[00:00:00] Speaker 04:
Good morning, and welcome.

[00:00:01] Speaker 04:
Thank you so much for being here.

[00:00:05] Speaker 04:
Judge Bay and I would like to thank all of our Pioneer Courthouse colleagues for being such wonderful hosts.

[00:00:13] Speaker 04:
And today, we have submitted a number of matters on the briefs and record.

[00:00:19] Speaker 04:
And those cases are United States versus Pranzetti, United States versus Dibby, McKay versus Bledworth,

[00:00:29] Speaker 04:
And in the afternoon calendar, Fett-Kether versus Progressive Northwestern Insurance Company.

[00:00:34] Speaker 04:
So that leaves two cases remaining for argument.

[00:00:37] Speaker 04:
The first one is United States versus, and is the last name pronounced Gray-Bale or Gray-Bell?

[00:00:42] Speaker 04:
How is the last name pronounced?

[00:00:46] Speaker 04:
Gray-Bell.

[00:00:47] Speaker 04:
Okay.

[00:00:47] Speaker 04:
Thank you.

[00:00:48] Speaker 04:
Is that correct?

[00:00:49] Speaker 04:
All right.

[00:00:50] Speaker 04:
Well, then if you can come forward, please.

[00:01:00] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:01:01] Speaker 00:
Curt Hermanson on behalf of Mr. Grable.

[00:01:06] Speaker 00:
Because 404B evidence carries with it the inherent potential to see a defendant found guilty for who he is rather than what he did, courts must take the appropriate care to see that that does not happen.

[00:01:26] Speaker 00:
and in considering the four oh four b analysis this court has said that four oh three is an automatic part of that analysis in this case the victim

[00:01:40] Speaker 00:
had not testified yet when the expert testified.

[00:01:45] Speaker 00:
So the expert testified first and set the table of propensity evidence of pattern that defined the trial.

[00:01:57] Speaker 00:
The Supreme Court has said that the judge is not a mere moderator, but the governor of the trial for purposes of making sure that the trial is fair.

[00:02:10] Speaker 00:
In this case, the district court should have identified the 404B purpose and found whether it was material based on whether it was at issue.

[00:02:20] Speaker 00:
So in order to determine materiality, one must look at what is at issue in the trial.

[00:02:27] Speaker 00:
And the materiality that was found was nothing that was at issue in trial.

[00:02:33] Speaker 00:
This court, en banc in Curtin,

[00:02:36] Speaker 00:
said, we hold that as a matter of law that a court does not properly exercise its balancing discretion under 403 when it fails to place on the scales.

[00:02:48] Speaker 04:
You would agree that the expert testimony would have been relevant to either Mr. Grable or the person that Mr. Grable says was the actual perpetrator, Jackson the brother, correct?

[00:03:03] Speaker 04:
Wouldn't that mitigate any prejudice, the fact that it would be applicable to either?

[00:03:06] Speaker 00:
There is some level of, to the extent it's relevant, the probative value is greatly outweighed by the undue prejudice.

[00:03:18] Speaker 00:
In this case, there was no battered woman syndrome diagnosis.

[00:03:24] Speaker 00:
There was simply an expert who started off, and the district court allowed the expert to testify without narrowly circumscribing the expert's testimony.

[00:03:35] Speaker 00:
without hearing the victim.

[00:03:38] Speaker 04:
But haven't we and many other courts allowed expert testimony on domestic violence to assist jurors in understanding a victim's testimony, the dynamics of domestic violence and that relationship?

[00:03:52] Speaker 00:
Absolutely, but those cases, they're factually different and distinct from this case.

[00:03:58] Speaker 00:
So in this case, what we didn't have was a victim who recanted.

[00:04:06] Speaker 00:
And so instead, what was allowed is calling the expert first, assuming that the victim either isn't going to testify or is going to recant.

[00:04:18] Speaker 00:
And although district courts can't control, can't dictate the order in which witnesses are called, I just got off a two-week trial in DC where Judge Moss told me, you want your expert to say that your client has memory problems.

[00:04:32] Speaker 00:
I'm not going to allow that unless your client testifies.

[00:04:37] Speaker 00:
I'm going to narrowly circumscribe what that expert can testify to unless you call your client first.

[00:04:43] Speaker 00:
I can't make you do that.

[00:04:44] Speaker 00:
You don't have to call your client.

[00:04:46] Speaker 00:
But I'm just telling you, there is going to be a heavy thumb on the scale limiting what this expert can say.

[00:04:52] Speaker 04:
But she did testify that she was blaming herself for starting the fight with Grable.

[00:04:59] Speaker 04:
She hit him first.

[00:05:00] Speaker 04:
She didn't want to go to the police.

[00:05:02] Speaker 04:
She wanted to reschedule the meeting with the police.

[00:05:05] Speaker 04:
She didn't feel comfortable talking with them.

[00:05:07] Speaker 04:
She didn't want to meet with them at all.

[00:05:11] Speaker 00:
Yes, all of that is true, and I think that makes her more credible.

[00:05:14] Speaker 00:
Because she got on the stand, and she testified, and she said, Grable is the one who hit me.

[00:05:21] Speaker 00:
The reason that that isn't super prejudicial, overwhelming evidence is in December.

[00:05:26] Speaker 00:
And the key event here is December.

[00:05:29] Speaker 00:
In December, her brother, Keith Jackson, hit her repeatedly in the face with a baseball bat.

[00:05:36] Speaker 00:
And he had assaulted her previously, and she recanted that.

[00:05:39] Speaker 00:
in december when she told the police my brother's the one who did it my brother's the one who hit me with the baseball bat and then on further questioning that she said well what about the um officer medina said what about grable i said well grable hit me too but keith jackson

[00:05:57] Speaker 00:
is the one who's hitting me in the face.

[00:06:00] Speaker 00:
Keith Jackson, the person who I live with, is the one who caused all this damage.

[00:06:05] Speaker 00:
And the police said, well, we're going to take him back home.

[00:06:09] Speaker 04:
He called 911 and said it was Mr. Grable, correct?

[00:06:12] Speaker 00:
She did call 911 and said it was Mr. Grable in May.

[00:06:15] Speaker 00:
So what I'm getting at is that... Isn't May the charged assault?

[00:06:21] Speaker 04:
So why is it not relevant that on the day of the charged assault,

[00:06:27] Speaker 04:
She called 911 saying it was Mr. Grable.

[00:06:30] Speaker 00:
It is relevant.

[00:06:31] Speaker 04:
Was it consistent with that when the police arrived?

[00:06:37] Speaker 00:
The whole trial came down to who did it.

[00:06:39] Speaker 00:
Was it Mr. Grable or Mr. Jackson?

[00:06:40] Speaker 00:
And what I'm saying is that either is plausible because the reason she identified Mr. Grable is she had previously identified Keith Jackson, and the police did not protect her.

[00:06:52] Speaker 00:
And she lived with Keith Jackson, not with Mr. Grable.

[00:06:54] Speaker 00:
So her relationship with Mr. Grable is not a domestic violence, your typical battered woman syndrome, domestic violence situation where she can't get away.

[00:07:02] Speaker 00:
This is a person who doesn't work, who doesn't drive, who's addicted to alcohol and drugs, and who lives with her grandmother and with her other family members, including Keith Jackson.

[00:07:13] Speaker 00:
When the police returned him to that house and returned her to that house,

[00:07:17] Speaker 00:
It only makes sense that she wouldn't identify him and one of the government's witnesses her cousin is Works for the the tribal police the tribal prosecutor So the whole family they're all cousins.

[00:07:32] Speaker 00:
They're all related It's not a safe environment for her to point the finger at her brother So I think and I think your honor points to something very important the 911 call her her statements and

[00:07:46] Speaker 00:
the government could have presented

[00:07:49] Speaker 00:
strong evidence and focused on May 16, the charge defense.

[00:07:55] Speaker 00:
Instead, they chose to call the expert first and then bookend the case with a number of propensity witnesses to talk about the prior events.

[00:08:07] Speaker 00:
So the prior events became a trial within a trial, and that violated 403.

[00:08:12] Speaker 00:
And this court's review is de novo because the district court never engaged in a 403

[00:08:17] Speaker 00:
analysis and a 403 analysis has to be informed by what the issues are at trial and because the expert just got free rein in testifying without knowing how the victim would testify and because then the end of the trial was all about propensity, the jurors were left

[00:08:38] Speaker 04:
easily confused and what do you think is your stronger argument the expert testimony of the domestic violence expert being excluded or the prior acts which is a prior stronger you seem to be focusing on the expert testimony that right

[00:08:54] Speaker 00:
Well, the court's questions were there, so I wanted to respond to the court's questions.

[00:08:58] Speaker 00:
I think the 4-4B analysis is stronger, but I see them dovetailing into each other and supporting each other because of the way the table was set.

[00:09:06] Speaker 00:
The table was set by the expert in the propensity and the pattern.

[00:09:11] Speaker 04:
But if the defense contested whether she had suffered substantial bodily injury,

[00:09:17] Speaker 04:
and that requires analysis of the severity of her pain, then why is it not a relevant comparison if she told the nurse after the charged assault that this was the worst pain she could ever imagine, 10 out of 10, to know what else has she suffered that she said this particular assault was the worst pain ever?

[00:09:38] Speaker 04:
It feels like the door was opened.

[00:09:41] Speaker 04:
If you're going to challenge whether

[00:09:45] Speaker 04:
this individual suffered sufficient pain, then that pain comparison evidence seems relevant.

[00:09:52] Speaker 04:
Is that not right?

[00:09:53] Speaker 00:
So I think that gets both to the prejudicial pictures that came in of the prior, which would confuse the jury because the horrific pictures are from the prior offenses, which would confuse the jury with the picture of... But what about just the prior incidences themselves?

[00:10:08] Speaker 00:
So the prior incidences are the fact that she suffered cracked ribs that were cracked again

[00:10:16] Speaker 00:
or that were already injured, and then she suffered more injuries, is relevant to her pain assessment.

[00:10:22] Speaker 00:
Her 10 out of 10 is relevant to her pain assessment.

[00:10:25] Speaker 00:
That evidence came in.

[00:10:26] Speaker 00:
The medical evidence came in of her pain.

[00:10:29] Speaker 00:
Her family's testimony about how hard it was for her to get into the car, how she was sleeping.

[00:10:35] Speaker 00:
There was lots of evidence about her pain level.

[00:10:41] Speaker 00:
But what happened instead was,

[00:10:45] Speaker 00:
And the government had that evidence.

[00:10:47] Speaker 00:
They didn't need to then put in these graphic pictures of the priors.

[00:10:51] Speaker 00:
And it's very confusing who actually caused the prior injuries.

[00:10:55] Speaker 00:
The prior injuries were in both instances, in December and in March.

[00:11:02] Speaker 00:
Certainly in December it was Keith Jackson.

[00:11:04] Speaker 00:
In March, who did at least the vast majority of what happened, in March there was a complaint and the police went out because of a fight with her brother.

[00:11:13] Speaker 00:
So we don't even know from the evidence who caused those injuries, and that shouldn't be the question.

[00:11:19] Speaker 04:
Instead, the jurors were left to convict... But wouldn't it still be... You were challenging at trial that this person did not suffer extreme physical pain, and so the government could not meet the elements of serious bodily injury.

[00:11:36] Speaker 04:
So I guess you're conceding that the fact that she may have had these injuries before as a comparative severity of pain analysis is okay or fair, seems relevant, right?

[00:11:49] Speaker 04:
You're just saying the photos were overly prejudicial.

[00:11:52] Speaker 00:
that and all of this speculative trial within a trial about who caused the prior injuries.

[00:11:57] Speaker 00:
Because the jurors were left with the impression that it was Mr. Grable when it was her brother.

[00:12:03] Speaker 00:
And what's important for a pain assessment is she said it was 10 out of 10.

[00:12:08] Speaker 00:
She made excited utterances about how much it hurt.

[00:12:12] Speaker 00:
There was medical evidence about how much it hurt.

[00:12:14] Speaker 00:
And she had family members testify about how much it hurt.

[00:12:17] Speaker 00:
Your Honor, may I please reserve the rest of my time?

[00:12:20] Speaker 03:
please you have a question though and we'll give you enough time for rebuttal but there's a if your defense strategy or one of your primary theories was that her brother caused the injury and you had tried to introduce evidence that the brother had committed the December attack would that not have opened the door to a

[00:12:46] Speaker 03:
Evidence about it being your client who did that or had assaulted her before as well?

[00:12:52] Speaker 00:
So that's a great point, and that's a counterfactual, right?

[00:12:55] Speaker 00:
So unlike a lot of the cases that the government relies on, where the defense put on a vigorous, and currently they describe it as an aggressive defense, that can open the door under 405 not to the specific acts, but to character or propensity for violence.

[00:13:12] Speaker 00:
So yes, if that counterfactual had happened, and he was a potential witness, he was on the witness list, but he was not called,

[00:13:20] Speaker 03:
So that would have been a different situation Jackson was not called or correct Keith Jackson was on the defense witness list But was not called so that could have happened but didn't well I guess because I mean it is counterfactual and I'm trying to understand Because at the time that the motion was being argued I think you represented to the court that your defense would be to challenge the identity of the

[00:13:47] Speaker 03:
attacker that you weren't going to, I think you were saying that the intent was not at issue and there was a representation that the defense would focus on the identity of the attacker and the severity of the injury.

[00:14:01] Speaker 00:
There was no direct evidence of who did it and so it came down to, you know, it

[00:14:11] Speaker 00:
Was she afraid to identify her brother and instead was left with identifying her boyfriend?

[00:14:16] Speaker 00:
Or as the government's theory was, no, she told the truth when she called 911.

[00:14:21] Speaker 00:
And the jury wasn't given the opportunity to focus on the facts of May 16th and instead were lured by the 404B to not like Mr. Grable because he had hit her in the face before and to convict him based on that.

[00:14:36] Speaker 04:
But the court gave limiting jury instructions that you couldn't consider it for propensity purposes.

[00:14:42] Speaker 04:
And the prosecution seemed very careful in opening and closing to sort of reiterate that instruction.

[00:14:48] Speaker 04:
And juries are presumed to follow instructions.

[00:14:52] Speaker 04:
So how should we deal with that?

[00:14:54] Speaker 00:
So jurors are presumed to follow instructions, but here it was clear, we don't even need clear, but I think the error was clear that the basis for giving in the 404B first intent, that should be a non-starter because

[00:15:09] Speaker 00:
according to the government's own brief, he punched her, kicked her, pulled her to the ground, punched her in the abdomen, hit her and slammed her head to the ground.

[00:15:18] Speaker 00:
So if that, if Mr. Grable is the person who did that, intent is not an issue.

[00:15:23] Speaker 04:
Okay, what if we agree with you that the district court got it wrong on intent, but wouldn't it be allowed for a reaction to physical assault?

[00:15:31] Speaker 04:
There's a lot of case law, Berkman, Sinigini,

[00:15:36] Speaker 00:
That such testimony is allowed to show and explain a reaction that seems counterintuitive to physical assault So I think it's it's I don't know if we're getting into expert realm here, but I think it's well within in jurors knowledge that And again, I'll repeat I think it's more credible and we didn't need the expert saying that

[00:16:02] Speaker 00:
testimony that, you know, she identified Mr. Grable because she was afraid of her brother.

[00:16:07] Speaker 00:
As far as her reaction, so first of all, the court gave a limiting instruction.

[00:16:11] Speaker 00:
It didn't say reaction.

[00:16:13] Speaker 00:
It said the court's limiting instruction said state of mind or intent.

[00:16:18] Speaker 00:
So that's what the jury was left with.

[00:16:19] Speaker 00:
The court's instruction said accident or mistake.

[00:16:22] Speaker 00:
And the court's instruction said assessing the credibility, which might be what the court's pointing to.

[00:16:27] Speaker 00:
So is she credible when she identifies Mr. Grable?

[00:16:32] Speaker 00:
But nothing the expert said and nothing about the prior incidents go to her credibility.

[00:16:41] Speaker 00:
And absence of mistake, again, he kicked her and punched her in the abdomen and had her head slammed to the ground a couple of times.

[00:16:48] Speaker 00:
That's not like the other cases where maybe he was trying to scare the person or had a different intent.

[00:16:54] Speaker 00:
And as far as her credibility, there was no battered woman syndrome diagnosis.

[00:17:00] Speaker 00:
There was no issue about her going back to Graybull.

[00:17:04] Speaker 00:
She didn't live with Graybull.

[00:17:06] Speaker 00:
And most importantly, she did not recant.

[00:17:10] Speaker 04:
All right.

[00:17:11] Speaker 04:
Thank you.

[00:17:11] Speaker 04:
You've gone over your 15 minutes by a minute and 10 seconds, but I'll give you a minute for rebuttal.

[00:17:17] Speaker 04:
And then, of course, you can answer any of my colleagues' questions.

[00:17:19] Speaker 04:
Thank you.

[00:17:26] Speaker 02:
May it please the court, Suzanne Miles for the United States.

[00:17:30] Speaker 02:
At this trial, the defense drew two battle lines for the jury, one

[00:17:36] Speaker 02:
that the victim was lying when she said that it was Marion Grable who hit her on May 16.

[00:17:43] Speaker 02:
And second, that she misrepresented the severity of her injuries.

[00:17:47] Speaker 02:
Those were the two questions that the jury had to assess, and both of them required them to look very carefully at the victim's credibility.

[00:17:55] Speaker 03:
How does the identity of the attacker for the prior assaults have any relationship to the severity of her injuries?

[00:18:03] Speaker 03:
I mean, I understand why saying she experiences severe injury in the past is relevant.

[00:18:08] Speaker 03:
I understand why past evidence of past injury is relevant, but why was the identity of the assailant at all

[00:18:15] Speaker 03:
immiscible under that theory.

[00:18:18] Speaker 02:
So the different theories acted in some ways independently of one another.

[00:18:23] Speaker 02:
So for the pain assessment theory showing the pictures of the injuries and describing what her prior injuries were,

[00:18:30] Speaker 02:
was the relevant piece of those.

[00:18:32] Speaker 02:
Who gave her those injuries really wasn't relevant to that.

[00:18:36] Speaker 03:
So all of the testimony about it being Mr. Grable who committed those injuries, it's not admissible for the purpose of showing injury?

[00:18:47] Speaker 02:
Not for the purpose of her saying this was extreme physical pain.

[00:18:50] Speaker 02:
No, that was admissible for other purposes.

[00:18:52] Speaker 03:
OK, so what purpose is your contention that's actually admissible for?

[00:18:57] Speaker 02:
It's admissible for the credibility of her identification of Grable as her assailant for May 16th.

[00:19:05] Speaker 02:
Basically, I'm sorry, Your Honor, if you have a question.

[00:19:07] Speaker 03:
I mean, it's a very fuzzy line between bolstering her credibility because of the rationale that he has a propensity

[00:19:16] Speaker 03:
to attack, right?

[00:19:17] Speaker 03:
I mean, how do you actually separate that?

[00:19:21] Speaker 02:
I think it's easily separated when you look at Berkman and some of the other cases involving domestic violence victims.

[00:19:28] Speaker 02:
So really, what the jury had to figure out is, was it believable for this woman to come forward and say, this man hit me, beat me, punched me 10 times, slammed my head into the ground, kicked me in the ribs, caused extreme physical pain, and I still love him.

[00:19:47] Speaker 02:
And I want to go back to him.

[00:19:49] Speaker 02:
And he's a kind, caring man.

[00:19:51] Speaker 02:
And all of the other things that she said about him that indicated that she still felt devoted to him.

[00:19:57] Speaker 02:
That's the lack of concert that this court has noted over and over again when it comes to domestic violence cases.

[00:20:07] Speaker 02:
And that goes to the heart of her credibility.

[00:20:09] Speaker 02:
How can those two things be true at the same time?

[00:20:12] Speaker 02:
And that became more important.

[00:20:13] Speaker 03:
Why do you need multiple attacks to make that point then?

[00:20:16] Speaker 03:
I mean, you could have had, I mean, presumably maybe the first time anyone ever experiences that.

[00:20:22] Speaker 03:
There's that question.

[00:20:23] Speaker 03:
You had your expert say that is not unusual.

[00:20:29] Speaker 03:
Why would you need the prior bad acts to make that point?

[00:20:35] Speaker 02:
It went to the cycle of violence, which is what the expert

[00:20:39] Speaker 02:
instructed the jury about, that this can be something that happens repeatedly and that victims still go back to their assailants at different times.

[00:20:50] Speaker 02:
And ultimately, that's a question of weighing, which the district court carefully did.

[00:20:56] Speaker 02:
The defense says that the court didn't engage in a 403 analysis.

[00:20:59] Speaker 02:
That's simply not true.

[00:21:00] Speaker 02:
At page 453 of the record, you can see that the district court balanced

[00:21:05] Speaker 02:
the probative value and the multiple different uses of the prior act evidence against the prejudicial effect, which is exactly what your honor is looking at.

[00:21:16] Speaker 02:
And it's that determination that this court reviews for an abuse of discretion.

[00:21:21] Speaker 01:
Why?

[00:21:22] Speaker 01:
I'm having a great deal of difficulty understanding your argument on credibility.

[00:21:27] Speaker 01:
The question here is, who assaulted her?

[00:21:30] Speaker 01:
She testified both on her 9-11 and at the trial that it was Grable.

[00:21:38] Speaker 01:
Why did she have to bring in the prior cases to establish her credibility as to what she said on 9-11 and what she said on the stand, other than to paint Grable as a serial assaulter?

[00:21:54] Speaker 01:
And therefore, the classical propensity testimony, if he did it before, he did it now.

[00:22:01] Speaker 01:
To me, it's clear error.

[00:22:03] Speaker 02:
Well, Your Honor, I'd like to answer that if I can in two different ways.

[00:22:06] Speaker 02:
First, I think that the evidence that you're pointing to supports our harmless error analysis, that the jury did hear the consistency.

[00:22:14] Speaker 01:
That's a different issue.

[00:22:15] Speaker 01:
But don't tell me about credibility.

[00:22:18] Speaker 01:
I mean, do tell me about credibility.

[00:22:20] Speaker 02:
I would like to tell you about credibility, if I may, Your Honor.

[00:22:23] Speaker 02:
I do think that credibility, if we look at Berkman, if we look at Lewis, if we look at the other cases that involve this, what 404B says is that you can use this evidence for anything other than propensity.

[00:22:38] Speaker 02:
The jury was specifically instructed that it couldn't be used for propensity.

[00:22:42] Speaker 01:
Walk me through the rational basis that talking about this man as assaulting her before makes her more credible on the stand as to her testimony that he assaulted her on this occasion.

[00:22:57] Speaker 02:
I think we need to put it in context of what the defense was arguing too.

[00:23:01] Speaker 02:
So what the jury was trying to figure out as the defense had posited it to them was who hit her on May 16th, right?

[00:23:08] Speaker 02:
Was it the brother?

[00:23:09] Speaker 01:
Jackson.

[00:23:10] Speaker 02:
Right?

[00:23:10] Speaker 02:
Who had also hit her before?

[00:23:12] Speaker 02:
Or was it Grable?

[00:23:14] Speaker 02:
And so when looking at that, there's a couple of factors that come in.

[00:23:18] Speaker 03:
The problem with that, sorry to interrupt.

[00:23:21] Speaker 03:
That's okay.

[00:23:22] Speaker 03:
I understand, but we're trying to deal with this situation at the time that the judge admitted this evidence that was not necessarily how the trial was going to go.

[00:23:35] Speaker 03:
And there's a fair argument.

[00:23:36] Speaker 03:
The only reason why the trial went that way is because the judge allowed you to focus on the prior bad acts to begin with.

[00:23:46] Speaker 02:
I disagree with that in terms of that this was a defense that was churned up because of the pretrial rulings.

[00:23:56] Speaker 02:
I think there was no doubt that this woman had been beaten on May 16th.

[00:24:01] Speaker 02:
Her injuries were significant.

[00:24:03] Speaker 02:
And so it was always going to be a question of who did it.

[00:24:06] Speaker 02:
I don't think that that was because of the 404B and that the two people in her life who had beaten her were her brother and the defendant.

[00:24:18] Speaker 02:
So I think it was always going to be the defense.

[00:24:21] Speaker 03:
Why understand a situation in which if...

[00:24:26] Speaker 03:
at trial, there had been defense and attempted to say it wasn't Grable, it was her brother.

[00:24:33] Speaker 03:
And you know it was her brother because her brother attacked her before.

[00:24:38] Speaker 03:
I think that would have opened the door wide open then to this evidence of prior bad acts for the identity issue.

[00:24:45] Speaker 03:
But the problem I'm facing is that at the time that the judge made this decision, that hadn't happened yet.

[00:24:56] Speaker 03:
Nobody knew that was going to happen.

[00:24:57] Speaker 03:
And instead, all the prior evidence came in first.

[00:25:02] Speaker 04:
At what point did the defense put you on notice, the government on notice, that it would be basically contesting identity?

[00:25:09] Speaker 02:
During the pretrial litigation, they said that identity was going to be the core of their defense.

[00:25:14] Speaker 04:
So it wasn't something you learned first at trial?

[00:25:16] Speaker 02:
It wasn't.

[00:25:17] Speaker 02:
Although, I will say that right out of the gate in opening statement, what the defense said is,

[00:25:23] Speaker 02:
that this woman lives in a household that is filled with violence, that her brother beats her, and that he beat her this time, and she was looking for a way of covering for him.

[00:25:33] Speaker 02:
So immediately, in opening statement, we knew exactly what the argument was going to be.

[00:25:39] Speaker 02:
And if you look at the government's opening statement before that, we walked a very tight line.

[00:25:43] Speaker 02:
in terms of referencing the prior bad act evidence.

[00:25:46] Speaker 02:
You can see that at page 267.

[00:25:49] Speaker 02:
What we said specifically to the jury is you are going to hear about some other acts.

[00:25:55] Speaker 02:
You may not use them.

[00:25:56] Speaker 02:
The court is going to tell you that you cannot use those.

[00:25:59] Speaker 02:
to say that the defendant is a bad guy, he must have done this bad thing.

[00:26:03] Speaker 02:
We are asking you to consider that evidence because we want you to look at the context in which the victim lives and how her testimony is going to come out.

[00:26:11] Speaker 04:
Because the government was on notice that this was going to be an identity defense, wasn't it a mistake then for the district court to admit this for purpose of intent, lack of accident, or mistake?

[00:26:21] Speaker 04:
Those seem like the wrong purposes.

[00:26:23] Speaker 04:
Wouldn't you agree if identity is the issue?

[00:26:26] Speaker 02:
So I don't think so, and I think it goes back to trying to answer Judge Bea's question and Judge Sung's questions, which I'd be happy.

[00:26:32] Speaker 02:
I want to give a little bit more context.

[00:26:34] Speaker 02:
Maybe yes, but I think no.

[00:26:36] Speaker 02:
And the answer is because what the jury was trying to figure out is who hit her on May 16th.

[00:26:44] Speaker 02:
The question became who was the most plausible person to have done this.

[00:26:50] Speaker 02:
So if the evidence came in that the brother had beat her before and he was violent towards her and the other option was the defendant and there was no context to their relationship, there was no indication that this was a contentious relationship,

[00:27:06] Speaker 02:
that there had been any violence whatsoever, then the jury would have been left with half the story.

[00:27:12] Speaker 02:
And what Old Chief tells us is that we don't have to, the government doesn't have to present, in order to be fair, we don't have to present the jury with a completely pared down version of facts that leaves them with untenable gaps that they need to then try to fill in.

[00:27:29] Speaker 02:
And so what the jury would have had then was no context,

[00:27:32] Speaker 02:
about the contentiousness of this relationship.

[00:27:35] Speaker 02:
A lot of information about her brother as a violent domestic violence abuser.

[00:27:42] Speaker 04:
But that still doesn't explain why this is relevant for lack of accident or mistake or for intent.

[00:27:48] Speaker 04:
None of those are at issue.

[00:27:49] Speaker 02:
So what it comes down to, I think, for those is that this wasn't when she took the stand and said this was my fault.

[00:27:58] Speaker 02:
He didn't mean to do this.

[00:28:01] Speaker 02:
This was

[00:28:02] Speaker 02:
things just got out of hand, we were both drinking.

[00:28:05] Speaker 02:
All of that was part of the fabric of this case as well.

[00:28:08] Speaker 02:
And so while I think that intent and lack of accident are the least probative of all of the value that came out of this, I don't think it was negligible.

[00:28:18] Speaker 02:
I think just like in Berkman and just like actually more like Lewis, which is that Fourth Circuit case,

[00:28:24] Speaker 02:
where the Fourth Circuit said the fact that this defendant has made racially inappropriate comments to the victim before gives the jury context for what that relationship is and allows them to see that the defendant would have the state of mind even in a general intent assault crime.

[00:28:46] Speaker 04:
But this general intent crime doesn't require you to prove intent, right?

[00:28:51] Speaker 02:
Well, it doesn't require us to prove that he had the intent to injure.

[00:28:55] Speaker 02:
But it does require that we show that he meant to do what he did and that he knowingly hit her and that doing so was wrong.

[00:29:04] Speaker 02:
Laura and... It wasn't that issue.

[00:29:06] Speaker 04:
They're not challenging.

[00:29:07] Speaker 04:
They're just saying it wasn't him.

[00:29:09] Speaker 02:
Well, but in essence, that's true.

[00:29:11] Speaker 02:
What they were saying is it wasn't him.

[00:29:13] Speaker 02:
You shouldn't believe it was him because in part of that, she loves him.

[00:29:18] Speaker 02:
She wants to go back to him.

[00:29:20] Speaker 02:
She thinks he's an incredibly kind man.

[00:29:22] Speaker 02:
We have that minimizing that came in.

[00:29:25] Speaker 02:
And so understanding his state of mind, the contentiousness of their relationship, that the fabric of their relationship included violence, provided background narrative information that gave the jury

[00:29:37] Speaker 02:
a more complete picture of what was going on in this relationship and made it more probable than not, which is the relevance standard.

[00:29:46] Speaker 02:
It doesn't have to be convincing.

[00:29:47] Speaker 02:
It doesn't have to be the only evidence.

[00:29:49] Speaker 02:
It needs to be more probable than not.

[00:29:51] Speaker 01:
It seems to me that if the question is who did it, the fact that the defendant is a kind and loving man doesn't go to he didn't do it.

[00:30:03] Speaker 02:
So I see it slightly differently, Your Honor.

[00:30:05] Speaker 02:
I think if you were in a relationship with, let's just say with your brother, and the two of you have never had an argument in your life, you've never had crosswords, you've never once seen anything except for eye to eye, and then he accuses you of hitting him,

[00:30:24] Speaker 02:
then somebody trying to decide whether that's a credible accusation against you, given the context of your relationship, is going to judge that differently than if they know that you've had an ongoing battle for your entire life.

[00:30:37] Speaker 02:
It just provides different context for the credibility of her saying, this man hit me.

[00:30:44] Speaker 02:
when what the defense was trying to say is that she was covering up for her brother.

[00:30:48] Speaker 02:
And so it would be also a credible thing for the jury to look at her evidence, look at her testimony, and say she wants to cover up for her brother.

[00:30:57] Speaker 02:
This man has never actually done anything.

[00:31:00] Speaker 02:
So she's accusing him because she feels facing family pressure to do it, which is entirely what the defense was saying.

[00:31:07] Speaker 02:
She's lying.

[00:31:08] Speaker 02:
And so when she takes the stand and tries to walk back that accusation, to pull back on it, to try to still limit how much she is saying about this defendant, that makes

[00:31:25] Speaker 02:
It makes it more important to understand the context of their relationship, the cycle of violence, what happened between the two of them, and why she may be walking back her accusations against him and minimizing for a reason other than the fact that he didn't do it, which is what the defense was trying to convince the jury of.

[00:31:48] Speaker 04:
So for 404B, evidence for identity, you have to show similarity between the prior acts and the charged offense.

[00:31:57] Speaker 04:
So what are the similarities here, either in terms of the method of the assault, the injury, circumstances leading up?

[00:32:04] Speaker 04:
What is there that is sort of a signature that would connect these different acts?

[00:32:10] Speaker 02:
Well, I'll say, first of all, that the defense didn't challenge similarity.

[00:32:14] Speaker 02:
And so it wasn't something that the district court concentrated on.

[00:32:16] Speaker 02:
Did they have to?

[00:32:18] Speaker 04:
The district court admitted it for intent and lack of mistake and accident.

[00:32:23] Speaker 02:
That's true.

[00:32:23] Speaker 02:
Not for modus operandi, but it's true.

[00:32:26] Speaker 02:
And similarity is one of the components.

[00:32:28] Speaker 02:
And the similar aspects here are that all three of these arguments, or all three of these injuries were done in basically an argument between the two of them.

[00:32:40] Speaker 02:
Most of the time alcohol was involved, or at least I think all three times alcohol was involved.

[00:32:47] Speaker 02:
hit her in the face.

[00:32:49] Speaker 02:
We didn't ask the jury, though, to look for a signature in terms of his method of beating.

[00:32:55] Speaker 03:
You're arguing identity only as an alternative ground on appeal.

[00:33:00] Speaker 02:
That's right.

[00:33:00] Speaker 02:
Right.

[00:33:01] Speaker 02:
I mean, the other aspects of why this information was relevant is certainly stronger.

[00:33:07] Speaker 02:
But at the end of the day.

[00:33:08] Speaker 03:
And are you saying it's stronger because of the high standard for similarity required to show identity?

[00:33:18] Speaker 02:
I guess what I'm saying is that this wasn't used as an MO.

[00:33:22] Speaker 02:
So this information wasn't being used to show that he had a signature and that this fit that particular signature.

[00:33:28] Speaker 02:
This was a pretty run-of-the-mill, although very significant, beating.

[00:33:35] Speaker 02:
Your Honor, I've gone over time.

[00:33:37] Speaker 02:
I'm happy to answer any other questions, but otherwise.

[00:33:41] Speaker 04:
Let me see if my colleagues have any more questions.

[00:33:43] Speaker 04:
No, I have no questions.

[00:33:44] Speaker 04:
No?

[00:33:45] Speaker 04:
OK, thank you.

[00:33:45] Speaker 02:
OK, thank you.

[00:33:52] Speaker 00:
So I have a number of points.

[00:33:53] Speaker 00:
First on Breckman, that was a specific intent case.

[00:33:57] Speaker 00:
So the government relies heavily on Breckman.

[00:33:59] Speaker 00:
The government had to show that he wasn't joking.

[00:34:05] Speaker 00:
He wasn't trying to frighten her.

[00:34:07] Speaker 00:
There were two counts.

[00:34:09] Speaker 00:
They were both specific intent.

[00:34:12] Speaker 00:
The government says that ER 453 shows that there was a 403 balancing test.

[00:34:18] Speaker 01:
Counsel, would you please address why this isn't harmless error?

[00:34:22] Speaker 00:
This isn't harmless error, because as the Supreme Court has said, and as this Court has said, propensity evidence, the judge has the role of making sure that someone is found guilty based on what they did regarding the May incident, not based on who they are.

[00:34:40] Speaker 00:
And here, because the case started and ended with these bookends of propensity, propensity, propensity, and I'll show you two.

[00:34:50] Speaker 00:
We have these pictures that came in.

[00:34:52] Speaker 00:
So the picture of the May incident doesn't show vast, horrible injuries.

[00:35:00] Speaker 00:
The pictures from March

[00:35:03] Speaker 00:
But very confusing for the jury.

[00:35:05] Speaker 00:
This is very, very prejudicial for them to see these pictures, possibly get concerned.

[00:35:10] Speaker 00:
Like, oh, well, did he cause those?

[00:35:13] Speaker 00:
The government said that only Mr. Jackson and only Mr. Grable hit her in the face.

[00:35:19] Speaker 00:
And that's not true.

[00:35:20] Speaker 00:
There's evidence that a large woman hit her in the face and that she engages in mutual combat.

[00:35:27] Speaker 00:
I don't think it's accurate to say that she was minimizing when she said that she hit him first.

[00:35:33] Speaker 00:
The aunt also said that it was mutual, that they were fighting.

[00:35:39] Speaker 00:
Doesn't excuse anything.

[00:35:40] Speaker 00:
People should walk away, not engage in that activity.

[00:35:44] Speaker 00:
So three people beat her, not two.

[00:35:46] Speaker 00:
As the court is aware, identity was not in the limiting instruction.

[00:35:57] Speaker 00:
So bringing it for the first time on appeal is not appropriate.

[00:36:02] Speaker 00:
And the aunt corroborated that the victim also hit Mr. Grable.

[00:36:13] Speaker 00:
So I don't view her testimony as her walking back anything or minimizing anything.

[00:36:18] Speaker 00:
I mean, she expressed her true feelings about Mr. Grable.

[00:36:22] Speaker 00:
She pointed the finger at him.

[00:36:24] Speaker 00:
We've stated the reasons why we think she did that.

[00:36:27] Speaker 00:
This was a case of whodunit.

[00:36:28] Speaker 00:
And there are two plausible scenarios that should have been cleanly presented to the jury of was it

[00:36:38] Speaker 00:
Mr. Keith Jackson, and it would have been a completely different trial if the propensity stuff hadn't come in.

[00:36:44] Speaker 00:
The defense could have put on Mr. Jackson or could have put on evidence, and then it would have been a different trial about who did it.

[00:36:53] Speaker 00:
So the defense, this isn't an aggressive defense that came on, this is the government deciding we're going to set the table with the expert and we're going to close this out with propensity, propensity, propensity.

[00:37:04] Speaker 00:
And that's why harmless errors should not be found here.

[00:37:10] Speaker 00:
And the government has to show that it's

[00:37:13] Speaker 00:
more likely than not, that it didn't affect the verdict.

[00:37:18] Speaker 00:
So it's the government's burden to show, if the court finds 404B error, it's the government's burden to show that it wasn't harmful.

[00:37:25] Speaker 00:
And if the court finds, as it did in Curtin, that it's a due process violation, then it would be Chapman, and then the government would have to prove beyond a reasonable doubt that there is an error.

[00:37:33] Speaker 00:
But at a minimum, the government has the burden of showing that the 404B evidence

[00:37:39] Speaker 00:
that came in and should have been excluded under 403 didn't affect the outcome.

[00:37:46] Speaker 00:
If there's no further questions, I thank the court.

[00:37:50] Speaker 04:
Any further questions?

[00:37:52] Speaker 04:
No.

[00:37:52] Speaker 04:
Okay.

[00:37:52] Speaker 04:
Thank you very much.

[00:37:53] Speaker 00:
Thank you, Your Honor.

[00:37:54] Speaker 04:
And thank you to both counsel for very helpful arguments today.

[00:37:57] Speaker 04:
Thank you.