[00:00:03] Speaker 00:
Good morning, Your Honors.

[00:00:04] Speaker 00:
Ethan Ballot for Appellant.

[00:00:06] Speaker 00:
I'll watch my clock and I'm going to try to save three.

[00:00:10] Speaker 00:
In exhorting the jury to acquit in his failed defense of Tom Robinson, Atticus Finch observed that the quality of justice depended on the quality of each juror's judgment.

[00:00:25] Speaker 04:
Counsel, can we cut to the chase?

[00:00:26] Speaker 04:
What specifically in the closing of the prosecutor was misconduct or would cause us to have to reverse?

[00:00:38] Speaker 00:
Well, the unstated basis for the quote or what I was referring to is that there's two things that trial by jury ensures.

[00:00:44] Speaker 00:
And I'll get to your answer briefly, if I may, Your Honor.

[00:00:48] Speaker 00:
that the two things you need, you need an honest prosecutor, and you need a presentation of evidence subject to rational assessment, not emotions.

[00:00:55] Speaker 00:
Trial by emotion, trial by mob is decidedly the antithesis of justice.

[00:00:59] Speaker 00:
So in answer to your question, Judge Grave.

[00:01:01] Speaker 01:
This trial hardly is comparable to the one in Alabama in the novel you're referring to.

[00:01:06] Speaker 01:
Could you answer Judge Graber's question, please?

[00:01:09] Speaker 00:
Yes, Your Honor.

[00:01:10] Speaker 00:
One of the things they did was create, which was thoroughly irrelevant, this idea that the scheme of turnstile jumping on Spirit Airlines was dangerous.

[00:01:20] Speaker 00:
They referred to it as serious danger repeatedly, both in opening summation and in summation.

[00:01:26] Speaker 00:
They now tell this court that the danger they conjured was limited and qualified, but that's one, not what they told the jury, and two,

[00:01:35] Speaker 04:
thoroughly unrelated to a fraud scheme

[00:01:54] Speaker 00:
that the Supreme Court reaffirmed in white last year.

[00:01:57] Speaker 04:
I'm going to argue that the four species of misconduct and misleading statements by the prosecutor... Okay, point me exactly to the places in the record that are of concern to you.

[00:02:09] Speaker 00:
Well, it would start with the opening statement.

[00:02:11] Speaker 00:
I'll start with ER 192 and 194.

[00:02:14] Speaker 00:
It was of concern that they, when they introduced Ms.

[00:02:17] Speaker 00:
Ferguson, what the prosecutor says is as follows.

[00:02:20] Speaker 00:
And this is where his criminal partner and co-defendant, Monique Ferguson, steps in.

[00:02:24] Speaker 00:
She was in on the game.

[00:02:26] Speaker 00:
She had taken a few free flights on Spirit, posing as an airline employee, despite never working at the airline industry or working for any airport or airline at the time.

[00:02:36] Speaker 00:
Let me give you the second quote before I unmask it.

[00:02:39] Speaker 00:
In committing the fraud, this is 194, the second site,

[00:02:43] Speaker 00:
The two defendants posed as airline crew.

[00:02:45] Speaker 00:
They sold Mesa employees' identities to third parties.

[00:02:49] Speaker 00:
They violated air support security procedures.

[00:02:52] Speaker 00:
And they endangered the jobs of employees whose identities they stole.

[00:02:56] Speaker 00:
And they defrauded the airline of hundreds of thousands of dollars.

[00:02:59] Speaker 04:
Counsel, can I ask you a question about what you just read?

[00:03:02] Speaker 04:
That's from the opening?

[00:03:03] Speaker 00:
Correct.

[00:03:04] Speaker 04:
I didn't read your brief as challenging the opening.

[00:03:07] Speaker 00:
No, no, I'm answering your question, but where it started in this is deceit.

[00:03:11] Speaker 00:
This is deceit.

[00:03:12] Speaker 04:
But you didn't raise that specific statement as part of your argument in the opening brief.

[00:03:20] Speaker 00:
Am I right about that?

[00:03:21] Speaker 00:
Yes, and we're not relying on it as an individual claim for relief.

[00:03:24] Speaker 00:
But your question was, where do we begin?

[00:03:27] Speaker 00:
They started with lying about the facts, and I think that should concern the court.

[00:03:32] Speaker 01:
I didn't hear anything in there that sounds like it was disconnected from the facts.

[00:03:37] Speaker 01:
I thought your point about closing was physical dangers.

[00:03:42] Speaker 01:
There was counsel there was not a whisper of that in the opening that you just cited and what we're looking for is something that should have led a district judge to jump out of his or her chair and interrupt a closing When there's no objection from the defense.

[00:04:02] Speaker 00:
Well, I would disagree with that in one way and

[00:04:05] Speaker 00:
If, and that's why I said I'm raising the due process question, and I understand that plain errors is what applies here because it wasn't a peep as the court has observed.

[00:04:15] Speaker 00:
What I'm arguing here is that plain errors decided at the time of appeal, which is Henderson.

[00:04:21] Speaker 00:
And that's the Supreme Court.

[00:04:22] Speaker 00:
And when we look at this record and we can identify misleading prejudicial statements that were scripted, that were not close to the truth, that were unfair, our argument today when I speak for Monique Ferguson is to say they didn't give her a fair trial.

[00:04:40] Speaker 00:
They cheated.

[00:04:42] Speaker 00:
They broke the rules in a meaningful way that this court should correct because we only have faith in the jury system to make rational assessments of facts when the prosecutor is honest and doesn't inflame passion.

[00:04:56] Speaker 00:
So on the passion piece,

[00:04:58] Speaker 04:
in a fraud case, saying that she... Well, I'm hearing a lot of passion from you, but the only... Maybe I'm missing something, but I'm looking at ER 655, and this seemed to me to be the place where there's mention of danger, but it's... In passing, it's a short paragraph.

[00:05:18] Speaker 04:
This is not a complicated case.

[00:05:20] Speaker 04:
I think we did it in two and a half days.

[00:05:22] Speaker 04:
It was straightforward.

[00:05:23] Speaker 04:
They knew what they were doing.

[00:05:24] Speaker 04:
They did it anyway.

[00:05:26] Speaker 04:
And in doing so, they defrauded at least two airlines.

[00:05:28] Speaker 04:
They jeopardized the sort of employment of other individuals by fraudulently using their identification.

[00:05:36] Speaker 04:
And frankly, they violated just airline security.

[00:05:39] Speaker 04:
That's true.

[00:05:40] Speaker 04:
And this is the part you don't think was proper and endangered the public, imposing as people they were not.

[00:05:47] Speaker 04:
That is all I could find, pretty much.

[00:05:53] Speaker 04:
Is that about it?

[00:05:55] Speaker 00:
Well, no, I don't think that's it.

[00:05:57] Speaker 00:
I think where we sort of differ, Your Honor, is what Monique Ferguson did was flew once to Costa Rica with her own passport in her name, with a ticket in her name.

[00:06:09] Speaker 00:
It didn't say she was a pilot.

[00:06:11] Speaker 00:
She didn't have an ID.

[00:06:12] Speaker 00:
This is a year before anything happens with any ID in this case.

[00:06:17] Speaker 00:
So what Monique Ferguson did is she paid Hubbard Bell $350.

[00:06:20] Speaker 00:
For that, she flew to Costa Rica.

[00:06:24] Speaker 00:
She didn't take a few trips.

[00:06:25] Speaker 00:
She didn't fly for free.

[00:06:27] Speaker 00:
She didn't pose as a pilot.

[00:06:29] Speaker 00:
Full stop.

[00:06:30] Speaker 00:
Those are facts that are not disputed.

[00:06:33] Speaker 00:
The government told the jury other facts, and our argument is they're not allowed to do that.

[00:06:40] Speaker 00:
They're not allowed to mislead.

[00:06:41] Speaker 04:
She didn't say she was... She made some of the false badges, correct?

[00:06:46] Speaker 00:
No, that's not correct.

[00:06:47] Speaker 00:
What the evidence shows is, and you take a look at Exhibits 19 and 23, badges were forwarded to her by Felix, the co-defendant who's not here today, and then she sent back the identical ones to Felix.

[00:07:01] Speaker 00:
Other IDs were sent to her by Bell.

[00:07:03] Speaker 00:
She forwarded them back.

[00:07:04] Speaker 00:
She didn't make any change The only evidence in the record of making IDs are two pieces.

[00:07:09] Speaker 00:
There's three pieces of evidence one Felix tells her here's a copy of something I've made on redoing it no evidence that she made any counsel you're Once again, you are not claiming that the evidence is insufficient to sustain the conviction, correct, correct They lie about their evidence she

[00:07:31] Speaker 04:
So we're here only on basically a claim of prosecutorial misconduct.

[00:07:39] Speaker 04:
There's sufficient evidence.

[00:07:40] Speaker 04:
She received only probation because of her small role, presumably.

[00:07:45] Speaker 04:
And so the only question is, how much more did the government say, if at all, on the topic that you started out with, which is danger?

[00:07:57] Speaker 04:
Besides the thing that I read aloud.

[00:07:59] Speaker 00:
Well, I'll give you a quote when I get back to it.

[00:08:04] Speaker 00:
I'll move down the line.

[00:08:05] Speaker 00:
The point is, airline safety had nothing to do with what she did.

[00:08:10] Speaker 00:
And she didn't put anyone at risk ever.

[00:08:12] Speaker 00:
And that's a dishonest argument.

[00:08:14] Speaker 00:
That's our position.

[00:08:16] Speaker 00:
And the record evidence of that is she flew once to Costa Rica in 2016 with on her own personal ID.

[00:08:22] Speaker 03:
Oh, she was charged with conspiracy, right?

[00:08:24] Speaker 03:
So all the incidences of using those false tickets can be charged to her?

[00:08:32] Speaker 04:
Yes, the point is they can't... And the argument was that they violated security.

[00:08:39] Speaker 04:
They, as a group, endangered the public by allowing people to pose as people they were not.

[00:08:46] Speaker 00:
No, I think the day in that sentence is her and the single co-defendant in this case, and that's the context of it.

[00:08:51] Speaker 00:
And she had nothing to do with that, so she's not a they, and that's not a fair argument.

[00:08:55] Speaker 04:
Well, that could have been...

[00:08:57] Speaker 04:
That's a good response.

[00:08:59] Speaker 04:
That can be pointed out in the responding argument that, well, they said this, but it was... Right.

[00:09:06] Speaker 00:
I'm not denying that child counsel could have done a better job.

[00:09:09] Speaker 00:
I'm only here, and I'll get to my second lie, to say that the people at that table at this trial lied to a jury and lied to a district judge, and they take offense at it.

[00:09:17] Speaker 00:
They told this jury it was critical that you have to have the exact ID number, the whole... It's a remarkable rephrasing of the actual testimony, right?

[00:09:26] Speaker 00:
What?

[00:09:27] Speaker 00:
I lost you on the point, Your Honor, honestly.

[00:09:32] Speaker 01:
You just gave us a nice, colorful, inflammatory quotation, but that's not the actual language that was used.

[00:09:39] Speaker 01:
It was a sum-up question that included all of the information needed to fill out the form online to get the fraudulent ticket, right?

[00:09:47] Speaker 01:
Now, you've made a big deal in your brief about the difference between

[00:09:52] Speaker 01:
having a real employee's identification number versus a fake identification number, right?

[00:09:58] Speaker 01:
Right.

[00:09:59] Speaker 01:
And the word critical was used in that wrap-up question.

[00:10:03] Speaker 01:
But what I'm trying to understand is why that made any difference at all, and if it was so important to trial.

[00:10:10] Speaker 01:
Why doesn't defense counsel point it out?

[00:10:14] Speaker 00:
Again, I'm going to give you defense counsel a bad job.

[00:10:16] Speaker 00:
It's not true that it was critical or even material.

[00:10:19] Speaker 00:
The evidence we've, which is not disputed.

[00:10:21] Speaker 01:
It was essential to actually go, to give some information to go through the on-screen prompts, right?

[00:10:29] Speaker 00:
Any information.

[00:10:30] Speaker 00:
In any combination.

[00:10:31] Speaker 00:
Yes.

[00:10:32] Speaker 00:
Any information.

[00:10:32] Speaker 01:
Some information had to be provided.

[00:10:36] Speaker 01:
My concern, counsel, is that if you're dealing with the ambiguous testimony, the question did not spell out the difference between real information and fake information, all being provided falsely as part of the scheme.

[00:10:55] Speaker 01:
And my point is that in every trial that I've ever been a part of, there is room to go back and second guess the ambiguous points.

[00:11:09] Speaker 01:
And we count on the trial process and counsel to focus in on the ones that are important.

[00:11:14] Speaker 00:
That may well be true, but we also rely on prosecutors to tell the truth.

[00:11:18] Speaker 00:
And the citation I'm giving you right now is to ER 22, page 220 in volume three.

[00:11:24] Speaker 00:
They had the question, the scripted prepared question was the witness saying that the employee number, the date of hire, and even without a verification code was critical information to book.

[00:11:37] Speaker 00:
And that's not true.

[00:11:38] Speaker 01:
Any, any-

[00:11:42] Speaker 01:
You're playing games with the difference between employee identification information being some employee's correct information versus some incorrect information, right?

[00:11:55] Speaker 01:
And that just wasn't spelled out in the question.

[00:11:57] Speaker 00:
The employee number was irrelevant to accessing any of these tickets, and they told the jury opposite.

[00:12:02] Speaker 00:
It was irrelevant.

[00:12:03] Speaker 00:
It had nothing to do with it.

[00:12:04] Speaker 00:
The only thing you needed was the passcode that they published

[00:12:06] Speaker 04:
And how did this make the slightest difference in the outcome for your client?

[00:12:10] Speaker 00:
Well, that's why I'm arguing about the constitutional standard.

[00:12:13] Speaker 00:
At a certain level, and this is what the Supreme Court re-emphasized last week, when that party lies and deprives someone of a fair trial, you get a do-over because we don't countenance it.

[00:12:22] Speaker 00:
We don't excuse it.

[00:12:23] Speaker 00:
When they tell the jury the third lie, since I'm running out of time,

[00:12:26] Speaker 00:
uh... that they they told uh... was her badge the miller badge is identical so she made all the templates they told the district court it matched precisely to seek an enhanced sentence and those are false and you're either unique or not unique you're either identical or you're not identical you're pregnant or not pregnant they again lied to the jury and lied to the district judge they weren't identical the miller template does not come from the so-called

[00:12:51] Speaker 00:
Ferguson template.

[00:12:52] Speaker 00:
But again, they told something else to the fact finder.

[00:12:55] Speaker 00:
And the last thing they did, and the last thing I'll say, is they used Hubbard Bell's guilty plea as substantive evidence to say, he pled guilty, and he is the two he pled guilty to conspiring with.

[00:13:06] Speaker 00:
That's the substance of it.

[00:13:08] Speaker 00:
And those citations we have in our brief, that that's just not fair.

[00:13:11] Speaker 03:
That we hold- Counsel, you have down to two minutes.

[00:13:12] Speaker 03:
You want to save some for- Yeah, I'll finish my sentence, Your Honor.

[00:13:15] Speaker 00:
Thank you.

[00:13:15] Speaker 00:
I appreciate that.

[00:13:17] Speaker 00:
What white stands for is just the whole idea is that to represent the United States is an awesome power.

[00:13:23] Speaker 00:
And that when they, throughout a trial, make intentional scripted misstatements to improve their case, it's the court's job to say, that's not cricket, even if they had a strong case.

[00:13:34] Speaker 00:
And if the answer only is, well, we think she was guilty anyway, then fair trials are illusory.

[00:13:41] Speaker 00:
because we just make them stand up and we don't care about the honesty and I think starting with Mooney to Berger to Darden to White last month, honesty and not misleading the jury matters and it should matter to this court.

[00:13:54] Speaker 00:
I'll reserve.

[00:14:07] Speaker 02:
Good morning, and may it please the court, Brendan Gantz representing the United States.

[00:14:11] Speaker 02:
Ms.

[00:14:11] Speaker 02:
Ferguson received a fair trial and this court should affirm her convictions.

[00:14:15] Speaker 02:
Her various unpreserved claims do not establish plain error or even that any prosecutorial misconduct occurred.

[00:14:22] Speaker 02:
Ms.

[00:14:22] Speaker 02:
Ferguson's principal contention concerning the evidence of materiality

[00:14:25] Speaker 02:
is wrong on the facts and also simply ignores the legal standard for materiality set forth in this court's precedence.

[00:14:31] Speaker 02:
I don't think there is now or ever has been a genuine dispute in this case about materiality properly understood.

[00:14:38] Speaker 02:
And I want to underscore given some of the

[00:14:40] Speaker 02:
Rhetoric we've heard this morning that Miss Ferguson's arguments simply rely on distortions of the trial record.

[00:14:46] Speaker 02:
For example, it is not disputed that Miss Ferguson used the employee ID number of a Mesa pilot to take the two flights that her counsel mentioned that she took early on in the scheme.

[00:14:57] Speaker 02:
And that later on when she made the fake badges, including a fake ID badge that showed herself as Mesa crew, she used the same employee ID number.

[00:15:05] Speaker 02:
it is also not disputed as to the critical information that needed to be entered into the spirit portal that in order to book a ticket through that portal a person had to select an airline affiliation from a drop-down menu a person had to select from a drop-down menu that they were either a pilot or a flight attendant they had to enter a verification what did she do when she that one time she used the ticket

[00:15:25] Speaker 02:
She booked it through the Spirit Portal.

[00:15:27] Speaker 03:
I know.

[00:15:27] Speaker 03:
What did she identify herself as?

[00:15:29] Speaker 02:
So the employee ID number that she used, which is what we have, is the employee ID number of a Mesa pilot named Tori Theol who testified at trial.

[00:15:38] Speaker 03:
So I didn't realize that there's a separate prompt to put pilot or flight attendant?

[00:15:43] Speaker 03:
That's right.

[00:15:44] Speaker 03:
And did she enter pilot?

[00:15:45] Speaker 02:
I don't know that the exhibit that we have tells us what she entered in that specific drop-down.

[00:15:53] Speaker 02:
We do have that she entered the employee ID number of a Mesa pilot, and she would have had to select as well an airline affiliation and enter a verification code that the portal said was provided by your airline.

[00:16:05] Speaker 03:
So my only factual question is it did.

[00:16:07] Speaker 03:
It does seem that all those IDs do look a little different.

[00:16:10] Speaker 03:
And so your friend on the other side says that they're not the same.

[00:16:14] Speaker 03:
There are noticeable differences.

[00:16:16] Speaker 03:
What are we to do with that?

[00:16:18] Speaker 02:
Well, Your Honor, what the government argued at trial was that the

[00:16:23] Speaker 02:
The IDs that Ms.

[00:16:26] Speaker 02:
Ferguson made, which are at pages 800 to 806 of the excerpts of record, looked identical to the badge that was recovered from Alicia Miller, who was one of the fraudulent fliers who flew with a fake ID badge.

[00:16:39] Speaker 02:
And if you look at those documents, and they're both in the record, the court can go and look at them themselves, as the jury was able to.

[00:16:45] Speaker 02:
the government would submit that they do look identical now obviously a fake badge for somebody who is you know for Alicia Miller is not going to be exactly identical to a fake badge for different people than this Ferguson was making fake badges for and what we're looking at with Alicia Miller's badge is a badge that was printed it was finished and printed

[00:17:04] Speaker 02:
And Mr. Felix Zucru, who printed the badges, testified that he had some difficulty getting the ones that Ms.

[00:17:10] Speaker 02:
Ferguson created to look like a real Mesa ID badge.

[00:17:13] Speaker 02:
There may have been some minor adjustments.

[00:17:16] Speaker 02:
But the court could look at those badges for itself.

[00:17:18] Speaker 02:
The jurors could look at those badges for themselves and make a determination as to whether

[00:17:22] Speaker 02:
the prosecutor's argument was correct that you can tell that one came from another.

[00:17:28] Speaker 02:
And we would submit that those badges do in fact look extremely similar and that the prosecutor's inference was correct.

[00:17:34] Speaker 02:
Now in addition that was not the only evidence.

[00:17:38] Speaker 02:
No problem.

[00:17:39] Speaker 02:
That was not the only evidence presented on this point.

[00:17:42] Speaker 02:
An FBI agent testified that badges that appeared to have been made from Ms.

[00:17:46] Speaker 02:
Ferguson's template were produced and were confiscated by the airlines and law enforcement.

[00:17:52] Speaker 02:
The defendants cross-examined that FBI agent.

[00:17:54] Speaker 02:
They did not challenge that testimony.

[00:17:56] Speaker 02:
Mesa's operations security director testified that one of the

[00:17:59] Speaker 02:
fake badges that Ms.

[00:18:01] Speaker 02:
Ferguson sent to Mr. Felix Ukwu was actually produced and confiscated, and I don't believe the defendants have challenged that testimony.

[00:18:08] Speaker 02:
So there was voluminous evidence that Ms.

[00:18:11] Speaker 02:
Ferguson did, in fact, help create these fake badges and that they were presented and confiscated by the airlines and by law enforcement.

[00:18:19] Speaker 02:
In fact, the whole reason that we have a picture of Alicia Miller's badge is because it was included in a guide that Mesa Airlines made

[00:18:26] Speaker 02:
to help gate agents distinguish between the fake IDs that were being created and a real Mesa ID.

[00:18:31] Speaker 02:
And ultimately, Mesa had to go even further and rebadge all of their 3,500-some employees in order to stop this fraud, which did stop the fraud.

[00:18:40] Speaker 02:
So that shows how big of a problem these fake badges became after the spirit policy change went into place and that the airlines were in fact being presented with these IDs and needed to take measures to address it.

[00:18:54] Speaker 02:
Ms.

[00:18:54] Speaker 02:
Ferguson's other contentions, which are similarly unpreserved and meritless, involve brief references by prosecutors to other evidence, specifically a stipulation about Hubbard Bell's role that was introduced in the defense case, and uncontroverted testimony regarding certain dangers posed by the defendant's conduct here that are not presented by legitimate buddy or companion passes.

[00:19:14] Speaker 02:
Neither contention establishes prosecutorial misconduct, let alone plain error, and Ms.

[00:19:18] Speaker 02:
Ferguson does not even contend that either of these purported errors by itself affected her substantial rights.

[00:19:23] Speaker 01:
It's a little hard to see physical danger to the public here.

[00:19:26] Speaker 01:
Would you agree?

[00:19:27] Speaker 02:
Well, the evidence was that the danger that was presented by the defendant's conduct here was that when a pilot or a flight attendant flies on another airline, airline crew is aware that a person who is traveling on their plane who's a pilot or a flight attendant, granted from another airline,

[00:19:44] Speaker 02:
But because pilots and flight attendants receive the same safety-focused training, in the event of an emergency, those pilots and flight attendant from the airline that's flying would look to those passengers to assist.

[00:19:56] Speaker 01:
How often does that happen?

[00:19:59] Speaker 02:
airline emergencies thankfully don't happen too often, but of course they can happen.

[00:20:03] Speaker 02:
And here we have people who were traveling with fake badges that identified themselves as crew.

[00:20:10] Speaker 02:
That presents clear dangers in terms of what the crew of that airline would look to them for in the event of an emergency.

[00:20:18] Speaker 01:
Sounds pretty speculative.

[00:20:19] Speaker 02:
Well it was presented in the testimony from the pilots and flight attendants who testified and I don't believe defendants the defendants controverted that testimony.

[00:20:27] Speaker 02:
Now the government also presented evidence to show that the danger that was posed by the defendants conduct here.

[00:20:32] Speaker 02:
was limited.

[00:20:33] Speaker 02:
The government elicited evidence that airline travelers would have also been vetted by the government.

[00:20:38] Speaker 02:
The government asked witnesses, did the government ever raise security red flags about any of these travelers?

[00:20:44] Speaker 02:
And the witness said no.

[00:20:46] Speaker 02:
The government also elicited testimony that there was a separate process for a pilot jump seat for one of the jump seats that's actually in the cockpit.

[00:20:57] Speaker 02:
And so these travelers wouldn't have been in the cockpit.

[00:21:00] Speaker 02:
These were cabin jump seats.

[00:21:02] Speaker 02:
And the government made all of that clear to the jury, showing the limited and qualified but still real nature of the security threat that was posed by the defendant's conduct.

[00:21:11] Speaker 02:
And some brief references to that in the course of a closing that was otherwise focused on the other harms created by the defendant's conduct and all the evidence that showed that Ms.

[00:21:20] Speaker 02:
Ferguson and Mr. Felix Ukwu were involved in this conspiracy.

[00:21:24] Speaker 02:
most powerfully, of course, their involvement in the creation of the fake badges.

[00:21:27] Speaker 02:
In the context of those 40 pages of closing and rebuttal arguments, it was not improper for the government to make some brief references to that uncontroverted testimony.

[00:21:38] Speaker 02:
If the Court has no further questions, we'll rest on our arguments and the arguments made in our briefs.

[00:21:42] Speaker 02:
Thank you, Your Honors.

[00:21:43] Speaker 03:
Thank you, Counsel.

[00:21:48] Speaker 00:
Thank you, Your Honors.

[00:21:49] Speaker 00:
I'll be brief.

[00:21:50] Speaker 00:
One, I just want to clarify a few factual points.

[00:21:53] Speaker 00:
Both this court and the government said she entered, she made, she entered the portal.

[00:21:58] Speaker 00:
There's no evidence of that whatsoever.

[00:22:00] Speaker 00:
The evidence is

[00:22:01] Speaker 00:
that someone booked her a ticket and Willie Harvey described how Hubbard Bell made the ticket reservations in the companion case.

[00:22:08] Speaker 00:
There's no evidence one way or the other that she ever logged on to any computer, made anything, so the idea that we so casually say what she entered is bereft of any evidence at all.

[00:22:17] Speaker 00:
A ticket was booked for her.

[00:22:19] Speaker 00:
Two, same evidence.

[00:22:21] Speaker 00:
There's no evidence that she made any badges.

[00:22:23] Speaker 00:
Again, look at Exhibits 19 and 23.

[00:22:26] Speaker 00:
She gets a copy set, she forwards the same set.

[00:22:29] Speaker 00:
It's the same IDs.

[00:22:31] Speaker 00:
So there's no making.

[00:22:32] Speaker 00:
It's the same day.

[00:22:33] Speaker 00:
It's an hour later.

[00:22:34] Speaker 00:
So she's not making anything.

[00:22:35] Speaker 00:
Exhibit 27 is Felix saying, I'm making the IDs.

[00:22:40] Speaker 00:
I'm paraphrasing, your honor, for rhetorical effect.

[00:22:43] Speaker 00:
But look at 27.

[00:22:44] Speaker 00:
Look at these exhibits.

[00:22:45] Speaker 00:
She didn't make anything.

[00:22:46] Speaker 00:
He asked her to buy a printer.

[00:22:48] Speaker 00:
She returns the money.

[00:22:49] Speaker 00:
He buys the printer.

[00:22:52] Speaker 00:
There's no evidence she made anything, printed anything.

[00:22:55] Speaker 00:
She forwarded stuff.

[00:22:56] Speaker 00:
Let's stick with the evidence they introduced.

[00:22:59] Speaker 00:
Let's be honest about the evidence.

[00:23:03] Speaker 00:
Time is up if you want to wrap up.

[00:23:05] Speaker 00:
The two things I'll say to wrap up is I think the FBI agents said they seized one single ID.

[00:23:11] Speaker 00:
I don't know where they're getting hundreds.

[00:23:12] Speaker 00:
I'd ask to look at that evidence again.

[00:23:14] Speaker 00:
And the idea that the deal purported danger, besides being speculative, has anything to make it more likely or not that the charged crimes were committed.

[00:23:23] Speaker 00:
It's completely irrelevant.

[00:23:25] Speaker 00:
It's emotional and prejudicial.

[00:23:27] Speaker 00:
It's served no purpose.

[00:23:28] Speaker 00:
Thank you for your time, Your Honor.

[00:23:30] Speaker 03:
Thank you, Counsel.

[00:23:31] Speaker 03:
The court is in recess until this afternoon.