[00:00:00] Speaker 03:
Oh.

[00:00:05] Speaker 01:
Good morning, Your Honours.

[00:00:07] Speaker 01:
I may please the court.

[00:00:08] Speaker 01:
Jessica will leave out with federal defenders on behalf of the appellant.

[00:00:11] Speaker 01:
I'd like to reserve two minutes for rebuttal, and I'll keep track of my time.

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

[00:00:16] Speaker 01:
This court should reverse for two reasons.

[00:00:18] Speaker 01:
First, because in reaching its verdict, the district court relied on appellant's physical appearance, which was extrinsic evidence never introduced at trial.

[00:00:27] Speaker 01:
And second, because even if it could rely on his appearance,

[00:00:30] Speaker 01:
The court's mere and sole comparison to the surveillance footage is not enough to support each bank robbery count beyond a reasonable doubt.

[00:00:47] Speaker 04:
based my identity decision on a comparison of the person sitting in the courtroom to the surveillance photos, but it doesn't seem like on appellate review for a substantial evidence challenge that we are limited to only doing that comparison and that we can consider the larger record.

[00:01:02] Speaker 04:
Do you disagree with that?

[00:01:03] Speaker 01:
I do not disagree, Your Honor.

[00:01:04] Speaker 01:
This court can consider the larger record, but this court should pay deference or defer strongly to the district court's factual finding

[00:01:14] Speaker 01:
The additional evidence, the historical cell site data, the ride sharing data, there wasn't sufficient evidence in the record or presented at trial to make that evidence relevant.

[00:01:25] Speaker 02:
Why should we defer?

[00:01:28] Speaker 01:
Because it's a district court's factual findings, Your Honor, and so the court should defer.

[00:01:32] Speaker 02:
Do we treat the finding that it's the same person as a factual finding, which we treat by a clear air standard?

[00:01:40] Speaker 02:
No, Your Honor, but in this case, the district court... Why are the standards different for the different kinds of evidence?

[00:01:47] Speaker 02:
Why should we say, defer to the evidence that you want us to disregard, but not defer to the evidence that you want us to disregard?

[00:01:55] Speaker 02:
What's the basis for that?

[00:01:57] Speaker 01:
Well, Your Honor, we're not asking the court to disregard the visual comparisons, surveillance footage, for example.

[00:02:03] Speaker 01:
What we're asking the court is to pay strong deference to the court's factual findings or

[00:02:08] Speaker 01:
Findings that there simply wasn't enough in the record to link the cell phone data evidence Why do we defer to that and not defer to the?

[00:02:20] Speaker 02:
trial judges ability to observe sitting in the courtroom for a couple of days and make the Comparison that we can't make because we're not sitting in the courtroom for a couple of days So why show why shouldn't we defer to that?

[00:02:31] Speaker ?:
I?

[00:02:31] Speaker 01:
Because in that case, Your Honor, the district court improperly took into account information that wasn't presented as evidence, which was the appellant's physical insurance.

[00:02:39] Speaker 02:
Well, that's your first argument.

[00:02:41] Speaker 01:
Correct, Your Honor.

[00:02:41] Speaker 02:
But that's something a little different.

[00:02:43] Speaker 02:
We can get to that, but I'm still trying to pin down the standard, and I don't hear a reason why the standards are different for the two different kinds of evidence.

[00:02:52] Speaker 01:
Well, it's a de novo review on a insufficiency of the evidence claim.

[00:02:57] Speaker 01:
And so, of course, the court can review de novo.

[00:02:58] Speaker 02:
But you've told us no.

[00:02:59] Speaker 02:
You've told us it's not de novo.

[00:03:00] Speaker 02:
We should give deference to the trial court's decision that the other evidence wasn't substantial enough.

[00:03:07] Speaker 02:
So that's what's inconsistent about this.

[00:03:09] Speaker 01:
And I'd like to clarify my position then.

[00:03:11] Speaker 01:
It certainly is a de novo review.

[00:03:12] Speaker 01:
This court can take everything into account.

[00:03:15] Speaker 01:
However, I think it is important that the district court, having viewed all of the evidence,

[00:03:20] Speaker 01:
said during its findings of fact that there simply wasn't enough that the government did to connect the rideshare history evidence, the historical cell site evidence, with the person sitting in the courtroom.

[00:03:33] Speaker 01:
The government simply didn't introduce any evidence that the person sitting in the courtroom's name was the same name that was shared with the person who held those cell phone records.

[00:03:44] Speaker 03:
The government argues that the defense counsel introduced him as Mr. Hassan and therefore that name was properly before the district judge.

[00:03:55] Speaker 01:
That's their position, Your Honor.

[00:03:56] Speaker 01:
We think that what the trial counsel, and it was myself, did was we made our appearance on the record.

[00:04:04] Speaker 01:
We introduced ourselves as representing the appellant, but we did not introduce the appellant to the trier of fact.

[00:04:10] Speaker 01:
At that point, we made our appearance on the record to the district court in the district court's capacity as the court presiding over the trial.

[00:04:18] Speaker 01:
not in the district court's capacity as a trier of fact.

[00:04:21] Speaker 01:
I think that is substantially different than what counsel did in Alexander, for example.

[00:04:26] Speaker 01:
In that case, defense counsel introduced defendant Gary Alexander to the jury.

[00:04:32] Speaker 01:
In the other cases that the government relies on, there are representations made to the jury.

[00:04:37] Speaker 03:
Well, since it was a bench trial, I'm having trouble finding that distinction.

[00:04:42] Speaker 01:
It was a bench trial, Your Honor.

[00:04:44] Speaker 01:
But at the end of the day, due process and the Sixth Amendment guarantee of a fair trial makes no distinction between whether the trial of fact is a district court or whether the trial of fact is a jury.

[00:04:55] Speaker 02:
At the end of the day, the guarantee requires... You're telling us there is a distinction because we're supposed to disregard

[00:05:01] Speaker 02:
your introduction of the defendant by name.

[00:05:04] Speaker 02:
as compared to an introduction to a jury.

[00:05:07] Speaker 02:
You're treating them differently, and now you're telling us we shouldn't treat them differently.

[00:05:11] Speaker 01:
There's no distinction when the guarantee to a fair trial requires that a verdict be based on evidence actually introduced at trial.

[00:05:20] Speaker 01:
My appearance on the record before trial even began, and I think it is quite clear that trial hadn't begun at that point.

[00:05:27] Speaker 01:
In fact, the government asked to lay a record about an entirely separate matter before they even gave their opening statements.

[00:05:33] Speaker 01:
I think the government attorney said, literally, I would like to address the court before beginning.

[00:05:38] Speaker 01:
And so my appearance on the record was not at trial.

[00:05:40] Speaker 01:
It is very different than when Alexander's attorney introduced Alexander to the jury.

[00:05:46] Speaker 01:
It's very different than in, I believe, its masters when they make the representation, defense counsel makes a representation to the jury about the identity.

[00:05:54] Speaker 02:
Say it's different, but why should we treat it as different?

[00:05:56] Speaker 02:
Why is that a distinction that should make a difference?

[00:05:59] Speaker 02:
I think it goes back to our... I mean, you never said this isn't the guy whose name's on the indictment.

[00:06:04] Speaker 01:
No, Your Honor, but the indictment again is not evidence or cannot be used as proof of guilt at trial.

[00:06:10] Speaker 01:
I think the two issues are related, but I think it goes back to the first point, that at the end of the day, the Sixth Amendment guarantee of a fair trial requires that a defendant be judged based on the evidence introduced at trial.

[00:06:24] Speaker 01:
And here, the government never bothered to introduce anything.

[00:06:28] Speaker 01:
about the person sitting in the courtroom.

[00:06:30] Speaker 01:
They had no witness identify him.

[00:06:32] Speaker 01:
They had no information or testimony about that person's name.

[00:06:36] Speaker 01:
They didn't even bother to link that the person who was arrested for these offenses was in fact the person sitting at council table.

[00:06:43] Speaker 01:
In Shuler, for example, well, I'll go back to Navarro-Garcia.

[00:06:48] Speaker 01:
This court has defined extrinsic evidence as information obtained through either out-of-court experiments or otherwise.

[00:06:56] Speaker 01:
But that definition isn't just limited to out-of-court experiments.

[00:07:00] Speaker 01:
And I think Shuler and Vasquez-Perez and Brincon reveal that for us.

[00:07:04] Speaker 02:
In Shuler, for example.

[00:07:06] Speaker 02:
I'm old, so maybe you don't.

[00:07:08] Speaker 02:
O.J.

[00:07:09] Speaker 02:
Simpson trial, the dramatic moment that caught the whole country and certainly caught the jury, was putting a glove on Simpson's hand.

[00:07:18] Speaker 02:
That's something the jury was asked to observe.

[00:07:21] Speaker 02:
There wasn't testimony that it didn't fit, but Johnny Cochran's closing argument, if it doesn't fit, you must acquit, is hard to forget.

[00:07:31] Speaker 02:
Now, why is that considered extrinsic out of court if it all happens in the courtroom?

[00:07:37] Speaker 01:
I wouldn't say that that was considered extrinsic.

[00:07:40] Speaker 01:
That actually had, and I'm familiar with the moment, Your Honor.

[00:07:44] Speaker 01:
In that case, O.J.

[00:07:46] Speaker 01:
Simpson was, or there was leave from the court for O.J.

[00:07:49] Speaker 01:
Simpson to try on the glove.

[00:07:51] Speaker 01:
The prosecutor asked the court that he, it was demonstrative evidence, you would say, but that it was in front of the jury.

[00:07:57] Speaker 02:
And why wasn't your client's face demonstrative evidence that the district judge looked at for several hours?

[00:08:03] Speaker 01:
The crucial point that's missing is that the government never took that step.

[00:08:07] Speaker 01:
The government never asked the court leave.

[00:08:10] Speaker 02:
I have never seen a formal introduction into evidence of the face of the defendant sitting in front of you.

[00:08:18] Speaker 02:
Have you ever seen that?

[00:08:19] Speaker 01:
I've seen witness identification.

[00:08:21] Speaker 02:
I'm not asking about that.

[00:08:23] Speaker 02:
I mean, people observe what happens in the courtroom, and I've never seen anybody ask the district judge, particularly in a bench trial, please accept as evidence the face of the defendant who's sitting in front of you.

[00:08:36] Speaker 01:
I do think this is a unique case when the government failed to prove any other identification evidence.

[00:08:42] Speaker 01:
There was no witness identification that would have supplemented the need to ask someone to stand up.

[00:08:47] Speaker 01:
There was no law enforcement officer testifying that the person they arrested was in fact the person sitting before them being judged.

[00:08:54] Speaker 01:
And so I think this is a rather unique case.

[00:08:56] Speaker 01:
But at the end of the day, the Constitution requires that if you're going to judge someone, convict them, put on a case, then they must be convicted based on the evidence introduced at trial.

[00:09:07] Speaker 01:
And that simply wasn't done here.

[00:09:08] Speaker 01:
I recognize I have a minute left.

[00:09:09] Speaker 01:
Thank you, Your Honors.

[00:09:13] Speaker 03:
We'll hear from the Governor.

[00:09:17] Speaker 00:
Please the court Daniel Zip on behalf of the United States.

[00:09:20] Speaker 00:
Your honor the district court in this case did not violate Mr. Hassan's Sixth Amendment rights by considering his in court appearance and comparing that to the video surveillance evidence.

[00:09:28] Speaker 00:
This does not raise the same concerns as this court has recognized in the extrinsic evidence cases, as there is nothing extrinsic about the defendant's face in the courtroom.

[00:09:39] Speaker 00:
None of the concerns specifically in the Sixth Amendment about the right to confrontation or compulsory process or cross-examination or the right to counsel are implicated by the court simply looking at the defendant's face as he sat in the courtroom over the course of trial.

[00:09:53] Speaker 04:
I have to say that if I was limited, as the district court indicated, she was limited to just looking at the defendant in the courtroom and comparing his face to the surveillance photos and videos, I don't know.

[00:10:07] Speaker 04:
I don't think I'd get there.

[00:10:09] Speaker 04:
So I'm curious what you think in the record would tie that up beyond the surveillance.

[00:10:14] Speaker 00:
Sure, I guess two responses.

[00:10:16] Speaker 00:
One, on sufficiency review, it's not whether any individual court would come to the conclusion.

[00:10:20] Speaker 04:
Well, that's an interesting question, sufficiency of the evidence on that particular issue, because as Judge Clifton alluded to, how would we even ever assess that?

[00:10:28] Speaker 04:
Because we have half of the equation there's no way for us to assess, because we weren't sitting there, we don't know what he looked like in the courtroom, which is another reason why I think I would have a problem if the only evidence I could look at

[00:10:39] Speaker 04:
is a comparison of him in the room to the surveillance photos, I'm only having half of that equation.

[00:10:44] Speaker 04:
I have no idea how to assess that.

[00:10:46] Speaker 04:
So that's why I'm asking you, what else in the record can I piece together to show that the identification that the district court made is sufficient?

[00:10:54] Speaker 00:
Sure.

[00:10:55] Speaker 00:
Well, in addition to the video surveillance evidence, there was significant corroborating evidence introduced.

[00:11:01] Speaker 00:
There was cell phone records,

[00:11:02] Speaker 00:
putting the defendant's name, Mr. Mohammed, at this location at Pulitzer Place where he was picked up for the first robbery.

[00:11:10] Speaker 00:
There was cell phone data showing him traveling from that location to the first bank where he appeared on video.

[00:11:17] Speaker 00:
There was Uber data from that first pickup, also under the name of Mr. Hassan, also showing the same path to the bank and back.

[00:11:26] Speaker 00:
And then there was Lyft data from the third robbery, also in his full name, also showing the direct path to and from the robbery.

[00:11:35] Speaker 00:
In addition, the fact remains, even if this court were not to look at the defendant in court, but just comparing the four individual

[00:11:44] Speaker 00:
robbery videos, they're very clear that it's the same person that appears in each one.

[00:11:49] Speaker 00:
At least the second one I think has the clearest image of him where he doesn't have a hat and most of his face is exposed.

[00:11:55] Speaker 00:
So if that's enough to make the comparison, then it's clear that all four of them are all the same.

[00:12:01] Speaker 00:
And the cell site data from a phone registered to in his name at his address shows that same phone going to each of the four robberies.

[00:12:10] Speaker 00:
So it's not entirely clear to us why the district court disregarded all of that evidence at trial.

[00:12:15] Speaker 00:
But as your honors noted, you can consider it on sufficiency review.

[00:12:20] Speaker 00:
And that in combination with the videos

[00:12:22] Speaker 00:
We believe it's sufficient for a rational juror or a rational fact finder to find all the elements.

[00:12:28] Speaker 00:
In addition, if you look at the briefs, admittedly, if you look just at those still photographs and compare them to the image of the defendant in the PSR, some of them are grainy and it's hard to tell.

[00:12:39] Speaker 00:
But the court watched long sections of video, 15 minutes or more.

[00:12:45] Speaker 00:
from each of these robberies and sat through the trial over the course of two days with the defendant in court able to observe the defendant over the course of hours.

[00:12:55] Speaker 00:
So I think that comparison between video evidence and the live appearance of the defendant is much more powerful than just sort of trying to compare four images in our briefs.

[00:13:06] Speaker 02:
There's a question raised as to whether you talk about the length

[00:13:12] Speaker 02:
to the person with the defendant's name, how was it established that, in fact, the person sitting next to counsel and the chair usually reserved for the defendant was, in fact, the person with that name?

[00:13:26] Speaker 00:
Right.

[00:13:26] Speaker 00:
The evidence is weaker on that point, admittedly.

[00:13:30] Speaker 00:
The there's sort of two questions is the person that was indicted did we indict the wrong person is that actually someone named mr. Muhammad Hassan Hussain and then the broader question is did that person commit each of these four robberies on the first point this court has held multiple times that on review the court can consider what the defense counsel does introducing their client as mr. Hassan is evidence on that first question did we indict the wrong person

[00:13:57] Speaker 00:
The fact that the defense counsel introduced him as Mr. Hassan, the fact that no one at any point in trial said we've got the wrong guy, the point that over the year of custody or the months leading up to this trial, there was never any challenge to him being indicted wrongfully or that he wasn't the person charged in the indictment.

[00:14:15] Speaker 00:
On that question, this court can consider a sort of broader range of evidence as to whether his name was, in fact, Mr. Mohammed Hussain Hassan, sorry.

[00:14:26] Speaker 02:
The facts here are somewhat unique.

[00:14:30] Speaker 02:
I mean, your colleague acknowledged as such.

[00:14:34] Speaker 02:
I had a law clerk work diligently trying to find a reported case like this.

[00:14:40] Speaker 02:
What's the closest case you can point to that fits the factual situation here?

[00:14:47] Speaker 00:
I think on the Sixth Amendment point it would be the Domina case where this court held that it was not improper for the district court to make the defendant wear a mask and have a witness identify the defendant in the courtroom and then the court held and the jury could also consider the defendant's appearance in that mask for purposes of comparing him to the surveillance evidence in that case.

[00:15:14] Speaker 00:
That's very similar to what happened here.

[00:15:16] Speaker 00:
The defendant was never asked to stand up or sort of formally present himself to the district court, but particularly since this is a bench trial, it would make little sense for the, for anyone to have sort of gone through that additional exercise.

[00:15:32] Speaker 04:
Well, all those, the cases that I looked at that were somewhat similar, including the one you just described,

[00:15:39] Speaker 04:
The comparison that the fact-finder was allowed to make or acknowledged that they could make in the courtroom was in addition to other evidence of identification.

[00:15:46] Speaker 04:
So the unique thing about this case is that there isn't any witness saying that's the guy or some other specific identification evidence.

[00:15:54] Speaker 00:
That's true.

[00:15:55] Speaker 00:
But we don't believe that that's relevant to the Sixth Amendment analysis.

[00:15:59] Speaker 00:
It doesn't become a Sixth Amendment violation or not a Sixth Amendment violation just because some other witness has identified him earlier in the proceeding.

[00:16:08] Speaker 00:
The question is,

[00:16:09] Speaker 00:
Does the court looking at the defendant in trial implicate any of the concerns in the Sixth Amendment or the right to confrontation or the right to counsel?

[00:16:16] Speaker 00:
All those aspects of the other extrinsic cases where this court has held, you know, relying on a court file that wasn't supposed to be in evidence or relying on a juror's understanding of a defendant's reputation for violence, those are the type of things that would implicate the need for confrontation or the need for counsel.

[00:16:38] Speaker 00:
None of that is implicated here when all we're talking about is the defendant's

[00:16:42] Speaker 00:
appearance and this court has made clear in the Fifth Amendment context you don't have a right to not appear in court to protect your identity under the Fifth Amendment.

[00:16:51] Speaker 00:
So for all those reasons we believe that the district court did not violate the Sixth Amendment and viewed in the totality the evidence here was more than sufficient for a rational finder effect to find all of the elements of the offense.

[00:17:06] Speaker 00:
Does the court have any questions?

[00:17:09] Speaker 03:
Thank you for your argument.

[00:17:11] Speaker 03:
Do you have a minute for rebuttal?

[00:17:15] Speaker 01:
Thank you, Your Honor.

[00:17:16] Speaker 01:
The question isn't whether it would make little sense to ask the appellant to stand in court so that his appearance can be introduced into record.

[00:17:24] Speaker 01:
It's whether it was constitutionally required, and it was.

[00:17:27] Speaker 01:
This court in Shuler, for example,

[00:17:30] Speaker 01:
held that it was improper for the prosecutor to have commented on the defendant's demeanor, his laughter during a witness's testimony, because at the end of the day, it wasn't evidence developed or adduced at trial.

[00:17:42] Speaker 01:
I don't see a very big difference between a defendant's laughter during witness testimony and appellant's appearance.

[00:17:50] Speaker 01:
At the end of the day, it simply was not introduced into evidence or developed at trial.

[00:17:55] Speaker 01:
There are constitutional concerns that arose from this.

[00:17:58] Speaker 01:
If, for example,

[00:17:59] Speaker 01:
the government had enlisted a testimony from a teller identifying the appellant in the courtroom, that would have given us an opportunity to cross-examine the identification.

[00:18:11] Speaker 01:
The witnesses or the teller's descriptions of the robbers did vastly differ from one another.

[00:18:17] Speaker 01:
And so we were deprived from the ability to undermine those identifications, or at the very least point out the differences between

[00:18:25] Speaker 01:
the person in the surveillance footages and the person sitting at defense counsel table but because the government never bothered or chose to never introduce into evidence his appearance or have a witness identify him or have any evidence that pointed to the fact that the person who was arrested was a person sitting in the courtroom that did undermine our ability to put on a defense cross-examined witnesses and undermine their identification.

[00:18:49] Speaker 01:
You're over time.

[00:18:50] Speaker 01:
Excuse me.

[00:18:51] Speaker 02:
Were you aware that the district court viewed the videos?

[00:18:55] Speaker 01:
as we sat there, as the evidence was introduced.

[00:18:59] Speaker 02:
Well, wouldn't that seem to open the door if you wanted to argue that there wasn't a match to make that argument directly to the district court?

[00:19:07] Speaker 01:
No, Your Honor, because at the end of the day, it's a Sixth Amendment guarantee to be judged based on the evidence introduced at trial.

[00:19:13] Speaker 01:
And so only in closing argument, when the government asked the court to take a look at the appellant, were we then on notice that that is what it intended to rely on to prove its case.

[00:19:23] Speaker 01:
In fact, that was the only thing it intended to rely on to prove its case.

[00:19:26] Speaker 03:
So the district court pointed to the video evidence as a silent witness, that it was a witness to his identity.

[00:19:35] Speaker 01:
Incorrect.

[00:19:36] Speaker 01:
And we objected during closing arguments, Your Honor.

[00:19:39] Speaker 03:
Okay, thank you.

[00:19:40] Speaker 01:
Thank you.

[00:19:41] Speaker 03:
We thank both sides for the arguments.

[00:19:42] Speaker 03:
The case United States v. Hassan is submitted.