
He had executed warrants on Gmail accounts.

[00:27:11] Speaker 01:
He never said anything that I only got subscriber information back on the north of lights and the government never pointed that out on the brief.

[00:27:17] Speaker 01:
And I'll look at seven to 70 are again site that you mentioned, but that was never raised in the brief.

[00:27:23] Speaker 01:
I've never seen that.

[00:27:25] Speaker 01:
And Mr. Diaz testified in his deposition that they did execute the warrant on the account.

[00:27:32] Speaker 01:
He got the confirmation of that, and Kuna never disputed that.

[00:27:39] Speaker 01:
But I'll take a look at 7ER again.

[00:27:42] Speaker 04:
Well, the record is the record.

[00:27:44] Speaker 04:
It was presented to the jury.

[00:27:45] Speaker 04:
So the issue is whether or not this evidence was sufficient to sustain the jury's verdict.

[00:27:52] Speaker 04:
So whatever it is, whether you agree with it or not, it's the record.

[00:27:58] Speaker 01:
No, correct.

[00:27:59] Speaker 01:
But you know, Katakis, that was a case, that was a sufficiency of the evidence case.

[00:28:02] Speaker 01:
If they didn't show actual obstruction, then they can, then there's insufficient evidence.

[00:28:08] Speaker 01:
I mean, that was what Katakis said.

[00:28:11] Speaker 01:
One final point, I know I'm over on the stalking.

[00:28:15] Speaker 01:
The government, I think, I mean, they're making it clear that this is just a generalized statute that if you, and here's an example.

[00:28:22] Speaker 01:
This is what they say violates the statute apparently.

[00:28:25] Speaker 01:
I'm a very powerful political figure.

[00:28:29] Speaker 01:
I issue two social media posts, which our political figures tend to do a lot these days.

[00:28:35] Speaker 01:
I say that a particular Congress person has committed treason for conducting a completely lawful investigation and that that particular Congress person should be punished potentially with life in prison for treason.

[00:28:51] Speaker 01:
That particular congressperson is certainly going to have been intimidated, is certainly going to feel emotional distress.

[00:28:58] Speaker 01:
It was that political figure's intent to cause that type of emotional stress to intimidate and to harass, but under the government's view, that's a violation of this statute.

[00:29:09] Speaker 01:
Two social media posts with an intent to cause that type of distress

[00:29:13] Speaker 01:
is a violation of the statute.

[00:29:15] Speaker 01:
And that just can't be.

[00:29:17] Speaker 01:
That cannot be what the statute means.

[00:29:19] Speaker 01:
It's not a free-floating statute to police the internet.

[00:29:22] Speaker 01:
It's a stalking statute.

[00:29:24] Speaker 03:
Of course, we might be able to take judicial notice of the fact that politicians never suffer emotional distress.

[00:29:30] Speaker 01:
But as a politician, and someone was telling me I committed treason for conducting a completely lawful investigation, I'd be distressed.

[00:29:42] Speaker 04:
Thank you, counsel.

[00:29:43] Speaker 04:
Thank you.

[00:29:44] Speaker 04:
You've exceeded your time.

[00:29:45] Speaker 04:
Thank you to both counsel for your helpful arguments in this case.

[00:29:48] Speaker 02:
Presiding Judge, before we go to the next one, and perhaps I misheard this, when you went over the submitted cases, I don't remember hearing you refer to Sabina versus Core Logic.

[00:30:01] Speaker 02:
If I missed that, I'm sorry, but that one has also been submitted.

[00:30:04] Speaker 02:
Did you mention that one?

[00:30:06] Speaker 04:
I thought that was on our Friday calendar.

[00:30:09] Speaker 02:
It was, but got switched.

[00:30:11] Speaker 02:
I would have got switched to Thursday.

[00:30:14] Speaker 04:
Yeah, it didn't get switched to today.

[00:30:16] Speaker 02:
Oh, it did?

[00:30:17] Speaker 02:
Okay.

[00:30:17] Speaker 02:
It's not on today's calendar.

[00:30:18] Speaker 02:
In my internal one, I have it for today, but never mind.

[00:30:21] Speaker 04:
I know.

[00:30:21] Speaker 04:
We did a lot of changes.

[00:30:23] Speaker 02:
Okay.

[00:30:23] Speaker 02:
It's hard.

[00:30:24] Speaker 04:
I apologize.

[00:30:25] Speaker 04:
Yeah, it's not on the document for today.

[00:30:27] Speaker 02:
Very good.

[00:30:28] Speaker 02:
Okay.

[00:30:28] Speaker 04:
All right.

[00:30:29] Speaker 04:
Thank you.

[00:30:30] Speaker 04:
Thank you to both counsel for your helpful arguments.

[00:30:32] Speaker 04:
The case still to argue is submitted for a decision by the court.