[00:00:01] Speaker 03:
And we'll proceed to hear argument in the next case on the calendar for this morning, which is 24-3716, United States of America versus Ryan Adelbert Johnson.

[00:00:19] Speaker 03:
And we'll hear first from Ms.

[00:00:21] Speaker 03:
Brummer.

[00:00:21] Speaker 03:
Did I pronounce that correctly?

[00:00:23] Speaker 03:
Brummer, but that's okay.

[00:00:24] Speaker 03:
Okay.

[00:00:25] Speaker 03:
All right.

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

[00:00:26] Speaker 00:
Thank you, your honors.

[00:00:27] Speaker 00:
May it please the court, counsel?

[00:00:30] Speaker 00:
I am appointed under the CJ act to represent Mr. Ryan Adelbert Johnson.

[00:00:36] Speaker 00:
I will try to reserve a few minutes and of course I'll be watching my own time.

[00:00:41] Speaker 00:
As the court knows, Mr. Johnson was convicted of two counts of assault with a dangerous weapon and one count of discharge of a firearm during a crime of violence.

[00:00:54] Speaker 00:
There was, of course, the plea agreement afterwards.

[00:00:56] Speaker 00:
I'm not going to address that, though.

[00:00:58] Speaker 00:
He had waived his right to appeal on that.

[00:01:00] Speaker 00:
It's not part of the briefing, but just to fill in the blanks.

[00:01:04] Speaker 00:
There were two issues raised in the briefing.

[00:01:07] Speaker 00:
One was that a rational trial of fact could not have found the essential elements.

[00:01:11] Speaker 00:
And the second, that the trial court abused its discretion when it denied the motion for a mistrial and a motion

[00:01:17] Speaker 00:
for a new trial.

[00:01:18] Speaker 02:
Can you address the juror issue first?

[00:01:20] Speaker 00:
Yes, sure.

[00:01:20] Speaker 00:
I sort of thought maybe that's where the court might want to go.

[00:01:25] Speaker 00:
So on the juror issue, as I was preparing for it and as I was writing the brief, I kind of envisioned a world where maybe there was only the first part of it, where there was the issue

[00:01:42] Speaker 00:
where there's the juror note about the sentencing, about a juror having a problem with the sentencing.

[00:01:49] Speaker 02:
Well, sending a note from the jury, judges receive this all the time.

[00:01:52] Speaker 02:
Here's a note from a juror saying, hey, I'm concerned about punishment or sentencing or whatever.

[00:02:00] Speaker 02:
I mean, that's essentially what happened here.

[00:02:02] Speaker 02:
I mean, that would benefit the defendant in this case.

[00:02:07] Speaker 00:
Sure.

[00:02:08] Speaker 02:
How is that prejudiced?

[00:02:09] Speaker 00:
Well, OK, there's a second part of it, though.

[00:02:13] Speaker 00:
If the only thing would have been that note.

[00:02:15] Speaker 00:
And I do think the response maybe was a little odd from the court, where it says you're not to consider punishment when the note was specifically about.

[00:02:25] Speaker 02:
That's the straightest way, straight out from the instructions.

[00:02:28] Speaker 00:
Well, sure, sure.

[00:02:29] Speaker 00:
The question related to the sentencing.

[00:02:33] Speaker 00:
And I know the sentencing and the punishment are the same.

[00:02:38] Speaker 00:
As attorneys know that, but I thought that maybe there could have been a better way to say it.

[00:02:44] Speaker 00:
Actually, that's not even part of the briefing.

[00:02:47] Speaker 00:
If that was my only issue, I probably wouldn't have as much to argue.

[00:02:51] Speaker 00:
It would probably be 606B.

[00:02:55] Speaker 00:
But what happens afterwards?

[00:02:58] Speaker 00:
There's this call, actually two calls, when I look at the court's order.

[00:03:02] Speaker 00:
There's one where it's a call, can I speak to the judge?

[00:03:06] Speaker 00:
And in the order, and I don't want to speculate because it just kind of says what it says.

[00:03:12] Speaker 00:
It says the person asked to speak to the judge.

[00:03:14] Speaker 00:
It seems like that's sort of it.

[00:03:17] Speaker 00:
But then there's the second call where the person is saying, we felt rushed.

[00:03:25] Speaker 00:
And can that be used in sentencing?

[00:03:27] Speaker 00:
We felt like there was this rush to come to a verdict.

[00:03:33] Speaker 00:
Can someone let the judge know, basically?

[00:03:35] Speaker 00:
It seemed like it was kind of a note to the judge.

[00:03:38] Speaker 03:
Now, wouldn't that kind of a comment, you know, if used for an inquiry into the validity of the verdict, be barred by 606B?

[00:03:47] Speaker 03:
I mean, it's a direct comment about the contents of the deliberations and the mental processes of the jurors.

[00:03:55] Speaker 00:
I didn't think so, because I thought... I mean, how is it not?

[00:03:59] Speaker 03:
I think the deliberations were too rushed because

[00:04:02] Speaker 03:
It was Friday and everyone wanted to get out so that they'd finish before the weekend because, you know, a lot of people were from the northern part of the state and it's very far.

[00:04:12] Speaker 03:
And how is that not revealing the jury's internal processes in reaching the verdict, which is what the rule bars?

[00:04:21] Speaker 00:
So it's not an internal process if they're feeling coerced by what the judge says.

[00:04:27] Speaker 03:
And I know that... How is anything that the judge said coerces?

[00:04:31] Speaker 03:
What did the judge say?

[00:04:32] Speaker 03:
What words the judge said were coercion?

[00:04:35] Speaker 00:
Sure.

[00:04:35] Speaker 00:
So the judge had said something along the lines, I'm very confident this will end by Friday.

[00:04:40] Speaker 00:
And the judge put that in his order.

[00:04:43] Speaker 00:
Hey, I didn't coerce anybody.

[00:04:45] Speaker 00:
Look at this language.

[00:04:46] Speaker 00:
I said I'm very confident.

[00:04:47] Speaker 00:
I think the judge also said, but we will return on Monday if necessary.

[00:04:51] Speaker 00:
Yes.

[00:04:52] Speaker 00:
Yes.

[00:04:54] Speaker 00:
But what we have is the call from a juror saying,

[00:05:02] Speaker 00:
We thought we needed to be done on Friday, basically.

[00:05:04] Speaker 00:
My paraphrasing, of course.

[00:05:06] Speaker 00:
The exact language that is in there is set forth in the judge's order.

[00:05:11] Speaker 00:
So we have that on top of it.

[00:05:13] Speaker 00:
It's not just with the judge's statements.

[00:05:19] Speaker 00:
We have a juror following up and saying, we felt rushed.

[00:05:24] Speaker 02:
And that call came in

[00:05:26] Speaker 02:
I want to remember here, but weeks at some later point after the verdict came in.

[00:05:32] Speaker 00:
It came in after the verdict, certainly.

[00:05:35] Speaker 00:
Right.

[00:05:36] Speaker 02:
And so, I mean, I'm not so sure that's so probative.

[00:05:40] Speaker 02:
And again, to Judge Collins's point, I think then we'd get into some 606 problems.

[00:05:45] Speaker 02:
But if we start regulating judges and telling them, I mean, when we have a jury that's in panel, they come in.

[00:05:56] Speaker 02:
Judges routinely tell them, hey, I anticipate this case will be done by Friday, or I anticipate this case will be done in three days.

[00:06:05] Speaker 02:
Are we not going to allow judges to do that kind of signaling to the jurors so that they can make plans for their lives?

[00:06:12] Speaker 00:
I mean, I think that's the... No, no, certainly not.

[00:06:15] Speaker 00:
No, that would be outrageous.

[00:06:17] Speaker 00:
And I don't think that is this case.

[00:06:19] Speaker 00:
This case has

[00:06:20] Speaker 00:
a little bit of an odd twist to it, which is not only do we have the statements from the court, and only do we have the call from the juror, but we also have sort of an odd set of circumstances that the jurors had to travel four to five hours, and they were put up in a hotel.

[00:06:45] Speaker 00:
And I really couldn't find

[00:06:50] Speaker 00:
any case law that was similar to that, where you had the jurors coming in and they had to have lodging.

[00:06:58] Speaker 00:
Of course there was case law, I think it was the Green case that talked about the jurors

[00:07:07] Speaker 02:
But what's your point with the travel?

[00:07:09] Speaker 02:
I'm not following your point.

[00:07:11] Speaker 00:
Sure, sure.

[00:07:11] Speaker 00:
So it's just showing that it's something extrinsic that is basically coercing the jurors.

[00:07:18] Speaker 00:
It's like a circumstance that is on the jurors that is causing them to behave in a certain way.

[00:07:27] Speaker 00:
Enough so that a juror calls and says, we felt rushed.

[00:07:31] Speaker 00:
Do you think that there's an issue in sentencing?

[00:07:34] Speaker 00:
And I even thought, as I was writing this brief, the two issues to me, the issue regarding the sufficiency of evidence and the issue regarding the jury, are very much tied together.

[00:07:49] Speaker 00:
Because this was a case where I almost pictured a Tarantino movie of this, where it's filmed three ways.

[00:08:01] Speaker 00:
One person is a shooter, the second person is a shooter, the third person is the shooter.

[00:08:05] Speaker 00:
Basically, the evidence seems to be pretty equally that any of these people can be the shooters.

[00:08:13] Speaker 03:
And we can see that the jury... I mean, the driver's probably out.

[00:08:17] Speaker 03:
Driving while simultaneously shooting a long rifle out the back window is probably past even a Tarantino movie.

[00:08:25] Speaker 00:
Potentially.

[00:08:26] Speaker 00:
I don't know.

[00:08:27] Speaker 00:
Quentin does some pretty amazing things, but even, I mean, it still was a possibility.

[00:08:32] Speaker 03:
It was a triable case, but certainly there was a rational path by which a jury could have found that Mr. Johnson in the front passenger seat was the shooter as opposed to the teenager in the back seat.

[00:08:50] Speaker 00:
I respectfully disagree.

[00:08:51] Speaker 00:
it to me if it was it and i don't think to me i think it in the law it being a rational trier of fact that the rational trier of fact would have had a hard time if this was if the burden of proof was a preponderance of the evidence to determine and out i'll give it to you judge let's take the driver out of it so every take in your trying to do a preponderance of the evidence which is in our burden uh... between

[00:09:21] Speaker 03:
the teenager in my office, your testimony that said that he thought the shooter had braided hair and Mr. Johnson's the only one who fits that.

[00:09:30] Speaker 03:
He thought at one point that the view of the shooter was obscured by the front seat, which could only be possible if the person was seated in the front.

[00:09:40] Speaker 03:
You had another witness who also said that she saw braided hair.

[00:09:47] Speaker 03:
Why isn't that enough to say he was the one?

[00:09:50] Speaker 02:
Well, and coupled with the DNA on the grip, coupled with the phone calls, Johnson admitting being the passenger.

[00:10:01] Speaker 00:
Yeah, I don't think there's a doubt that he was the passenger, but the DNA, I thought was a fact that.

[00:10:11] Speaker 00:
On the grip on the yeah, so

[00:10:15] Speaker 00:
It almost reminded me of those cases where you have two people who live in the house and one of them is dead.

[00:10:23] Speaker 02:
Yeah, you're arguing transfer of the debt.

[00:10:25] Speaker 00:
Right.

[00:10:25] Speaker 02:
I get that.

[00:10:26] Speaker 02:
But the issue is sufficiency, right?

[00:10:29] Speaker 00:
It is.

[00:10:29] Speaker 02:
And so the evidence that Judge Collins points out and this, why isn't that enough?

[00:10:36] Speaker 00:
Because it

[00:10:38] Speaker 00:
does not demonstrate beyond a reasonable doubt that Johnson was the shooter.

[00:10:44] Speaker 00:
It demonstrates that maybe he's a shooter, but when you take the standard being a rational trier of fact, that a rational trier of fact cannot make that determination.

[00:10:56] Speaker 00:
It's basically flipping a coin.

[00:10:58] Speaker 00:
Is it

[00:10:59] Speaker 00:
Is it Johnson or is it the teenager?

[00:11:03] Speaker 00:
The bumps could have been the bushy hair.

[00:11:05] Speaker 00:
There was the testimony that the officers could not have seen the magazine and the

[00:11:14] Speaker 00:
the end of the gun, I can't remember what it's called.

[00:11:17] Speaker 00:
They couldn't have seen that or seen in the scope or the trigger or whatever it was.

[00:11:21] Speaker 00:
They could not have seen that from where, unless the person was in the back seat.

[00:11:27] Speaker 00:
And so there was a lot of circumstances where it- How long was this?

[00:11:31] Speaker 03:
This was a long gun, right?

[00:11:33] Speaker 00:
I think it was.

[00:11:33] Speaker 00:
I think it was 36 inches.

[00:11:34] Speaker 03:
It would have been hard to be in the back seat with this long gun, the teenager who has no DNA of

[00:11:42] Speaker 03:
of her was found on the gun, is that correct?

[00:11:45] Speaker 00:
No DNA, but there was the testimony that female DNA can be masked by the male DNA.

[00:11:51] Speaker 00:
So it was not a foregone.

[00:11:54] Speaker 03:
This was a triable case because this was a chaotic scene with the shooting and the chase and all the rest of it.

[00:12:04] Speaker 03:
And people see things and the officer testimony didn't entirely line up either.

[00:12:11] Speaker 03:
The question is, is there a rational path by which the jury could have concluded, we know it's one of the three people, can't be the driver, it's between the back passenger and the front passenger, and there were a number of things by which a jury could have said, you know, it's got to be the front passenger because of the braided hair and because of the being obscured behind the seat.

[00:12:37] Speaker 03:
the DNA, the length of the gun, how crowded it was in the back to have been able to be shooting it from the back seat.

[00:12:45] Speaker 03:
Why isn't that enough for a jury to say, you know, it's Johnson in the front passenger seat?

[00:12:51] Speaker 00:
It's not, Your Honor, because the evidence was basically, and there's a lot of power when someone is indicted for something, but the evidence was not beyond a reasonable doubt.

[00:13:02] Speaker 00:
Like I said, it was a coin flip.

[00:13:04] Speaker 00:
and the jury flipped the coin and decided that it was Johnson, metaphorically flipped the coin.

[00:13:10] Speaker 00:
May I reserve the rest of my time?

[00:13:11] Speaker 03:
Yes, you may.

[00:13:12] Speaker 03:
All right, thank you very much.

[00:13:13] Speaker 03:
Thank you.

[00:13:13] Speaker 03:
We'll hear now from Mr. Voight.

[00:13:20] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:13:22] Speaker 01:
My name is William Voight.

[00:13:23] Speaker 01:
I'm an AUSA from here in Phoenix on behalf of the United States.

[00:13:27] Speaker 01:
As Judge Campbell correctly concluded, there was substantial evidence that Johnson was the person who shot the assault rifle

[00:13:33] Speaker 01:
at Hopi police officers doing this police chase.

[00:13:37] Speaker 01:
The jury actually returned a special verdict form specifically identifying him as the person who discharged the rifle and substantial evidence supports that conclusion.

[00:13:46] Speaker 01:
I would say there's four categories of evidence to try to marshal them all.

[00:13:51] Speaker 01:
First is the eyewitness testimony which the court has discussed.

[00:13:54] Speaker 01:
Officer Davis testified the shooter was in the front seat on the ER-220 and 221 repeatedly.

[00:14:00] Speaker 01:
I also think that is uniquely probative evidence in light of the defendant's jail call in which he admitted the officer was close enough to see him and to see where he was sitting on the ER-754, I will sanitize it, because even the cop wrote he got close enough to see me where I was sitting in the ride.

[00:14:18] Speaker 01:
So that alone, coupled with the defendant's admission on his jail calls that he was in the front seat,

[00:14:23] Speaker 01:
is enough to establish that he was the shooter.

[00:14:25] Speaker 01:
But of course, there's much more.

[00:14:27] Speaker 01:
Officer Davis testified that the shooter had braids that looked like bumps.

[00:14:31] Speaker 01:
The jury was given the arrest photographs of all three of the subjects who were in the car.

[00:14:36] Speaker 01:
We provided them at SCR 41 through 43.

[00:14:38] Speaker 01:
There's only one person's hairstyle that matches that.

[00:14:42] Speaker 01:
The jury could certainly rely on that.

[00:14:44] Speaker 01:
Also, I think, probative and particularly to reject the defense reconstructionist evidence

[00:14:50] Speaker 01:
The fact that both officers, as well as a third party witness, testified that there were gunshots before the back window shattered out.

[00:14:58] Speaker 01:
And given the physical characteristics of the firearm, that could not be the case if the shooter was in the backseat.

[00:15:05] Speaker 01:
The Ferro scan of the vehicle showed that the backseat was 28 inches deep.

[00:15:09] Speaker 01:
This firearm, as noted, was, depending on how far the backstop was out, 32 to 36 inches.

[00:15:16] Speaker 01:
And of course, there has to be a person behind it.

[00:15:19] Speaker 01:
So that's another foot of human being behind it, which is somewhere now in the 40 plus inches of space that wouldn't fit into a 28 inch seat.

[00:15:27] Speaker 01:
Both Officer Palmasima at ER 136 and Officer Davis at 215 to 16 testified that there were shots before the back windshield shattered out.

[00:15:39] Speaker 01:
And bystander Truman Navacucu on ER 268 testified

[00:15:43] Speaker 01:
that he saw the back windshield was shattered after he heard the muffled gunshots.

[00:15:49] Speaker 01:
So based on that, in concert with the physical evidence about the length of the rifle, the jury certainly could have concluded that it had to be the front passenger who was the shooter.

[00:15:59] Speaker 01:
There's other physical evidence too.

[00:16:01] Speaker 01:
The magazine was found on the floorboard in the front passenger seat.

[00:16:06] Speaker 01:
Unspent cartridges were found in the front of the vehicle, in the front console, and on the front floor.

[00:16:12] Speaker 01:
And the back feet, as the jury saw from photographs, was cluttered, filled with junk.

[00:16:15] Speaker 01:
It would be very difficult for anyone to shoot from there.

[00:16:19] Speaker 01:
And briefly, additionally, the DNA evidence.

[00:16:23] Speaker 01:
It was noted that sometimes male DNA can displace female DNA.

[00:16:27] Speaker 01:
The jury also heard testimony that all three people's DNA was on a bottle.

[00:16:31] Speaker 01:
And so having one piece of evidence where all three people's DNA is on it, but the rifle grip only has the two defendants, the jury can draw a rational conclusion from that.

[00:16:40] Speaker 01:
And lastly is the consciousness of guilt evidence.

[00:16:42] Speaker 01:
Johnson led the scene.

[00:16:44] Speaker 01:
He actually fled first, according to the bystander, Truman Navacucu, who saw him flee, and it was only 10 minutes later that the other two subjects fled.

[00:16:54] Speaker 01:
And he fled in a different direction from the rifle.

[00:16:57] Speaker 01:
And then lastly, he lied repeatedly to the police when he was apprehended.

[00:17:01] Speaker 01:
He lied about his name.

[00:17:02] Speaker 01:
his date of birth.

[00:17:04] Speaker 01:
He told Officer Harris he wasn't aware of any incident that was going on.

[00:17:07] Speaker 01:
He lied about the kind of car he'd been in.

[00:17:10] Speaker 01:
He said it was a Ford car, not a GMC truck.

[00:17:13] Speaker 01:
And then he told this false story to both Garland Navacuckoo and Officer Harris about having been at a party and being kicked out of a car.

[00:17:20] Speaker 02:
Counsel, can you address the juror issue?

[00:17:22] Speaker 01:
Yes, Your Honor.

[00:17:23] Speaker 01:
So Judge Campbell did not abuse his discretion in any way, and his factual findings were not clear error in denying these post-trial motions.

[00:17:31] Speaker 01:
With respect to the motion for a mistrial based on the juror supposedly feeling uncomfortable with sentencing, I would note first, all parties signed off on Judge Campbell's response.

[00:17:42] Speaker 01:
When the note came in, the parties were brought back in, it was actually Johnson's counsel who suggested, why don't we also add a reference again to instruction 26?

[00:17:51] Speaker 01:
All three parties approved that response.

[00:17:54] Speaker 01:
As Judge Mendoza noted during my colleague's argument, this is something that happens every day in trials.

[00:18:00] Speaker 03:
There was no request by defense counsel at the time that, you know, the note came that, oh my goodness, we have a juror discussing sentencing, that juror should be removed from the jury and a request for that.

[00:18:16] Speaker 03:
Is that correct?

[00:18:17] Speaker 01:
That is correct, Your Honor.

[00:18:18] Speaker 01:
And there was never actually a request to remove the juror ever.

[00:18:21] Speaker 01:
The note came in, the parties discussed an answer, all parties agreed on it, it went back and then later on they filed a motion for a mistrial.

[00:18:29] Speaker 01:
So it's hard to see how Judge Campbell could be held to have abused his discretion when he was doing what all of the parties said they were fine with him doing.

[00:18:38] Speaker 01:
I think sort of under the legal analysis, question one is does this note show juror misconduct and question two is

[00:18:45] Speaker 01:
Does the defendant establish prejudice?

[00:18:47] Speaker 01:
He has to meet both of those.

[00:18:49] Speaker 01:
I don't think he meets either.

[00:18:50] Speaker 01:
The note does not disclose that any juror was actually holding out.

[00:18:56] Speaker 01:
I think you could probably draw contrary conclusions from this note, but the concern of the case law that the parties discuss that requires a mistrial is when you have a juror disclosing what the vote count is, who the identity of the holdout is, and that juror knows the court knows, and that's what creates the problem because

[00:19:15] Speaker 01:
when the judge gives an Allen charge, that juror sort of interprets that as, well, I should change my vote.

[00:19:19] Speaker 02:
What about counsel's point that the follow-up call by the juror about feeling pressured with regards to the time?

[00:19:27] Speaker 01:
So a couple of responses to that, Your Honor.

[00:19:29] Speaker 01:
The first is it is categorically excluded by Rule 606B, as the lung case says that rule is a broad prophylactic for any use of that.

[00:19:40] Speaker 01:
Also, the court has the Marquez case that's cited in the answering brief, which is directly on point.

[00:19:45] Speaker 01:
In the Marquez case, the jury had actually been held to 11 o'clock on a Friday and to 10 o'clock on a Monday and then received a juror affidavit afterwards in which a juror said, we compromised our verdict because we didn't want to keep coming back.

[00:19:58] Speaker 01:
This court said that was within the judge's discretion to hold them that late.

[00:20:01] Speaker 01:
We're not anywhere close to that here.

[00:20:03] Speaker 01:
And that it was categorically barred by Rule 606B.

[00:20:06] Speaker 01:
So under the Marquez case, I don't think that the court could even consider it.

[00:20:11] Speaker 01:
Lastly, and I don't wish to sort of try to analyze it too much, but I think that call actually hurts the defendant's argument.

[00:20:18] Speaker 01:
Judge Campbell summarized it at ER 7 to 8, and he said that the jurors said they made a quick decision because the jurors wished to go home to northern Arizona for the weekend and not return on Monday, which says to me the jury was aware that they absolutely could return on Monday.

[00:20:34] Speaker 01:
As Judge Desai pointed out, Judge Campbell himself told the jury that they might be back on Monday in charging them and releasing the alternates.

[00:20:41] Speaker 01:
And I would also point out at ER 21, Judge Campbell made a factual findings that the jurors, quote, clearly understood that Monday deliberations were possible based on his colloquy.

[00:20:52] Speaker 01:
I think that is entitled to the highest level of clear error deference, and it isn't clear error.

[00:20:58] Speaker 01:
Fundamentally, jurors are presumed to follow their instructions, and a whole host of instructions told them, decide the case based on the evidence, not based on anything I say.

[00:21:07] Speaker 01:
That's instruction number one.

[00:21:09] Speaker 01:
as well as to decide, do not change an honest belief about the weight and effect of the evidence simply to reach a verdict.

[00:21:15] Speaker 01:
That's instruction 23.

[00:21:17] Speaker 01:
There's no reason to believe the jurors disregarded any of those instructions.

[00:21:21] Speaker 01:
Judge Campbell is well within his reasoned discretion, and he did what judges do every day.

[00:21:25] Speaker 01:
They provide an estimate, and he always spoke in terms of what he expected or what he predicted.

[00:21:30] Speaker 01:
He never even put it in the second person.

[00:21:32] Speaker 01:
He was always about himself or what the parties were doing.

[00:21:35] Speaker 01:
And if judges can't do that,

[00:21:37] Speaker 01:
They're in trouble because jurors need to be able to organize their lives.

[00:21:40] Speaker 03:
He didn't.

[00:21:42] Speaker 03:
I mean, the comment that they challenged was not in terms of himself.

[00:21:46] Speaker 03:
It was, I think the jury will complete today and be finished.

[00:21:51] Speaker 01:
And I would say that's the judge providing his expectation, I think, which is something that he's not saying you must or you will.

[00:21:59] Speaker 01:
He's giving his prediction of what he thinks the trial schedule will be, which I think judges have to be able to do.

[00:22:06] Speaker 03:
But this is a comment that's made after closing arguments.

[00:22:11] Speaker 03:
Yes, it is, Your Honor.

[00:22:12] Speaker 03:
And this is on Friday afternoon.

[00:22:14] Speaker 03:
So this is a suggestion that, I mean, it kind of communicates to the judge saying this is an easy case.

[00:22:20] Speaker 01:
I don't think I read that in, Your Honor.

[00:22:22] Speaker 01:
Certainly not in light of the judge's other comments, which again repeatedly informed the jury that they could be back.

[00:22:29] Speaker 01:
In fact, he told the alternates who were released in front of the whole jury panel, don't talk to anyone, because you might be back on Monday.

[00:22:36] Speaker 01:
And in light of all of the general instructions that he provided, I don't think a jury would read into that, that they had to conclude the case that day.

[00:22:46] Speaker 01:
And I think that the jury's call, noting that they didn't want to come back on Monday,

[00:22:50] Speaker 01:
shows, which again you can't consider under 606B, but even if you could, it shows they knew that they could come back on Monday and one juror may not have wanted to, but there's no evidence anyone changed their verdict because of it.

[00:23:04] Speaker 01:
In the absence of any further questions from the court, the United States would respectfully ask the court to affirm the judgment.

[00:23:17] Speaker 00:
Are there any further questions?

[00:23:19] Speaker 00:
If there's not, I was going to rest.

[00:23:21] Speaker 03:
All right.

[00:23:21] Speaker 03:
All right.

[00:23:22] Speaker 03:
Thank you.

[00:23:22] Speaker 03:
Council.

[00:23:22] Speaker 00:
Thank you very much.

[00:23:24] Speaker 03:
He's just argued will be submitted.