[00:00:00] Speaker 04: So And we have on by video. [00:00:04] Speaker 04: Mr. Burns is appearing by video and then we have is that Lindsay Alsop appearing in person? [00:00:10] Speaker 04: Can you hear us? [00:00:11] Speaker 04: Okay, Mr. Burns? [00:00:13] Speaker 01: Yes, your honor. [00:00:14] Speaker 04: All right. [00:00:15] Speaker 04: Let us know if you have any difficulty hearing anything and are you ready? [00:00:19] Speaker 04: I Am all right, go ahead [00:00:22] Speaker 01: Good morning, Your Honors. [00:00:23] Speaker 01: Todd Burns on behalf of Mr. Eggleston. [00:00:25] Speaker 01: I would like to begin by thanking the panel for so quickly accommodating my request here remotely. [00:00:31] Speaker 01: And I would be remiss if I didn't also mention that members of the court staff and the clerk's office were especially responsive and helpful. [00:00:42] Speaker 01: And I'm deeply grateful for that. [00:00:44] Speaker 04: Turning to- I hope your family member's doing better, but I know that it's a grave situation for you. [00:00:50] Speaker 01: Thank you. [00:00:51] Speaker 01: Turning to the argument, my hope is to reserve three minutes for rebuttal. [00:00:55] Speaker 01: And I want to begin with the issue surrounding the preclusion of the third party culpability defense. [00:01:03] Speaker 01: The government doesn't dispute that there was adequate evidence to support the third party culpability defense. [00:01:10] Speaker 01: And it also doesn't dispute that the instruction given precluded that defense. [00:01:14] Speaker 01: As a matter of fact, in the pretrial filing, government counsel was fairly candid in indicating that that is exactly what she sought to preclude the defense. [00:01:25] Speaker 01: And that is exactly what occurred. [00:01:28] Speaker 01: But what the government says [00:01:31] Speaker 01: on appeal is it doesn't matter because defense counsel was able to argue the defense during closing. [00:01:37] Speaker 01: That's not factually correct. [00:01:39] Speaker 01: Defense counsel was fully aware, as you can see from his pretrial filings, that if the instruction were given that the defense would be precluded. [00:01:47] Speaker 01: And his argument following the giving the instructions was consistent with that. [00:01:53] Speaker 01: He did not argue third party culpability defense. [00:01:56] Speaker 01: But even if he had, it would be irrelevant because [00:02:00] Speaker 01: The instruction precluded that defense, and the jurors are, of course, presumed to follow the instructions. [00:02:08] Speaker 01: And the error in this regard is a structural error under this court's opinion in Miguel, basically to shut down the court for defense. [00:02:15] Speaker 04: Well, I'm just trying to decide, though, because as I read it, the point of the instruction is to make sure the jury realizes that it's their job to decide that the government has proved that [00:02:28] Speaker 04: your client or that particular defendant is guilty. [00:02:32] Speaker 04: And it seems like that in this case where it would make sense to give that instruction given the competing theories that either the defendant, Cooper, or the defendant and Cooper knew about the drugs. [00:02:45] Speaker 04: So if the instruction isn't given, I'm not sure when it would be. [00:02:50] Speaker 04: So is it your position it should never be given? [00:02:54] Speaker 01: Well, I think it's possible that another instruction could be given that would take into account the facts and circumstance of this case. [00:03:01] Speaker 01: But this instruction is not that one. [00:03:03] Speaker 01: It says, possible guilt of others is not a defense. [00:03:06] Speaker 01: Don't let the possible guilt of others influence your decision in any way, in any way. [00:03:13] Speaker 01: And the parties made clear to the court their understanding that if this instruction were given, it would shut down the third party culpability defense, and I think justifiably so based on the language. [00:03:23] Speaker 01: And the Sixth Circuit, which this is a model instruction from the Sixth Circuit in the commentary of the model instruction, they specifically say, caution against using this instruction if a third party culpability defense is given. [00:03:35] Speaker 01: So I'm not saying that there isn't some instruction they could take into account. [00:03:40] Speaker 01: uh... that you know just because someone else is guilty that alone is not a reason to quit but this instruction does more than that it says don't consider it is explain how mister coopers guilt would completely absolve mister eggleston of guilt well the the defense was that mister eggleston had been set up that he had that mister cooper given mister eggleston the bag mister eggleston didn't know there were drugs in the bag [00:04:06] Speaker 01: So it would absolve him from that perspective, that he didn't know, he didn't have knowledge, the central issue in this case. [00:04:13] Speaker 03: But he said he packed the bag with his homie, Mr. Eggleston did, so... That's correct, but that's somewhat a vague statement. [00:04:20] Speaker 01: They could have been both in the hotel room packing at the same time, they could have packed some things together, not clear what that meant. [00:04:28] Speaker 04: So you talked about the commentary and I looked at the 2025 committee commentary on the 6th Circuit instruction and it specifies that a panel of the 6th Circuit in an unpublished case held that it was not error to give the pattern instruction 2.013 without modification even though the defendant argued someone else committed the crime. [00:04:51] Speaker 04: Is it your position we should ignore that committee commentary or should we distinguish that case? [00:04:58] Speaker 01: Well, I guess I had multiple answers to that. [00:05:00] Speaker 01: I mean, of course, an unpublished opinion even from this court is not binding on this court. [00:05:04] Speaker 01: And that's an unpublished opinion from the Sixth Circuit. [00:05:09] Speaker 01: And I think really what comes into play- It is in the commentary. [00:05:12] Speaker 04: It is in the commentary, right? [00:05:15] Speaker 01: I don't know that the commentary is adopting it or if they're noting it. [00:05:18] Speaker 01: I'm afraid I have not looked at that updated commentary. [00:05:21] Speaker 01: But I think what I would come back to is this court's case law in Vallejo and in Crosby, which says, look, if there is some evidence, any evidence, even if it's speculative or fairly light evidence, that the defendant should be allowed to present that evidence to the jury and have the jury proceed on it. [00:05:42] Speaker 01: And again, [00:05:43] Speaker 01: The government hasn't argued that this instruction precluded the defense. [00:05:50] Speaker 01: They've as much as acknowledged that. [00:05:52] Speaker 01: They just said it doesn't matter because defense counsel was able to argue the defense. [00:05:56] Speaker 03: But the standard of review here is abuse of discretion. [00:05:59] Speaker 03: So how can we find abuse of discretion on this point? [00:06:04] Speaker 01: It is an abuse of discretion for the district court to misstate the law, and I believe this is a misstatement of the law. [00:06:09] Speaker 01: You can't say that don't let the possible guilt of others influence your decision anyway, because the guilt of Mr. Cooper, the idea that Mr. Cooper may be the one who knew that the drugs were in the bag and set up Mr. Eggleston, is certainly something that could raise a reasonable doubt with the jurors. [00:06:32] Speaker 01: As I said, under this court's case law in Miguel, I believe this is structural error. [00:06:36] Speaker 01: Even if not, it would be impossible to say that this is harmless, much less harmless beyond reasonable doubt. [00:06:42] Speaker 01: This is the core of the defense. [00:06:44] Speaker 01: The defense counsel opened on it and then couldn't close on it. [00:06:47] Speaker 01: After one hour, the jurors asked to see a surveillance video, which indicates that they had some interest in Mr. Cooper and what his involvement was and what the interactions were between him and Mr. Gagleston. [00:06:58] Speaker 01: deliberated for four hours in what was a relatively short case, especially when you take out jury selection and whatnot from the two-day trial. [00:07:08] Speaker 01: The government emphasized the instruction in closing, and the government really used Cooper then as a one-way ratchet, too. [00:07:14] Speaker 01: They said, oh, Cooper is this layoff guy who's part of the organization and is keeping an eye on the drugs. [00:07:19] Speaker 03: And could use that to convict mr. Eggleston whereas mr. Eggleston couldn't present his third-party culpability defense I still don't see how it's abuse of discretion if it's consistent with the Ninth Circuit jury instruction on on absent co-defendants I mean if it's if it's consistent with our jury instructions in this situation and [00:07:41] Speaker 01: Well, I'm not sure that it is consistent with that. [00:07:43] Speaker 01: The government didn't argue that. [00:07:45] Speaker 01: I have not looked at the absent codefendant instruction in a little bit, but I assume that it would not say in a case in which there's a third-party culpability defense being presented that you can't consider the guilt of others in any way. [00:08:03] Speaker 00: If I recall correctly, the government, and we can ask government counsel this, in the proposed jury instructions, they did reference [00:08:10] Speaker 00: the missing witness or the missing co-defendant instruction. [00:08:14] Speaker 00: I could be wrong about that, but I do have a memory of that. [00:08:16] Speaker 00: So I think they did raise it to the district court. [00:08:18] Speaker 00: I agree with you, Mr. Burns, it's not identical, but I do think that as an analogy was presented to the district court in the charging conference or was the proposed instructions that were provided. [00:08:29] Speaker 00: I think it wasn't there. [00:08:31] Speaker 01: Well, and again, I don't dispute that there isn't some formulation of instruction here that could take into account that, hey, you shouldn't acquit the person just because someone else is guilty. [00:08:42] Speaker 01: I don't think that's impermissible. [00:08:45] Speaker 01: But to say you can't take the guilt of someone else into account in any way, [00:08:50] Speaker 01: is that that goes much farther than a missing witness instruction, and it is an especially problematic, impermissible error in the context of this case, because it prevented defense counsel from presenting the defense. [00:09:03] Speaker 01: He did not, in closing, argue the defense, and everyone seemed to understand that that was the thrust of the instruction. [00:09:10] Speaker 01: That was what government counsel argued for in asking for the instruction. [00:09:14] Speaker 01: And it was certainly what defense counsel understood and that that was actually in the pretrial submissions of the proposed jury instructions. [00:09:22] Speaker 01: Everyone was on the same page as to the thrust of the instruction. [00:09:29] Speaker 01: If there are no more questions on that, I'd like to turn to the briefly to the jewel willful blindness instruction. [00:09:35] Speaker 01: There is insufficient evidence on either of the elements of that instruction and beginning with the first one, whether or not the defendant believed. [00:09:45] Speaker 01: subjectively to a high degree of probability that there were drugs in the bag. [00:09:49] Speaker 01: The government says, well, this keyboard is packed on top of the keyboard box, and that should have created such a subjective belief. [00:09:58] Speaker 01: First of all, it's not clear how the keyboard and keyboard box were packaged because the person that unpacked the bag, TSA Officer Martinez, couldn't recall how they were packaged. [00:10:08] Speaker 01: But even setting that aside, [00:10:10] Speaker 01: There's no evidence that Mr. Eggleston saw that keyboard and keyboard box and saw the box, the keyboard was out of the box and subjectively believed that there was a great probability that there were drugs in the box. [00:10:22] Speaker 01: There's no evidence he believed that subjectively, zero. [00:10:25] Speaker 01: But even if you were going to look at it objectively, which is not the test, I don't think you could say a reasonable person who sees that someone's packing a keyboard box and a keyboard outside the box would jump to the conclusion that, oh, there must be drugs in the box. [00:10:38] Speaker 01: That's a big leap. [00:10:39] Speaker 01: And that's objective. [00:10:41] Speaker 01: And that's, of course, a negligence or recklessness standard, which is exactly what the court, in the dissents in these cases, is cautioned that Juul should not plead into lessening the knowledge standard to something along the lines of recklessness or negligence. [00:10:56] Speaker 03: But our court en banc in Heredia said that there's no risk of it kind of being watered down to a negligence standard. [00:11:06] Speaker 01: Well, they said there's no risk if it's given in the right circumstances. [00:11:10] Speaker 01: That is, where there is evidence that subjectively the defendant believed that there is a high probability there were drugs in there and then avoided knowing it basically because... Well, but you can have two... The defendant can go two ways. [00:11:22] Speaker 04: I think the prosecutor [00:11:24] Speaker 04: argued actual knowledge, but then they backed it up with the blindness. [00:11:29] Speaker 04: But the court, when you're a judge and you are presented with instructions, if there has to be some evidence of that theory of the case, and there was some evidence of that, so how could that be error for the court to give it? [00:11:44] Speaker 01: There was no evidence that he subjectively believed that there might be drugs in the box. [00:11:50] Speaker 01: If you compare this to example four to Jule, the original case, there is all sorts of stuff where he says, look, I knew there was a department, but if I couldn't find anything there, I figured the people at the border couldn't find it. [00:12:02] Speaker 01: I knew the person who was asking me to do this was sketchy. [00:12:04] Speaker 01: I knew it was a [00:12:05] Speaker 01: a dubious situation. [00:12:07] Speaker 01: Same thing in cases like Barron. [00:12:10] Speaker 01: There was a lot of, and Barron they said it's not even appropriate to give a jewel instruction. [00:12:15] Speaker 04: Well, but I think the government presented evidence that a jury could rationally find to be willful blindness. [00:12:23] Speaker 04: It's got two elements for that, and the government presented evidence that Engelson carried and checked the bag containing drugs, paid the bag fee using a prepaid card, [00:12:33] Speaker 04: falsely denied having checked the luggage before admitting that he did check the bag and claimed he packed the bag with his homie. [00:12:41] Speaker 04: Other evidence showed that the bag contained one of Eggleston's receipts. [00:12:47] Speaker 04: The Eggleston received a text message from [00:12:51] Speaker 04: I don't know, the emoji with mama said call when you get in and the bag contained almost three kilograms of fentanyl. [00:13:01] Speaker 04: So, I mean, there just has to be some evidence of the willfully blind and I think there was some evidence there. [00:13:10] Speaker 01: But as this court said in Alvarado and Barron in examining similar suspicious circumstances, those facts just go to knowledge. [00:13:17] Speaker 01: They do not show that the defendant subjectively [00:13:21] Speaker 01: believed there was a high probability there were drugs in there, and then avoided confirming or dispelling that suspicion. [00:13:29] Speaker 01: There's just no evidence of his subjective belief. [00:13:33] Speaker 01: On the other hand, as Alvarado and Barron say, the jury could infer that he knew based on the suspicious circumstances, but there's no evidence of his subjective belief. [00:13:44] Speaker 04: Do you want to save any time for rebuttal? [00:13:46] Speaker 04: You're down to a minute. [00:13:47] Speaker 01: I was hoping to save three minutes, but I was answering your question first. [00:13:51] Speaker 01: Okay, yes. [00:13:52] Speaker 04: Okay, so I'll give you two minutes. [00:13:54] Speaker 04: All right, we'll split the difference. [00:13:56] Speaker 04: All right, thank you. [00:13:59] Speaker 04: All right, we'll hear from the government. [00:14:14] Speaker 02: Good morning. [00:14:16] Speaker 02: Good morning. [00:14:16] Speaker 04: Can you keep your voice up? [00:14:17] Speaker 04: Yes. [00:14:18] Speaker 02: May it please the court, Lindsay Alsop for the United States, the plaintiff of Pelley in this matter. [00:14:23] Speaker 02: The ultimate question in this case is whether there is substantial evidence of guilt. [00:14:30] Speaker 03: Including but not limited to the video evidence that shows the defendant Jermaine Eggleston address your opposing counsel's argument that it is isn't it a little bit misleading to say that You can't consider the guilt of others in any way didn't that preclude? [00:14:48] Speaker 03: mr. Eggleston from being able to argue that it was all mr. Cooper and Mr. Eggleston didn't have knowledge and have any reasonable evidence [00:14:57] Speaker 02: As reflected in in the record or the trial record that is more specifically [00:15:08] Speaker 02: The defendant was actually able to put forth his defense and to identify Zachary Cooper as the person who possessed not only the bag but the narcotics in that bag. [00:15:20] Speaker 02: Defense counsel was unequivocal in closing that the defendant Jermaine Eccleston was not the owner of the bag or any of those items. [00:15:28] Speaker 03: But if the judge gave them an instruction that they had to follow that said you could not consider [00:15:34] Speaker 03: the guilt of others, quote, in any way, end quote. [00:15:38] Speaker 03: Doesn't that somehow negate the arguments that the defense counsel was trying to make? [00:15:44] Speaker 02: Respectfully no your honor, and I would just draw the court's attention also to the excerpt of record for 26 It's omitted from defendants briefs however Mr.. Seiden defense counsel at the time actually agreed with the modification of that instruction and the court said and I quote speaking of proposed instruction 31 is this the one that I reserved a decision on and [00:16:07] Speaker 02: So maybe whether anyone else should also be prosecuted for the crime Mr.. Sidon responded I'd like that language judge the court then responded all right I think that will be all of the changes then so at that point in time defense counsel counsel agreed with the modification and agreed if if someone gives a closing argument and all their cross I [00:16:28] Speaker 03: is directed at trying to pin the guilt on someone else. [00:16:33] Speaker 03: And then there's a legal jury instruction. [00:16:35] Speaker 03: The court is instructing the jury to consider. [00:16:38] Speaker 03: And they have to apply it during their deliberation, says you cannot consider it in any way whether other people are guilty. [00:16:47] Speaker 02: Your honor, the instruction, given that there was also this idea of joint possession, the instruction would not have precluded, for example, jurors thinking that Zachary Cooper was also culpable for this crime. [00:17:00] Speaker 02: The instruction as phrased was just very clear. [00:17:02] Speaker 02: Just because Zachary Cooper may also be culpable, that does not mean that Jermaine Eggleston is not also culpable. [00:17:09] Speaker 02: But the fact that defense counsel agreed with this modification in instruction is relevant. [00:17:14] Speaker 04: I'm just given the court's review and so are you saying it's relevant because then it's plain error review. [00:17:19] Speaker 04: I guess it's not an objection or what I I don't quite understand what you're saying. [00:17:24] Speaker 04: Are you saying they didn't object? [00:17:27] Speaker 02: I'm saying that defense counsel agreed with the instruction at that time and therefore similar to for example is cross examination of Detective Woodard how that was invited error this to could [00:17:38] Speaker 02: also be considered invited error. [00:17:40] Speaker 02: It was a jury instruction that defense counsel effectively stipulated to, agreed to following the conference with government counsel when we were discussing the jury instructions. [00:17:50] Speaker 04: That's different than the invited error part of it, I think. [00:17:52] Speaker 04: You're conflating that a little bit. [00:17:54] Speaker 04: But if you're saying they didn't object because they agreed to the modified, then that changes the standard of review, right? [00:18:02] Speaker 02: That is correct, Your Honor. [00:18:04] Speaker 04: So not really invited error, more plain error, or what are you saying? [00:18:09] Speaker 02: Well, on either sort of vantage point, the government would submit that there was no plain error, or if there was any error, it was simply harmless. [00:18:21] Speaker 02: But the fact, again, that- Well, what is your position? [00:18:26] Speaker 04: What is the standard of review? [00:18:27] Speaker 04: They're now saying that that was an error. [00:18:31] Speaker 04: So what is the standard, what is our standard of review? [00:18:33] Speaker 02: The standard of review would be a plain error review, Your Honor. [00:18:38] Speaker 04: Because they agreed to the modified instruction? [00:18:42] Speaker 02: Correct. [00:18:46] Speaker 04: And then you're saying no plain error, but even if plain error, harmless error? [00:18:50] Speaker 04: Correct, Your Honor. [00:18:51] Speaker 04: Is that what your argument is? [00:18:52] Speaker 00: Okay. [00:18:53] Speaker 00: And if I could just jump in, I want to make sure we're all talking about the same thing. [00:18:56] Speaker 00: The language, I think, at issue here [00:18:59] Speaker 00: I'm looking at ER 440 is, do not let the possible guilt of others influence your decision in any way. [00:19:05] Speaker 00: I know we've heard, like, don't consider it. [00:19:07] Speaker 00: That actually was not the instu- I've heard people say it was, don't consider it. [00:19:10] Speaker 00: That actually was not the instruction given, right? [00:19:12] Speaker 00: The instruction I read is the one at issue, correct? [00:19:14] Speaker 02: Correct. [00:19:15] Speaker 00: Okay, because I don't see the word, I don't see the word consider. [00:19:19] Speaker 00: I see it's not, I see on the top. [00:19:20] Speaker 00: Were there anyone else should have been also prosecuted and convicted for this crime? [00:19:24] Speaker 00: It's not a proper matter for you to consider. [00:19:28] Speaker 00: That seems to be pretty standard language. [00:19:30] Speaker 00: That's similar to our Ninth Circuit instruction when you have a co-defendant who drops out of the case. [00:19:34] Speaker 00: I think the problem, not saying it's a problem, but the problematic is that last sentence, do not let the possible guilt of others influence your decision in any way. [00:19:45] Speaker 00: What's your best response? [00:19:46] Speaker 00: That's the language. [00:19:47] Speaker 00: I think that is the alleged problem. [00:19:49] Speaker 00: What's your response to why that sentence is OK? [00:19:54] Speaker 02: Ultimately, the instruction is given and given what defense counsel was permitted to argue during closing would have led the jury to the ultimate conclusion that even if Zachary Cooper was responsible, that does not mean that Jermaine Eggleston also could not have been responsible. [00:20:12] Speaker 02: And given the jury's ultimate verdict, they appear to have agreed essentially that Jermaine Eggleston to some extent was [00:20:20] Speaker 02: involved in the trafficking of narcotics, whether he jointly possessed them with the Zachary Cooper or whether he possessed them on his own. [00:20:27] Speaker 02: And Zachary Cooper was none the wiser. [00:20:29] Speaker 02: But the purpose of that instruction was quite clear that the jury should not get bogged down in this idea of essentially the fact that Zachary Cooper was not prosecuted for this crime because that is something that defense counsel elicited during cross-examination of Detective Woodard and tried to poke holes in the investigation [00:20:48] Speaker 02: And to suggest that just because Zachary Cooper, too, was not prosecuted for this crime, somehow Mr. Eggleston would have been innocent. [00:20:55] Speaker 02: And that was not necessarily the case. [00:20:59] Speaker 02: If I may that. [00:21:00] Speaker 03: I'll ask you a different question. [00:21:03] Speaker 03: With regard to Agent Parris's testimony, when he's talking about that specific text that Judge Callahan read into the record, he gives the interpretation of what [00:21:16] Speaker 03: the courier who received that text would have understood that text to mean. [00:21:21] Speaker 03: He doesn't say most couriers, which is what you're required to do under Diaz. [00:21:28] Speaker 03: So how, I guess, you know, you point to language in Paris's testimony about other topics where he says most couriers. [00:21:38] Speaker 03: But with regard to that text, it's specific to Mr. Eccleston. [00:21:43] Speaker 03: So why would that, [00:21:47] Speaker 02: So it's important to note that Special Agent Paris did not attribute any sort of intent to Mr. Eggleston specifically. [00:22:00] Speaker 02: what a typical courier or in some reference, in some instances, what a typical mule, though he said that they were very rare and hard to come by, may do in a certain situation or instance. [00:22:12] Speaker 02: I don't believe that you can evaluate his one answer in a vacuum. [00:22:17] Speaker 02: It should be taken collectively with the entirety of his testimony. [00:22:21] Speaker 02: And throughout his testimony, he repeatedly qualified that in most instances or in sometimes, [00:22:27] Speaker 02: Quarriers and or in some instances mules will take certain action or will not take certain action But for this specific text message, and it the government would respectively submit that it is permissible under Diaz Special agent Paris did not say specifically that the detent the defendant must have been a courier because he received that text message and [00:22:49] Speaker 02: His answer was that someone receiving that text message likely would have known that they were transporting narcotics or drugs and It's also important to note that special agent Paris did not denote for example the specific kind of narcotic or drug which further sort of separates his testimony from the defendant's specific actions in this case and ultimately Left this for something for the jury to decide I would note and draw the court's attention to the fact that in closing that [00:23:18] Speaker 02: defense counsel actually argued this point and said, what does this text mean? [00:23:24] Speaker 02: The expert says he doesn't know. [00:23:25] Speaker 02: He says it's a code. [00:23:27] Speaker 02: All right, what's the code? [00:23:28] Speaker 02: But he couldn't tell us. [00:23:29] Speaker 02: What's the key? [00:23:30] Speaker 02: What's the crypto? [00:23:31] Speaker 02: I don't know. [00:23:32] Speaker 02: And so defense counsel is not even interpreting the way that special agent Paris answered that question to attribute [00:23:39] Speaker 02: Intent to the defendant mr.. Eggleston specifically based on defense counsel's argument. [00:23:45] Speaker 02: It was an open question It could have been interpreted one way or it could have been interpreted another way and because it was an open question in a matter ultimately for the jury to decide special agent Paris as The expert was not telling the jury what they should believe his testimony should be considered under dia permissible under Diaz When [00:24:10] Speaker 03: Agent Woodard said that Mr. Eggleston wasn't surprised when he was detained. [00:24:16] Speaker 03: Was that post-arrest pre-Miranda silence, or was that silence at the time of arrest? [00:24:27] Speaker 02: So as an initial matter, I would also draw the court's attention to the fact that repeatedly, whether it be in direct examination of the witnesses, opening, closing, and rebuttal, [00:24:40] Speaker 02: The government never referred to silence. [00:24:42] Speaker 02: The government repeatedly referred to defendant's demeanor, which arguably is permissible. [00:24:48] Speaker 04: Well, I guess, though, but generally speaking, [00:24:52] Speaker 04: I was a trial judge a really long time ago, and I was a trial attorney even longer time ago. [00:24:57] Speaker 04: But that being said, generally, whether a surprise would be like that's not really, you could describe someone's demeanor, but that's kind of an emotion. [00:25:08] Speaker 04: And generally when witnesses would try to describe how someone else felt, there would be an objection that that would be hearsay. [00:25:16] Speaker 04: You can't describe how someone else feels. [00:25:19] Speaker 04: So surprise is a feeling in my view, so why would why wouldn't it be objectionable as hearsay I? [00:25:28] Speaker 04: Don't I don't know why the prosecution had to do all of that anyway. [00:25:31] Speaker 04: I'm I mean, I don't know what a surprise look like I Bet someone might have that on video. [00:25:38] Speaker 04: I don't know. [00:25:38] Speaker 04: What does it look like or? [00:25:40] Speaker 00: Well, it is now. [00:25:41] Speaker 04: Yeah. [00:25:45] Speaker 04: But, you know, like you would say, if someone was, whether someone's upset, you could testify someone, they were crying and then the jury could decide what that crying meant. [00:25:56] Speaker 04: Were they tears of joy? [00:25:57] Speaker 04: Were they tears of upset or whatever? [00:26:00] Speaker 04: But I don't know why the prosecutor needed to do that and what a surprise looked like. [00:26:05] Speaker 02: Well, I would say two points your honor your comments as to whether or not government council should have introduced this evidence I think goes to the government's ultimate point that the evidence in this case was so overwhelming that even excluding that testimony and excluding reference to. [00:26:23] Speaker 02: the defendant's lack of surprise and calm demeanor, the defendant, Mr. Eggelson, still would have been convicted. [00:26:30] Speaker 04: I guess, though, Judge Koh was trying to say, so if he didn't seem surprised about being arrested, then that would be post-arrest and under Ninth Circuit precedent. [00:26:44] Speaker 04: That's problematic, right? [00:26:47] Speaker 02: Yes, Your Honor, and the government's position is that [00:26:50] Speaker 02: this was not a referral or reference to his post-arrest demeanor. [00:26:55] Speaker 02: It's notable that throughout the course of Detective Woodard's testimony, government counsel continued to ask him about defendant's demeanor. [00:27:03] Speaker 02: It wasn't just this one question about how he was responding at the time he was arrested. [00:27:09] Speaker 04: But everything but that surprise happened before he got arrested, right? [00:27:14] Speaker 02: Correct. [00:27:14] Speaker 02: However, considering the record before the jury at that time, you have an individual who has now had to be asked three times about whether or not he checked a bag that he is on video. [00:27:28] Speaker 02: Obtaining a prepaid credit card for in checking while another individual appears to sort of be shadowing. [00:27:35] Speaker 03: I'm still not clear Regardless of whether it's silence or demeanor Just let's concede its demeanor was that demeanor at the time at the moment of arrest or was that? [00:27:46] Speaker 02: After arrests the government's position is that the demeanor questions on direct for detective Woodard? [00:27:52] Speaker 02: continued through the interview and up until the time of arrest, there was no reference to his post arrest demeanor. [00:27:59] Speaker 03: Okay, because I think in your brief, you call it a post arrest pre Miranda silence. [00:28:06] Speaker 02: I believe that either way, even even if it was post arrest, there still appears to be some sort of gray area. [00:28:13] Speaker 02: But at bottom, the references to the defendant's demeanor and it's notable that there were no references to his silence. [00:28:21] Speaker 02: to the contrary, government counsel tried to get defense counsel to get away from referring to his post-Miranda silence. [00:28:29] Speaker 02: It was all about the fact that the defendant did not appear to be emotive or surprised at the fact that he was being confronted about a bag that he had checked, and that ultimately went to this idea of knowledge. [00:28:43] Speaker 02: Someone who [00:28:45] Speaker 02: believes that they just checked a bag full of clothes and did so for a friend, which is what defense counsel argued during opening and closing, would have quickly pointed to the person that they had checked the bag for. [00:28:59] Speaker 02: Zachary Cooper, the individual that the defense identified as the true owner of the bag and the drugs in it, was present at the gate with defendant, had purchased defendant's ticket to LA and his accommodations in LA. [00:29:11] Speaker 02: He absolutely would have been able to, when first asked by Detective Woodard, if he had checked a bag, to point to Zachary Cooper and to say, oh, that's his bag. [00:29:19] Speaker 02: Ask him about it. [00:29:20] Speaker 02: The defendant did not do that. [00:29:22] Speaker 02: And so what the government was looking to do was to extrapolate meaning from defendants' pre-arrest, pre-Miranda interview, where he had a comm demeanor. [00:29:34] Speaker 03: Another question. [00:29:36] Speaker 03: How do we distinguish Alvarado? [00:29:38] Speaker 03: Because the facts seem very, [00:29:40] Speaker 03: point With respect to silence Yeah, you say that in your brief that it's factually distinguishable. [00:29:48] Speaker 03: Don't explain how If we think the facts are the same are there other ways that we should? [00:29:55] Speaker 03: Distinguish alvarado if so what are those? [00:30:00] Speaker 02: What I mean may I may I inquire like the factual distinctions that the court is speaking of is it of timing or [00:30:10] Speaker 04: You don't get to ask the court questions. [00:30:12] Speaker 02: I apologize. [00:30:13] Speaker 03: You said in your brief it was factually distinguishable, but you didn't explain how. [00:30:16] Speaker 03: So I'm actually asking you if, you know, what were you thinking when you made that, and I'm sorry, I don't know who wrote the brief, but, you know, what was the government thinking when it made that assertion that the facts are different? [00:30:28] Speaker 03: Yes, Your Honor, and I... If they're not different, are there other ways that we should be thinking about that case? [00:30:33] Speaker 02: Yes, your honor. [00:30:33] Speaker 02: And I apologize. [00:30:34] Speaker 02: I just wanted to best answer your question. [00:30:37] Speaker 02: So the key distinctions in this case as far as defendant's silence truly are the timing. [00:30:44] Speaker 02: It's the timing of when he was told about the drugs. [00:30:50] Speaker 02: And then the fact that the arrest happened after that. [00:30:55] Speaker 02: And subsequently, with defense counsel's reference to the post-Miranda post-arrest silence, [00:31:03] Speaker 02: So if I may I would put that into sort of three separate buckets. [00:31:08] Speaker 02: There's the timing at the gate Before he was arrested where he is actively speaking with Detective Woodard engaging with him telling him that he packed I'm sorry. [00:31:18] Speaker 03: I'm more interested in the jewel issue with regard to that that question Okay, yeah, thank you, and I know we're running out of time so So do you have any additional questions? [00:31:28] Speaker 03: No? [00:31:28] Speaker 03: No? [00:31:28] Speaker 03: Thank you all right? [00:31:29] Speaker 04: We've taken you over so that concludes your time [00:31:32] Speaker 04: All right, so since we took the prosecution, the government a bit over, I'll give you three minutes for rebuttal. [00:31:40] Speaker 04: Mr. Byrne. [00:31:40] Speaker 01: Thanks, Your Honor. [00:31:43] Speaker 01: Regarding Government Counsel's statement, the testimony that the defendant was calm or not surprised when arrested is permissible. [00:31:49] Speaker 01: That's clearly wrong. [00:31:51] Speaker 01: Velarde Gomez, en banc opinion, makes absolutely clear that that's incorrect. [00:31:55] Speaker 01: And there may have been some of the violations that the government could try to slice an onion on, but some of them are so blatant, including an opening, when he was arrested, he didn't seem surprised. [00:32:10] Speaker 01: Repeatedly, there are statements, and during Woodard's Direct, before there was any cross, that he didn't seem surprised when he was detained, that there was this long conversation, this conversation at the gate, they described, that culminated in the officers coming up to put cuffs on him, [00:32:25] Speaker 01: and that he didn't seem surprised or resist or whatever during that period of time. [00:32:32] Speaker 01: All the way through closing, depending on how you count them, there are 10 or more, and some that I just mentioned are just blatant, including Detective Woodard saying, I'm randomized, I'm in decline to speak. [00:32:44] Speaker 01: I mean, there's a slew of them, and they're not really close. [00:32:48] Speaker 04: Well, part of it, though, defense counsel, he walked right into, [00:32:54] Speaker 04: that there's some invited error there. [00:33:00] Speaker 04: I mean, in terms of when you open the can of the Pandora's box, as we all know, then other stuff can come in that couldn't come in before. [00:33:11] Speaker 04: And there was clearly a line of questioning. [00:33:12] Speaker 04: Defense counsel took the officer down that I think opened up a can of whip whatever you want to call. [00:33:22] Speaker 01: I would say it's more fairly characterized is that the officer in direct had done this damage by what he had said, and defense counsel was trying to clean that up, and the officer was having none of it, was going farther down that road, culminating in unrandized him, and he declined to speak. [00:33:36] Speaker 01: But the opening in the direct came before that, and the repeated violations during the government's closing, rebuttal closing, are entirely independent of that. [00:33:46] Speaker 03: Going to the the missing witness instruction, you know your honor can you address harmless harmless error because I think that is a Hurdle that you have to overcome on on all the issues effectively right on the jewel issue The amendment so can you address that because there does seem to be substantial evidence against mr. Eggleston [00:34:10] Speaker 01: As I said earlier, under Miguel, the third-party culpability, the preclusion of that defense, that is a structural error. [00:34:18] Speaker 01: But even if the court was going to look at harmless error, all of these errors pretty much are synergistic. [00:34:22] Speaker 01: They affect each other. [00:34:23] Speaker 01: They have a cumulative weight. [00:34:25] Speaker 01: And when you look at the fact that the jury was out for four hours in what was probably a case in which there wasn't much more time spent on that, on evidence, the fact that they asked to see the video that Cooper was in, [00:34:38] Speaker 01: And the substantial evidence supporting that Cooper may have given this bag to Mr. Eggleston, and it was his things in it because the clothes didn't fit Mr. Eggleston, I think all those errors interact with each other. [00:34:56] Speaker 01: And so to say it's harmless after how long the jury was out and what they seem to be focused on, I just don't think that the government can get there. [00:35:06] Speaker 04: All right, we've taken you over the three. [00:35:09] Speaker 04: If my colleagues don't have any additional questions, just take 30 seconds to wrap up, if you would. [00:35:14] Speaker 04: Thank you. [00:35:16] Speaker 01: I would just like to finish with the missing witness thing. [00:35:19] Speaker 01: I was trying to do some quick research here while listening. [00:35:22] Speaker 01: I went to the instruction the government cited, which appears to be dismissal charge against the defendant. [00:35:29] Speaker 01: Then I looked at dismissal charge against a co-defendant, 2.15. [00:35:33] Speaker 01: And that Ninth Circuit model opinion just does not fit these circumstances and just does not go as far at all as the instruction was given. [00:35:41] Speaker 01: With that, I'm done. [00:35:42] Speaker 01: Thank you. [00:35:43] Speaker 04: All right. [00:35:43] Speaker 04: Thank you both for your helpful argument in this matter. [00:35:46] Speaker 04: The case will stand submitted and court will be in recess till tomorrow at 9 a.m. [00:35:52] Speaker 04: Thank you. [00:35:53] Speaker 02: All rise. [00:36:11] Speaker 04: Court shall stand in recess until 9 a.m. [00:36:13] Speaker 04: tomorrow morning.