[00:00:10] Speaker 04:
And we'll proceed now to hear argument in the next case on calendar for argument, which is 24-5581, United States of America versus Jared, Josh, John.

[00:00:26] Speaker 04:
And we will hear first from Mr. Newton.

[00:00:30] Speaker 04:
You may proceed.

[00:00:31] Speaker 01:
Thank you.

[00:00:32] Speaker 01:
Good morning, and may it please the court, I would like to reserve two minutes of my 10 for rebuttal.

[00:00:37] Speaker 01:
I want to address two issues this morning.

[00:00:39] Speaker 01:
first, the threshold issue of whether the standard of review is de novo or abuse of discretion.

[00:00:46] Speaker 01:
And second, whether applying the extremely pro-defendant test concerning defensive jury instructions, including alibi, there was sufficient evidence offered at trial, at Mr. John's trial, to support his request.

[00:01:00] Speaker 03:
And I go to the second point, because I think when I read the transcript of the Judiciary Court was,

[00:01:07] Speaker 03:
grappling with the evidence that was presented.

[00:01:11] Speaker 03:
And I think she would indicate that there was a lack of evidence, that there was an absence of evidence, is I think her point, that typically he comes to help on beginning at about 8 o'clock in the morning to take care of his daughter, that that's typically what he does.

[00:01:34] Speaker 03:
But she didn't have a specific recollection

[00:01:37] Speaker 03:
Do you think that that is sufficient for, and it's an honest question, I really want to get to this point, whether that is enough to say that that is evidence and not just an absence of evidence.

[00:01:52] Speaker 03:
That's what I'm trying to figure out.

[00:01:54] Speaker 01:
That's a fair question.

[00:01:55] Speaker 01:
I think you have to do more than simply look at her testimony, and it was, I explained this in my brief,

[00:02:03] Speaker 01:
It was customarily, not just typically, but regardless, I'm not sure how much of a difference that makes, but usually customarily, typically, he would be there.

[00:02:10] Speaker 01:
But there's more than just that.

[00:02:13] Speaker 01:
She specifically said the reason for that was she was the legal custodian of a 19-month-old baby, his daughter, but she had the custody of the baby.

[00:02:24] Speaker 01:
And this is really important, and this is on pages 478 and 481 of the excerpts of record.

[00:02:31] Speaker 01:
She said,

[00:02:32] Speaker 01:
I, she could not care.

[00:02:34] Speaker 01:
I cannot do both of the things at the same time, meaning care for the, her patient and care for a 19 month old baby.

[00:02:45] Speaker 04:
And it's not just, it's not- The time matters a lot.

[00:02:48] Speaker 04:
And for alibi, you have to have some sufficient basis for saying that at the time of the crime, there is a foundation on which the, you know,

[00:03:02] Speaker 04:
you could draw some kind of an inference with respect to him being at another place.

[00:03:10] Speaker 04:
And I think what troubled the district court was that there wasn't a lot of precision here.

[00:03:16] Speaker 04:
She didn't say he was there every time, you know, consistently like clockwork at eight o'clock.

[00:03:22] Speaker 04:
The fact that he generally was there from eight to two, you know, or whatever was, was necessary was eight to two on, on that day.

[00:03:31] Speaker 04:
That doesn't establish that he was punctual.

[00:03:34] Speaker 04:
There was no testimony that was punctual.

[00:03:36] Speaker 04:
Maybe it was 15 minutes late every time, in which case, you know, if we get to 8.15, 8.30, the alibi gets a lot shakier given the timeline here.

[00:03:46] Speaker 01:
Two responses to that.

[00:03:48] Speaker 01:
Number one, if you parse her testimony,

[00:03:51] Speaker 01:
And remember, this has to be looked at in a light most favorable to Mr. John, drawing all inferences that can be reasonably drawn in his favor.

[00:04:03] Speaker 01:
This court has said the evidence can be weak, insufficient, of doubtful credibility, and I think we also need to clarify something.

[00:04:11] Speaker 01:
We're talking here about circumstantial evidence, not direct evidence.

[00:04:16] Speaker 01:
Certainly circumstantial evidence can be considered, just like it can be considered when you decide whether there's sufficient evidence to convict somebody, a fortiori, you should be allowed to consider it for raising that more than a scintilla.

[00:04:29] Speaker 01:
But let me answer your question.

[00:04:32] Speaker 01:
So if you parse her testimony carefully in response to defense counsel's questions, I believe it was on redirect examination, she said,

[00:04:41] Speaker 01:
He was there at the same time I was.

[00:04:46] Speaker 01:
And she said I could not care for a 19 month old and my patient.

[00:04:51] Speaker 04:
Did she ever say anything specifically about his habits on the question of arrival?

[00:05:01] Speaker 01:
she didn't but you can infer or a rational jury looking at the evidence in a light most favorable to Mr. John could infer that there is no way that and I'm going to get to a second point which is the record permits a rational finding he showed up he would have to have showed up at 9 30 or later that morning and I'll get to that in a minute an hour and a half or more

[00:05:26] Speaker 01:
caring for a 19-month-old baby and caring for a patient who requires your time the entire time.

[00:05:36] Speaker 01:
A rational jury could infer from that circumstantial evidence that she would have remembered if he weren't there during that hour and a half period because she said he's there the entire time when I am on duty.

[00:05:51] Speaker 01:
that can be inferred in his favor.

[00:05:54] Speaker 01:
This is not whether there's sufficient evidence to convict him.

[00:05:59] Speaker 01:
It's not whether there's even overwhelming evidence.

[00:06:01] Speaker 01:
The Supreme Court established that in 1896 in Stevenson.

[00:06:04] Speaker 01:
That's not your inquiry.

[00:06:05] Speaker 01:
You're putting on the converse filter that you would normally put on if you were engaging in a sufficiency of the evidence review.

[00:06:12] Speaker 04:
Suppose, just hypothetically, suppose we would agree with you.

[00:06:17] Speaker 04:
Why wouldn't any error

[00:06:20] Speaker 04:
be harmless because unlike other types of defenses that are genuinely affirmative defenses that put a burden on the defendant, this is really subsumed within the elements just can't be met.

[00:06:34] Speaker 04:
He couldn't have committed the crime if he physically couldn't have been there.

[00:06:37] Speaker 04:
We call it alibi.

[00:06:40] Speaker 04:
Therefore, it could still be deemed to be harmless in the context of the case as a whole.

[00:06:45] Speaker 01:
There are numerous binding published Ninth Circuit precedents that say if a court erred by not submitting an alibi jury instruction because a rational jury could have inferred under this very pro-defendant standard, it is a structural error.

[00:07:01] Speaker 01:
There is no harmless error analysis.

[00:07:03] Speaker 04:
Are those cases, are you familiar with Nader versus United States?

[00:07:07] Speaker 04:
Are those cases consistent with Needer?

[00:07:10] Speaker 04:
Needer says a missing element can be harmless and is not structural.

[00:07:14] Speaker 04:
So how is an alibi instruction a structural error?

[00:07:21] Speaker 01:
In Needer, it was undisputed, completely undisputed, if you read Needer very carefully.

[00:07:27] Speaker 01:
that there was no issue at all about materiality.

[00:07:32] Speaker 01:
This is very different.

[00:07:33] Speaker 01:
This was contested and there was no appropriate vehicle in the form of an alibi defense instruction.

[00:07:39] Speaker 04:
But NEEDR doesn't apply only when there's no dispute or something is stipulated.

[00:07:45] Speaker 01:
NEEDR involved a missing element where there was no

[00:07:49] Speaker 01:
The court neither did not do what I'm asking you to do, which what your precedent requires you to do, which is to look at the evidence in a light most favorable to the defendant.

[00:08:00] Speaker 01:
And neither it was undisputed, so it was uncontradicted.

[00:08:02] Speaker 01:
There was no need to do that.

[00:08:04] Speaker 01:
Here it's disputed whether he showed up at his mother's house.

[00:08:08] Speaker 01:
Let me also, you can't overrule your cases based upon neither because it does not directly on point.

[00:08:14] Speaker 01:
You'd have to go on bonk to address that issue.

[00:08:17] Speaker 00:
get back to I think the question that Judge Mendoza asked at the start of your presentation, which is we have to determine if there is evidence upon which the jury could rationally sustain the defense.

[00:08:29] Speaker 00:
And here what we have is testimony about sort of a typical practice and a lack of memory about anything on this particular date.

[00:08:42] Speaker 00:
So in my view, what you have is sort of the possibility of evidence of an alibi, but there's not active evidence.

[00:08:54] Speaker 00:
There's no evidence that this is an alibi.

[00:08:57] Speaker 00:
So I'm still struggling with, and it gets back to Judge Mendoza's question, which is how does sort of the full setup, but then you have the absence of evidence, how does that absence of evidence become or transform into

[00:09:11] Speaker 00:
evidence under our case law that is enough to be able to say that this should have gone to the jury.

[00:09:19] Speaker 00:
And what's your best case for sort of the absence of evidence being evidence for purposes of

[00:09:24] Speaker 01:
Well, there are actually very few alibi cases in the Ninth Circuit.

[00:09:28] Speaker 01:
Zuniga, I think, is probably the leading one.

[00:09:30] Speaker 01:
And it was a no-brainer because there was explicit testimony that someone was out there.

[00:09:35] Speaker 01:
But I'm going to go back to my argument.

[00:09:37] Speaker 01:
You've got to look at all the evidence, circumstantial and direct.

[00:09:43] Speaker 01:
A person who has caretaking responsibilities legally for the patient and also legally for the 19-month-old would remember in an hour and a half or more not having the caretaker who is normally coming in, customarily coming in.

[00:10:02] Speaker 01:
In our legal system, all the time we rely upon normal practices and absence of a normal practice.

[00:10:09] Speaker 00:
Would you agree that under sort of the test that you just articulated and were considering the circumstantial evidence that's created by this testimony, that it would then also be proper to consider the timeline and all of the other potential facts that exist that would make an alibi not

[00:10:32] Speaker 01:
sufficient to submit.

[00:10:48] Speaker 01:
the resident in the remote area easily could find that Mr. John could have not gotten to his mother's house any earlier than 9 30.

[00:10:56] Speaker 04:
That's a really important defense counsel made this timeline argument, what was essentially the substance of the alibi argument in closing argument, correct?

[00:11:07] Speaker 01:
Not the way I'm making it, no, but that's beside the point because he didn't get an alibi instruction.

[00:11:12] Speaker 01:
That's the whole point of this appeal.

[00:11:14] Speaker 04:
I'm looking at page 708, 709 of the record, the defense closing, and he makes the reasonable doubt argument based on the mother's testimony.

[00:11:29] Speaker 01:
not looking at the hospital records, not looking at the piecing the minutes together about the hour and a half.

[00:11:34] Speaker 01:
But that's beside the point that he didn't get an alibi instruction that he requested.

[00:11:39] Speaker 01:
Why is that important?

[00:11:41] Speaker 01:
Why is it important?

[00:11:41] Speaker 01:
Because if you have an hour and a half or more caretaking for a sick patient and a 19 month old and you normally require someone to be there because you can't do both at the same time, a rational jury could infer she would have remembered that not being.

[00:11:56] Speaker 01:
She also testified

[00:11:57] Speaker 01:
She had no reason to believe anybody else came.

[00:11:59] Speaker 01:
She needed somebody.

[00:12:01] Speaker 01:
That's critically important.

[00:12:02] Speaker 01:
It's been three years also, you have to remember, over three years when she testifies.

[00:12:06] Speaker 01:
So you can't fault her for not remembering that specific day, which you can certainly, a rational jury could say, how is this lady going to take care of a 19-month-old and a sick patient at the same time without her son who's normally there and not remember it?

[00:12:21] Speaker 01:
So the point is, a jury could infer under this very pro-defendant standard that if he hadn't been there at eight or shortly thereafter, she would have remembered.

[00:12:30] Speaker 04:
All right.

[00:12:30] Speaker 04:
Thank you, counsel.

[00:12:31] Speaker 04:
We've taken you over with questions, so I'm going to give you two minutes for rebuttal that you requested.

[00:12:36] Speaker 04:
And we'll hear now from Ms.

[00:12:38] Speaker 04:
Kennedy.

[00:12:48] Speaker 02:
Good morning, your honors.

[00:12:49] Speaker 02:
May it please the court?

[00:12:50] Speaker 02:
Alana Kennedy appearing for the United States.

[00:12:53] Speaker 02:
The crux of an alibi defense is the physical impossibility of a defendant's guilt based on his location somewhere else than where these crimes occurred at the relevant time.

[00:13:04] Speaker 03:
Well, why isn't it to their argument?

[00:13:08] Speaker 03:
And they brief this out, and looking at the record, they say, look, there's evidence from his mother that says that he's typically there, and I don't

[00:13:17] Speaker 03:
know the exact word, but he's typically there between eight and two because she takes care of an 18-year-old, 18-month-old child that needs care.

[00:13:27] Speaker 03:
She can't do both.

[00:13:29] Speaker 03:
That's also in the record.

[00:13:30] Speaker 03:
So she can't do both.

[00:13:32] Speaker 03:
He's typically there.

[00:13:34] Speaker 03:
And no one else is there to take care of the child.

[00:13:39] Speaker 03:
Why isn't that perhaps weak, but nonetheless evidence, even circumstantial evidence?

[00:13:46] Speaker 02:
Your Honor, I'd like to correct a couple of the facts in the record there.

[00:13:51] Speaker 02:
There was not testimony about when John would arrive at Ms.

[00:13:55] Speaker 02:
Lewis's house, what time he customarily arrived, what time he arrived on that particular date.

[00:14:01] Speaker 02:
And actually looking at her time card at 7 ER, 7 45, the court will see that she typically worked six hour shifts and each day that six hour period ranged.

[00:14:14] Speaker 02:
So for example,

[00:14:16] Speaker 02:
The day before these crimes, she worked 10.30 a.m.

[00:14:19] Speaker 02:
to 4.30 p.m.

[00:14:20] Speaker 02:
The day after, she worked 8.45 a.m.

[00:14:23] Speaker 02:
to 2.45 p.m.

[00:14:24] Speaker 02:
So these times change regularly.

[00:14:27] Speaker 02:
There was no set schedule that she started promptly at 8 a.m.

[00:14:33] Speaker 03:
Secondly, Your Honor, there was... But part of her testimony was that her typical time was 8 o'clock.

[00:14:41] Speaker 03:
Is that incorrect?

[00:14:42] Speaker 02:
That is incorrect, Your Honor.

[00:14:44] Speaker 02:
She was specifically asked whether she had a specific memory of John watching his daughter being at the house at the same time as her on July 19th, 2020.

[00:14:55] Speaker 02:
That's at 5ER478.

[00:14:59] Speaker 02:
And she said no.

[00:15:00] Speaker 02:
She was asked whether she could remember what he was doing on that date.

[00:15:04] Speaker 02:
And she responded, I don't remember, too far back.

[00:15:09] Speaker 02:
That's at page 480.

[00:15:10] Speaker 02:
And Lewis's father lived with her.

[00:15:14] Speaker 02:
So in addition to Ms.

[00:15:15] Speaker 02:
Lewis having custody over John's minor daughter, her father also lived with her.

[00:15:22] Speaker 02:
Her work as an at-home caregiver spanned basically 24 hours a day.

[00:15:29] Speaker 02:
She testified that she would specifically record her hours for purposes of paying, and she made sure to do that accurately.

[00:15:37] Speaker 02:
Her caring for her father and caring for John's minor daughter didn't change simply because she logged into work at 8 a.m.

[00:15:46] Speaker 02:
or 8.45 a.m.

[00:15:47] Speaker 02:
on a particular day.

[00:15:48] Speaker 02:
These were two people that lived with her day in and day out.

[00:15:53] Speaker 02:
And she could care for both at the same time.

[00:15:56] Speaker 02:
And I think one of the things that's easy to get distracted about with some of the times discussed in the record

[00:16:03] Speaker 02:
and acknowledging that we need to view this evidence in the light most favorable to John, is that the 8 a.m.

[00:16:09] Speaker 02:
time period is artificial.

[00:16:11] Speaker 02:
That is essentially a fake deadline of when all of this needed to be completed.

[00:16:17] Speaker 03:
Where does that come from?

[00:16:18] Speaker 02:
Where did the 8 a.m.

[00:16:19] Speaker 02:
come from?

[00:16:19] Speaker 02:
Ms.

[00:16:20] Speaker 02:
Lewis's time card.

[00:16:22] Speaker 03:
Okay, so from the time card, so there is some evidence.

[00:16:26] Speaker 03:
I asked you that question earlier.

[00:16:27] Speaker 03:
You said no, that was not, that that was incorrect.

[00:16:29] Speaker 03:
So there is some evidence.

[00:16:30] Speaker 02:
Your Honor, there's evidence that Ms.

[00:16:32] Speaker 02:
Lewis worked at 8 a.m.

[00:16:33] Speaker 03:
And the light most favorable to the defendant is what the standard is here.

[00:16:37] Speaker 03:
So there is evidence that at 8 o'clock is the time here that we, looking at the evidence in the light most favorable to the defendant, we have to look at that.

[00:16:46] Speaker 03:
Is that accurate?

[00:16:47] Speaker 02:
That is correct, Your Honor, but I think there's a distinction there between viewing the light and viewing the evidence in the light most favorable to the defendant and making assumptions that are unsupported by the record.

[00:17:01] Speaker 02:
And that's illustrated in the Roper case that the government cited in its response brief.

[00:17:07] Speaker 02:
That's a Fifth Circuit case.

[00:17:09] Speaker 02:
And in that case, the defendant had alleged error for failure to instruct on an alibi where his car was inoperable.

[00:17:16] Speaker 02:
So he said, I couldn't have been at the place where these crimes were committed because my car didn't run.

[00:17:21] Speaker 03:
And the Fifth Circuit in that case... So wait, I guess I'm coming back to my question because I really...

[00:17:30] Speaker 03:
I'm trying to really understand this position by the defense and the government's argument, whether or not it's considered evidence.

[00:17:39] Speaker 03:
They indicate that this is circumstantial evidence.

[00:17:43] Speaker 03:
And you can quibble about whether or not 8 o'clock is a time frame that is shown on her time card, but it is evidence that the court could have considered, correct?

[00:17:58] Speaker 02:
It's evidence that the court

[00:17:59] Speaker 02:
Yes, could have considered.

[00:18:01] Speaker 03:
In the line most favorable to the defense in this analysis, correct?

[00:18:05] Speaker 02:
Yes.

[00:18:05] Speaker 03:
OK, so there's that.

[00:18:06] Speaker 03:
Let's stop there.

[00:18:08] Speaker 03:
I'm just trying to get an understanding of the evidence that exists or doesn't.

[00:18:13] Speaker 03:
There's that.

[00:18:14] Speaker 03:
There's also the testimony that there's a 19-month-old baby that is in the home, correct?

[00:18:20] Speaker 03:
Correct.

[00:18:21] Speaker 03:
And would that be considered circumstantial evidence or not?

[00:18:25] Speaker 03:
On this point,

[00:18:29] Speaker 02:
I don't think so, Your Honor.

[00:18:31] Speaker 02:
I don't think so based on opposing counsel's comments about viewing the record as a whole.

[00:18:36] Speaker 02:
I mean, certainly we have facts and evidence here to include that Miss Lewis, per her time card, worked at 8 a.m.

[00:18:43] Speaker 02:
to 2 p.m.

[00:18:44] Speaker 02:
on July 19th.

[00:18:46] Speaker 02:
We know that she was caring for both her father and John's minor daughter at the same time.

[00:18:52] Speaker 02:
But these crimes occurred at 7 a.m.

[00:18:54] Speaker 02:
or shortly thereafter.

[00:18:55] Speaker 02:
And we acknowledge that there's some conflicting evidence about

[00:18:59] Speaker 02:
potentially how long the drive took.

[00:19:01] Speaker 00:
Counsel, can you address the arguments that your friend on the other side made that our cases and the circuit indicate that the evidentiary threshold to get a defense to the jury is low?

[00:19:15] Speaker 00:
And so in answering that question specifically on those line of cases, I'm curious to know, is your argument that there is no evidence, because I think the cases say that

[00:19:27] Speaker 00:
if alibi evidence is weak or insufficient, that still may be enough.

[00:19:33] Speaker 00:
And so I want to understand if you're saying that it is there's because I think you just said there's, you know, facts in the record that maybe could be read both ways.

[00:19:42] Speaker 00:
But I want to make sure I understand.

[00:19:43] Speaker 00:
Are you saying that there is no evidence and that's why even this low threshold isn't met in this case or that you disagree sort of with the reading of the cases that indicate that the threshold is low?

[00:19:55] Speaker 02:
I do not disagree with the line of the cases that say the threshold is low.

[00:20:00] Speaker 02:
There has to be at least some foundation in the evidence to support that instruction.

[00:20:05] Speaker 02:
And certainly we know from the cases that that needs to be more than a scintilla, but really it is slight.

[00:20:12] Speaker 02:
So we do not disagree with that.

[00:20:16] Speaker 02:
The issue I think is, to Judge Mendoza's point earlier on, is that this is really an absence of evidence.

[00:20:22] Speaker 02:
We have facts in the record, but

[00:20:26] Speaker 02:
opposing counsel relies on multiple assumptions and leaps to get to the point of interpreting this evidence in the way that he would have this court do that.

[00:20:36] Speaker 02:
And really, there's three reasons why

[00:20:40] Speaker 02:
the alibi defense was properly excluded here.

[00:20:44] Speaker 02:
And that was first Ms.

[00:20:45] Speaker 02:
Lewis's testimony.

[00:20:47] Speaker 04:
Wait a minute.

[00:20:47] Speaker 04:
The way you phrase that was clearly too strong.

[00:20:51] Speaker 04:
The alibi defense was excluded?

[00:20:54] Speaker 04:
It was not.

[00:20:55] Speaker 04:
He was permitted to argue to the jury that he wasn't there and couldn't have been there because the mother testified and had records that she worked from 8 a.m.

[00:21:06] Speaker 04:
to 2 a.m.

[00:21:06] Speaker 04:
He made that argument in closing.

[00:21:08] Speaker 02:
Your Honor is correct and I misspoke.

[00:21:10] Speaker 02:
I meant the jury instruction was properly not provided.

[00:21:14] Speaker 03:
The alibi instruction was not provided is what you intended to say, correct?

[00:21:22] Speaker 03:
Yes.

[00:21:23] Speaker 03:
And under Matthews, though, if there's evidence about a specific defense, doesn't Matthews tell us that the defendant is in fact entitled to that instruction?

[00:21:37] Speaker 02:
only if there's some foundation in the evidence, your honor.

[00:21:39] Speaker 02:
And I think that what I'd like the court to focus on is that first, Ms.

[00:21:43] Speaker 02:
Lewis's testimony, as it is in the record, did not establish that John was at her home on July 19th, 2020.

[00:21:51] Speaker 02:
To the extent that this court finds her testimony raised the question of his whereabouts on that date, there was no testimony about his presence there at the relevant time.

[00:22:02] Speaker 02:
And it's not just the location that matters for the alibi instruction.

[00:22:06] Speaker 02:
It's also the relevant time and Zuniga and those other cases speak to that.

[00:22:11] Speaker 02:
Her testimony did not establish that he was at her home at 8 a.m., that he was at her home at a particular time that day, that he arrived

[00:22:21] Speaker 02:
at around the same time every day.

[00:22:23] Speaker 02:
And really the relevant time here is 7 a.m.

[00:22:26] Speaker 02:
And the evidence in this case showed that he could and did commit all of these crimes before this artificial 8 a.m.

[00:22:34] Speaker 02:
deadline.

[00:22:34] Speaker 02:
And so based on that, to Judge Mendoza's point, this is really the absence of evidence.

[00:22:40] Speaker 02:
And we would respectfully ask this court to affirm.

[00:22:42] Speaker 03:
Well, counsel, it wasn't my point.

[00:22:43] Speaker 03:
It was my question.

[00:22:45] Speaker 02:
Thank you.

[00:22:46] Speaker 02:
Thank you.

[00:22:46] Speaker 04:
All right.

[00:22:47] Speaker 04:
Thank you, counsel.

[00:22:48] Speaker 04:
We'll hear rebuttal.

[00:22:49] Speaker 01:
I would like to read the exact

[00:22:51] Speaker 01:
Testimony from the mom that supports the alibi defense.

[00:22:54] Speaker 01:
This is on page record excerpt, or excerpts of record 478.

[00:22:58] Speaker 01:
This is the question by Mr. Wallen, trial counsel.

[00:23:01] Speaker 01:
Question, what did Mr. John do, if anything, when you would be on duty watching your father?

[00:23:06] Speaker 01:
Answer, on duty, by the way.

[00:23:08] Speaker 01:
Not at any time, on duty.

[00:23:11] Speaker 01:
Answer, he would take care of his daughter.

[00:23:12] Speaker 01:
Question, and where would that occur?

[00:23:14] Speaker 01:
Answer, at the house.

[00:23:16] Speaker 01:
Question, whose house is that?

[00:23:17] Speaker 01:
My house.

[00:23:18] Speaker 01:
Question.

[00:23:19] Speaker 01:
So you and him would be there at the same time.

[00:23:22] Speaker 01:
Yes.

[00:23:24] Speaker 01:
Okay, that's on page 478 to page 481.

[00:23:32] Speaker 01:
Question from Mr. Wallen.

[00:23:35] Speaker 01:
You said that you said that earlier, Josh, whenever you were whenever you were on duty, Josh would customarily come over to the house to take care of the baby.

[00:23:44] Speaker 01:
Yes.

[00:23:45] Speaker 01:
Then jump ahead to question who usually came over to take care of the baby.

[00:23:50] Speaker 01:
Josh.

[00:23:50] Speaker 01:
All right.

[00:23:50] Speaker 01:
Do you have any reason to believe that somebody else came over to take care of the baby that day?

[00:23:55] Speaker 01:
No.

[00:23:56] Speaker 01:
And then there's a one I missed on page 478, which is I could not do

[00:24:03] Speaker 01:
page 479, I could not do her job.

[00:24:06] Speaker 01:
He lived with me, but those were the hours that I had to make sure I did my job.

[00:24:10] Speaker 04:
They all support an inference that when he was generally on duty, he was there.

[00:24:17] Speaker 04:
But the question of alibi gets to the impossibility of bilocation.

[00:24:24] Speaker 04:
exact time matters, but there's no foundation.

[00:24:28] Speaker 04:
He could have been in there lots of people who show up at work every day and they're 10 minutes late every day, or they're 10 minutes early every day, or they're on the dot.

[00:24:38] Speaker 04:
There's nothing, no foundation at all about his arrival practices and how timely he was.

[00:24:44] Speaker 01:
So there is, if you infer from her testimony, and this is such an important point, spelled out in my reply brief in response to their arguments,

[00:24:53] Speaker 01:
A rational jury could easily have found that if you believed everything Mr. Begay said, combined with the hospital records, that Mr. John could not have arrived that day any earlier than 9.30, an hour and a half with a 19-month-old baby and somebody you are under a legal obligation to care for, a rational jury could say,

[00:25:15] Speaker 01:
It's been over three years, of course she doesn't remember that specific date, but boy, looking at all that stuff, that makes me have a reasonable doubt about whether he was in fact the second perpetrator.

[00:25:28] Speaker 01:
Maybe it was weak.

[00:25:30] Speaker 01:
Maybe it was a substantial, but it was enough.

[00:25:32] Speaker 04:
The district judge seemed to balk at one particular sentence in the proposed instruction.

[00:25:38] Speaker 04:
And that's the first sentence.

[00:25:40] Speaker 04:
Evidence has been admitted that the defendant was not present at the time and place of the commission of the crime charged in the indictment.

[00:25:48] Speaker 04:
It almost seems like the district court was putting words into my mouth and that is saying I drew the inference or evidence that the defendant was not present, from which you might find that the defendant was not present.

[00:26:07] Speaker 04:
How does that play into this?

[00:26:09] Speaker 01:
I don't think it plays into it.

[00:26:10] Speaker 01:
I think looking at decades of case law, it's not whether a judge playing the gatekeeping role subjectively, whether she believes it, it's whether a rational jury could.

[00:26:23] Speaker 01:
The instruction given to the jury isn't going to tell you, hey, let's discuss the standards of review on appeal.

[00:26:29] Speaker 01:
It's going to give that kind of common sense language.

[00:26:31] Speaker 01:
But from a judge playing the gatekeeper role,

[00:26:33] Speaker 01:
She can't do this subjectively.

[00:26:36] Speaker 01:
This is a objective standard and probably the most pro-defendant standard there is in terms of a sufficiency of the evidence equation.

[00:26:43] Speaker 04:
All right.

[00:26:43] Speaker 04:
Thank you, counsel.

[00:26:46] Speaker 04:
Thank counsel on both sides for the helpful arguments in this case.

[00:26:50] Speaker 04:
And the case just argued will be submitted.