[00:00:00] Speaker 04:
The next case on the calendar, Caceres versus Bondi, has already been submitted on the briefs and record.

[00:00:07] Speaker 04:
U.S.

[00:00:07] Speaker 04:
versus Robert Alvin Justice is the next case for argument.

[00:00:13] Speaker 04:
You may approach, counsel.

[00:00:46] Speaker 03:
Good morning.

[00:00:47] Speaker 03:
Good morning.

[00:00:47] Speaker 03:
Good morning, Your Honors.

[00:00:49] Speaker 03:
Vicki Merope Buchanan on behalf of Robert Justice.

[00:00:53] Speaker 03:
I would like to reserve three minutes, if that's possible.

[00:00:55] Speaker 04:
All right.

[00:00:56] Speaker 04:
I'll try to help you out with TPI and the clock as well.

[00:00:59] Speaker 03:
It's unusual for a defendant to testify in a murder trial.

[00:01:04] Speaker 03:
Justice testified because, as the trial court indicated, only he and Carrillo knew what happened in the van on May 29, 2020.

[00:01:14] Speaker 03:
the night of the George Floyd protests in Oakland.

[00:01:18] Speaker 03:
Only Justice knew what he was thinking during the three hours he met with Stephen Carrillo until he drove the van across the intersection.

[00:01:27] Speaker 03:
As he soon discovered when he met Carrillo, Carrillo was a hypomanic, delusional, and paranoid, and had a van full of weapons.

[00:01:36] Speaker 03:
Justice's testimony was consistent with the FBI six-hour interview

[00:01:40] Speaker 03:
a few days before the incident.

[00:01:43] Speaker 03:
His undisputed testimony was that he did not intend to help Stephen Carrillo commit murder.

[00:01:49] Speaker 03:
Rather, he was trying to prevent Carrillo from shooting people.

[00:01:54] Speaker 00:
I mean, the jury heard that.

[00:01:56] Speaker 00:
The jury heard that theory and did not believe it.

[00:02:00] Speaker 00:
And I guess I struggle to see if you're arguing that the evidence was insufficient.

[00:02:05] Speaker 00:
I have a hard time seeing why a jury couldn't conclude that your client did have the required intent, given all the facts and everything he did before, during, and after.

[00:02:16] Speaker 03:
I disagree, because we don't know what he was doing.

[00:02:22] Speaker 03:
We do know what he was thinking.

[00:02:24] Speaker 03:
We have his testimony.

[00:02:25] Speaker 03:
There's only circumstantial evidence of what was going on.

[00:02:28] Speaker 03:
But because of the problems with what was before the court,

[00:02:33] Speaker 03:
It's impossible for the jury to know.

[00:02:35] Speaker 03:
There were so many things going against him.

[00:02:37] Speaker 04:
But what appellate issue is your best argument?

[00:02:39] Speaker 04:
Because now, on sufficiency of the evidence review, the prosecutor gets every inference in its favor.

[00:02:47] Speaker 04:
So what's your best argument that the verdict should be overturned?

[00:02:52] Speaker 03:
Based on errors one, in terms of the social media evidence, and the duress instruction.

[00:03:00] Speaker 03:
But there is no direct evidence.

[00:03:02] Speaker 04:
So the social media evidence, that's one of the issues you raised in your brief.

[00:03:08] Speaker 04:
What is your argument with regard to the social media?

[00:03:11] Speaker 04:
It's hard to argue that they're not relevant to the issue of intent.

[00:03:16] Speaker 03:
Some of them are relevant, but a lot of them are inflammatory.

[00:03:19] Speaker 03:
The most damaging part in terms of the social media

[00:03:24] Speaker 03:
is when the judge came out and said the reason she was letting in a lot of the inflammatory evidence was the jury needs to understand who this person is in front of you.

[00:03:35] Speaker 04:
Now this court... But the social media posts are directly relevant to the issue of intent, which the prosecutor carries the burden of proving, right?

[00:03:47] Speaker 03:
I don't think they prove intent.

[00:03:49] Speaker 03:
I think they prove that he had some ideas, but it doesn't prove anything about, I'm going to go out and murder someone.

[00:03:55] Speaker 03:
I'm going to go out and help someone murder someone.

[00:03:56] Speaker 03:
He had some beliefs, he had some ideas, he was liking things, but he never, ever, ever in his entire life had done anything violent, had followed through on anything.

[00:04:07] Speaker 03:
He didn't even belong to the Boogaloo movement.

[00:04:11] Speaker 03:
He was just spouting off like a lot of people do on social media.

[00:04:14] Speaker 00:
Well, I mean, if you're saying the social media doesn't prove he had the intent, I agree with you, that may be true,

[00:04:20] Speaker 00:
It was one piece of evidence, along with a whole lot of other evidence, the fact that he was with Carrillo in this van.

[00:04:27] Speaker 00:
We don't know exactly what they were saying to each other.

[00:04:30] Speaker 00:
He gave his version of that story.

[00:04:32] Speaker 00:
But he also got out of the van twice, I think, to walk around.

[00:04:37] Speaker 00:
When the van pulled out and the side door opened, the car continued to move forward.

[00:04:43] Speaker 00:
Afterwards, he

[00:04:45] Speaker 00:
didn't go and immediately report the incident.

[00:04:47] Speaker 00:
And so there's all kinds of other evidence that would suggest that he did intend to do it.

[00:04:52] Speaker 00:
And the social media evidence seems at least relevant to his intent, no?

[00:04:57] Speaker 03:
Well, I think that a lot of the reason the purpose of the judge allowed the social media evidence is what I was just mentioning.

[00:05:04] Speaker 03:
She wanted the evidence before the court so the jury would know who he is.

[00:05:10] Speaker 03:
This court in United States versus Curtin

[00:05:14] Speaker 03:
specifically said it's improper to have evidence so that the jury knows who the defendant is.

[00:05:21] Speaker 03:
This type of evidence carries with it an inherent potential to see defendants simply as a bad person and then to convict because of who he is.

[00:05:33] Speaker 03:
rather than what he did.

[00:05:34] Speaker 03:
The government amplified this in its closing argument.

[00:05:39] Speaker 03:
It argued that the weight of so many communications gives a better idea of who Robert Justice is and what he believed.

[00:05:47] Speaker 03:
Five times in its closing argument, it repeated that exact phrase, who he is and what he believes.

[00:05:55] Speaker 03:
for the jury to judge five of his actions, including the actions you talked about, Your Honor, getting out of the van, going back to the van, getting in the van in the first place, and then driving through the intersection.

[00:06:05] Speaker 00:
But I mean, his affiliations, his interests, his online activity, I mean, you could describe it as who he is, but it's also about what he was doing and why on that day.

[00:06:18] Speaker 00:
And that's where the jury was allowed to consider the evidence.

[00:06:22] Speaker 00:
And I don't see you making any other arguments about instructions that were erroneous or that should have been given.

[00:06:28] Speaker 00:
All we're talking about is should the social media evidence have been included or excluded.

[00:06:33] Speaker 03:
No, the second, probably the most important argument is about the duress instruction.

[00:06:39] Speaker 00:
Right, but what does that have to do with the social media?

[00:06:43] Speaker 03:
As far as the social media is concerned, it was presented to the jury five times that they are to judge this person by who he is rather than what he did.

[00:06:53] Speaker 03:
The government wasn't asking to say,

[00:06:55] Speaker 00:
I don't think anybody was telling the jury to judge him by who he is and not by what he did.

[00:07:02] Speaker 03:
It did five times.

[00:07:04] Speaker 03:
They said who he is and what he believes.

[00:07:08] Speaker 03:
They didn't say what he did, what he was thinking, what his intent was when he drove that van across the intersection.

[00:07:17] Speaker 02:
Isn't your argument on the mental and social posting

[00:07:20] Speaker 02:
Not so much under Rule 401 in terms of relevance, but in terms of whether or not the district court should have been more explicit in terms of a Rule 403 balancing test.

[00:07:29] Speaker 02:
Is that what you're arguing?

[00:07:30] Speaker 03:
Partially, yes.

[00:07:31] Speaker 03:
I mean, it was just overwhelming.

[00:07:33] Speaker 02:
But does the district court have to go explicitly and mention Rule 403 in terms of trying to balance the relevance under Rule 401 in terms of making an evidentiary decision?

[00:07:43] Speaker 02:
Is it required that the court has to actually explicitly go through Rule 403?

[00:07:47] Speaker 03:
I believe so under Curtin.

[00:07:48] Speaker 03:
I think they need to review for prejudice under 403.

[00:07:54] Speaker 02:
It isn't a question of it being relevant under Rule 401.

[00:07:56] Speaker 02:
It's clearly relevant in terms of the state of mind.

[00:07:58] Speaker 02:
It has to do with whether or not there was sufficient balancing.

[00:08:01] Speaker 02:
Isn't that really the crux of your argument?

[00:08:03] Speaker 03:
Partially, yes.

[00:08:04] Speaker 03:
And also that it was brought in for an inadmissible purpose.

[00:08:08] Speaker 03:
You cannot say that having the jury focus on who he is is appropriate.

[00:08:15] Speaker 03:
You know, he had some kooky ideas.

[00:08:18] Speaker 03:
He wasn't a member of the Gulu Boys, but he had some strange ideas.

[00:08:24] Speaker 03:
And if anybody had their social media out there and they're posting these things, a lot of people were posting these things.

[00:08:30] Speaker 03:
They didn't go out and murder someone.

[00:08:32] Speaker 04:
I think you're focusing a little bit too much on insisting that the evidence is not relevant, that you're kind of climbing an uphill battle there.

[00:08:43] Speaker 04:
It's relevant.

[00:08:43] Speaker 04:
The question is whether the prejudice outweighs any relevance value it has, right?

[00:08:51] Speaker 04:
So can you move on to explaining why it's so prejudicial that it outweighs any appropriate value this information had?

[00:09:01] Speaker 03:
The case of Curtin is helpful in that regard, because it's very similar, the sheer quantity of the evidence.

[00:09:10] Speaker 03:
The judge allowed them to put in 200 of these statements, and after two days of reading and publishing to the jury 80 of these statements, it was a long slog, as the government indicated.

[00:09:25] Speaker 03:
Well, as Curtin said when it

[00:09:27] Speaker 03:
when it remanded the case back to the court after it was reversed, it said, please rethink the number of these.

[00:09:37] Speaker 03:
It's a problem.

[00:09:39] Speaker 03:
It's a prejudicial problem if you have that many things out there.

[00:09:43] Speaker 03:
It's overkill.

[00:09:44] Speaker 03:
And that's what happened here.

[00:09:45] Speaker 03:
It was overkill.

[00:09:46] Speaker 03:
Yes, there are relevant documents.

[00:09:49] Speaker 03:
But for two solid days, that's nothing what the jury heard.

[00:09:55] Speaker 03:
I've got the entire volume three of the ER are those social media posts.

[00:10:01] Speaker 03:
And not everything he said was terrible.

[00:10:05] Speaker 03:
I mean, he didn't say terrible things.

[00:10:07] Speaker 03:
He liked terrible things.

[00:10:10] Speaker 03:
He didn't have any manifesto.

[00:10:11] Speaker 03:
He didn't write most of these things himself.

[00:10:14] Speaker 03:
He just liked memes.

[00:10:15] Speaker 03:
In fact, there's one of the postings that I noticed that he said he was

[00:10:19] Speaker 03:
He complained that they didn't have any means, that all the means were about guns.

[00:10:26] Speaker 03:
He didn't own a gun, by the way.

[00:10:27] Speaker 03:
He had no, he didn't want to touch a gun.

[00:10:29] Speaker 03:
But he said he was, as a libertarian, he was complaining that there weren't any means on taxes or censorship or that sort of thing.

[00:10:37] Speaker 03:
So, you know, he got, he was in a website.

[00:10:40] Speaker 03:
He got on the website at night.

[00:10:42] Speaker 03:
He went home.

[00:10:43] Speaker 03:
He worked.

[00:10:44] Speaker 03:
and then he came back and he was on the website and other websites all the time.

[00:10:47] Speaker 02:
It seems to me, and you made numerous references to Curtin, which is this court's ninth opinion in 2007, I believe, correct?

[00:10:54] Speaker 02:
Yes.

[00:10:55] Speaker 02:
But in that case, the trial court relied on evidence summaries, whereas here the district court was clearly engaged in terms of conducting a balancing.

[00:11:04] Speaker 02:
Some of the posts were not allowed.

[00:11:05] Speaker 02:
I think at least three were disallowed, correct?

[00:11:07] Speaker 03:
That's true.

[00:11:08] Speaker 02:
And some of these posts actually had a sympathetic value.

[00:11:11] Speaker 02:
Did he not indicate some kind of suicidal

[00:11:14] Speaker 02:
Tendencies at times in terms of difficulty with his loss of the custody of his children There are all kinds of things that came out in these posts.

[00:11:21] Speaker 02:
They might have even been Raised sympathy for him.

[00:11:25] Speaker 02:
Isn't that correct?

[00:11:26] Speaker 03:
That's that's correct.

[00:11:27] Speaker 03:
But also in terms of curtain that was one of the reasons the curtain court was concerned because the judges read summaries but

[00:11:38] Speaker 02:
It seems to me the question is did the district court not take steps to try to balance this in some way?

[00:11:42] Speaker 02:
That's why I asked the earlier question as to whether or not the district court has to make specific reference to 403 in terms of conducting what appears to have been a balancing effort here.

[00:11:52] Speaker 03:
I believe they need to make something because the judge did not balance the case and if she only balanced it by saying the jury needs to know who he is.

[00:12:04] Speaker 03:
in addition to the social media problem is that duress is not a defense argument.

[00:12:11] Speaker 03:
I mean that Mr. Justice never intended to put in a duress defense.

[00:12:20] Speaker 03:
Part of what goes along with a duress defense is that you have to be have committed the crime and he did not want to put in a duress defense.

[00:12:29] Speaker 02:
But as to that, didn't the defense counsel at trial

[00:12:33] Speaker 02:
The court agreed to certain suggestions made in terms of eliminating any risk of confusion.

[00:12:44] Speaker 02:
It almost seems like there was a waiver of any challenge to how the court instructed the jury.

[00:12:48] Speaker 03:
Well, the argument went on and on and on for months.

[00:12:52] Speaker 03:
over this instruction, so it was well thought.

[00:12:55] Speaker 03:
I cited the case law that it wasn't waived.

[00:12:58] Speaker 03:
I mean, you know, you finally have to give it, you have to say to the court, okay, let's try to make the best of this, but that doesn't concede that there was no error.

[00:13:06] Speaker 02:
Well, I think the actual, I could be wrong, but I thought the record reflects that the district court agreed to a change in the instruction from defense counsel, and defense counsel said another appellate issue resolved, we think that eliminates the risk of confusion.

[00:13:22] Speaker 02:
in terms of the district court's effort in that regard.

[00:13:25] Speaker 03:
Okay, that reduced the issue of confusion, but it doesn't get rid of the fact that the jury should not have been instructed on what he did not prove.

[00:13:36] Speaker 03:
I mean, it's a very bad instruction.

[00:13:38] Speaker 03:
It makes this very confusing.

[00:13:41] Speaker 03:
Yeah, some of the confusion is cleared up, but there's nothing in there.

[00:13:44] Speaker 03:
If you look at the

[00:13:45] Speaker 02:
But when Justice testified, he talked about being scared to leave, that he drove to the IRS building at Carrillo's direction, and et cetera, and yet you don't think he's sub selenio, essentially posturing a defensive duress?

[00:14:05] Speaker 03:
I'm sorry, I didn't.

[00:14:05] Speaker 02:
I mean, the point is essentially that his own testimony, justified, it seems he's proffering a defense of duress without using the phrase duress and sort of dancing around it.

[00:14:16] Speaker 03:
He's talking about how he felt, but he never promoted a defense of duress because he couldn't.

[00:14:24] Speaker 03:
The fact that he walked out of his worst fact is that he

[00:14:30] Speaker 03:
he had an opportunity probably to get away if he hadn't gone back.

[00:14:35] Speaker 02:
Twice.

[00:14:36] Speaker 03:
Well the first time he said that he went to find parking but he left all of his identification and everything in the van so he went back to get that.

[00:14:46] Speaker 03:
That's the worst fact but he has an explanation for it and it makes sense.

[00:14:51] Speaker 03:
So that is the worst fact.

[00:14:56] Speaker 03:
Just because you feel scared and

[00:14:59] Speaker 03:
Because you feel threatened doesn't mean that the court is going to give it, this is not a duress instruction.

[00:15:05] Speaker 03:
The instruction is really bad.

[00:15:06] Speaker 04:
Did you want to save a little bit of time, counsel?

[00:15:09] Speaker 03:
Yes, thank you.

[00:15:23] Speaker 01:
Good morning and may it please the court, Annie Shea for the United States.

[00:15:28] Speaker 01:
This court should affirm for three reasons.

[00:15:30] Speaker 01:
First, the district court did not abuse its discretion in instructing the jury on duress.

[00:15:36] Speaker 01:
That instruction was warranted by the very evidence and defense that justice presented at trial and its formulation was reasonable and legally correct.

[00:15:46] Speaker 01:
Second, the district court also did not abuse its discretion in admitting the social media posts where such evidence was highly provative to prove intent

[00:15:56] Speaker 01:
and to rebut justice's defense.

[00:15:58] Speaker 04:
Is it problematic in any way that the district court didn't explicitly weigh the 4-3 analysis, especially given the sheer volume of the social media posts that was admitted?

[00:16:10] Speaker 01:
Your Honor, I would say first of all, I think the record reflects a little bit differently.

[00:16:14] Speaker 01:
I think as my friend on the other side has

[00:16:19] Speaker 01:
noted, there's significant litigation, pretrial litigation, on both the duress issue and the social media posts.

[00:16:26] Speaker 01:
And so if you look at the motions in Lemonade that occurred from defense from the beginning, and then the government's opposition, and then the district court actually went through each of those 198 social media posts.

[00:16:41] Speaker 01:
It considered each of them, and then it wrote a written order in which it actually granted in part

[00:16:46] Speaker 01:
the defense's motion.

[00:16:48] Speaker 04:
So you're relying on the course of litigation to say that the district court implicitly did the 403 weighing analysis?

[00:16:55] Speaker 04:
Are you saying that there was an explicit weighing of the 403 analysis that I somehow missed in the record?

[00:17:01] Speaker 01:
Well, Your Honor, I think the entire issue was predominantly based off of 403.

[00:17:06] Speaker 01:
I think defense did concede and allow.

[00:17:10] Speaker 04:
But that was the context, so the district court implicitly did weigh the 403 analysis.

[00:17:13] Speaker 04:
Is that the argument?

[00:17:14] Speaker 01:
Yes, Your Honor.

[00:17:15] Speaker 01:
And then there was, in the district court's oral ruling, there was also a statement about prejudice.

[00:17:21] Speaker 01:
She did say that.

[00:17:22] Speaker 01:
She didn't go through each of the factors necessarily, but I don't think that's required here when it's very clear that the entire discussion

[00:17:28] Speaker 01:
at length and extensively was about these very factors, whether or not this was far too remote or not probative enough, or there was going to be some danger of unfair prejudice.

[00:17:39] Speaker 01:
She found that these were just so directly relevant to the issues of intent, plan, motive, all the issues that were facts of consequence at trial.

[00:17:48] Speaker 01:
And she really carefully, I think, reached that conclusion that these would be immiscible.

[00:17:54] Speaker 01:
I also want to point out

[00:17:56] Speaker 01:
Defense originally agreed that, I think, in 94 of the posts that were noted were actually admissible, didn't object to those.

[00:18:03] Speaker 01:
Adjected to a number of others, obviously, over the course of litigation.

[00:18:09] Speaker 01:
But ultimately, the government only presented 73 of those.

[00:18:13] Speaker 01:
And I provided a cell spreadsheet with, I think, the physical exhibit to the court with the government's filing that lays out all the admitted exhibits.

[00:18:24] Speaker 01:
The ER-417 chart?

[00:18:29] Speaker 01:
I do reference it, Your Honor, and there's a specific exhibit.

[00:18:37] Speaker 01:
Numbers are actually referenced in my brief.

[00:18:39] Speaker 01:
They range generally from Exhibits 1008 until approximately 1138.

[00:18:48] Speaker 01:
Those are including both the Facebook posts and the communications between Justice and Mr. Carrillo.

[00:18:57] Speaker 01:
However, I was referencing, there was an Excel spreadsheet that I provided with the physical exhibits that were in a CD that was transmitted to the court pursuant to a separate motion.

[00:19:11] Speaker 01:
Your Honor, to move to the duress instruction, because I do think that this is worth discussing, I suppose I should start with what justice is not disputing.

[00:19:25] Speaker 01:
Justice is not contending that duress was an available defense here at trial.

[00:19:32] Speaker 01:
It seems that he no longer contends, at least according to his reply brief, that a instruction along the lines of duress is not a defense or available defense as a matter of law, such as one in Davidson, is also not problematic.

[00:19:49] Speaker 01:
So it seems his claim is essentially about maybe the formulation and the fact that the

[00:19:55] Speaker 01:
district court defined duress and just gave the elements of duress, which again he also agrees was legally correct.

[00:20:02] Speaker 01:
It matches the Ninth Circuit instruction and the Ninth Circuit law on the duress elements.

[00:20:07] Speaker 01:
So essentially the claim seems to be that the district court erred here by giving a legally correct instruction defining duress in a case where the evidence that justice wanted to raise supports either both potentially a duress inference and the intent inference.

[00:20:24] Speaker 01:
And what the district court did here was it allowed justice to present his duress evidence, essentially his narrative that, you know, he never had an intent, he showed up and only continued to help Carrillo because he was forced to and under fear of Mr. Carrillo.

[00:20:42] Speaker 01:
But by permitting that, it also appropriately gave a limiting instruction to make sure that the jury was not going, making or drawing an impermissible duress inference from that same evidence, but could draw

[00:20:53] Speaker 02:
a lack of intent inference from that evidence that justice was allowed to present.

[00:21:08] Speaker 02:
The defense counsel asked to add the phrase, while the rest is not a defense to the crimes charged here, the government must still prove beyond a reasonable doubt that the defendant acted with the intent to help commit the charged crime.

[00:21:19] Speaker 02:
And that is in fact added to the boilerplate, correct?

[00:21:22] Speaker 02:
That's not in the form instructions, but that was added by defense counsel's request.

[00:21:27] Speaker 01:
Yes, Judge Bennett, you are correct in that.

[00:21:29] Speaker 01:
I would also add to that point that this duress instruction and the way it was formulated was a result of, again, as my friend notes, significant litigation and discussion.

[00:21:39] Speaker 01:
And there were several iterations as they were working through what this looked like.

[00:21:43] Speaker 01:
And defense had significant input in this.

[00:21:46] Speaker 01:
And the court eventually gave essentially what the defense counsel wanted.

[00:21:50] Speaker 01:
There was, in the court's original proposal, language along the lines of, here are the parties agree.

[00:21:57] Speaker 01:
that the evidence cannot be used to support a defense of duress because duress is not a defense to the particular crimes charged here.

[00:22:03] Speaker 01:
That was one way.

[00:22:05] Speaker 01:
That comes from ER 2632.

[00:22:07] Speaker 01:
There was an instruction also had a sentence about how defense contends that there was no intent here and how the defendant's mental state should not be confused with duress.

[00:22:18] Speaker 01:
That comes from ER 2601, 2604, and 2607.

[00:22:22] Speaker 01:
Again, there was significant back and forth.

[00:22:24] Speaker 01:
And the fact is, defense counsel

[00:22:27] Speaker 01:
provided a lot of input into this formulation.

[00:22:31] Speaker 01:
It was considered and largely adopted by the court.

[00:22:35] Speaker 01:
And then at the end of this, the defense counsel said, oh, another appellate issue resolved.

[00:22:41] Speaker 01:
It seems to be, and again, I want to be clear that we did not contend that the

[00:22:47] Speaker 01:
There's two aspects to the duress challenge.

[00:22:49] Speaker 01:
There's the giving of instruction, which we don't believe was waived, that was preserved.

[00:22:53] Speaker 01:
And then there's a formulation of the instruction.

[00:22:55] Speaker 01:
And it's difficult to really ascertain exactly what justice is raising at this point or actually challenging, because it seems, based off of their Davidson concession, that

[00:23:04] Speaker 01:
some sort of instruction about this not being an available defense as a matter of law is appropriate.

[00:23:09] Speaker 04:
However, with regard to the latter point, the formulation, it should be at least... As I understand it, defense is saying this instruction as a whole is confusing.

[00:23:17] Speaker 04:
I think the concern is that even though he

[00:23:22] Speaker 04:
is not entitled to present a duress defense.

[00:23:26] Speaker 04:
His statements about why he was acting the way he did under essentially a threat would not be considered to negate intent.

[00:23:35] Speaker 04:
And so I take it the government's response is that the defense got what it wanted and that distinction between not having duress defense available but yet having all of that evidence that the defense wanted

[00:23:49] Speaker 04:
to be considered, to be considered for purposes of negating intent, that that was essentially made clear to the jury with the clarification that the defense asked for and the court accepted and gave the jury that instruction, right?

[00:24:03] Speaker 04:
The part about the government still has to prove beyond a reasonable doubt that the defendant acted with the intent and also that the same evidence can be used to argue different factual conclusions and then at closing,

[00:24:17] Speaker 04:
each side is entitled to make whatever arguments they wanted to make with the evidence that came in.

[00:24:24] Speaker 01:
Yes, Your Honor.

[00:24:26] Speaker 01:
I would say as far as the risk of confusion, I think, again, that is a formulation or language question, whether or not this particular instruction here really led to any confusion.

[00:24:37] Speaker 01:
And so I would

[00:24:38] Speaker 01:
First, look at the actual express language.

[00:24:40] Speaker 01:
There's nothing in this actual instruction, again, that... Well, that's what I'm saying.

[00:24:46] Speaker 04:
Any risk of confusion, if there was a risk, it's essentially resolved with the clarification the defense asked for and got.

[00:24:55] Speaker 04:
Yes, Your Honor.

[00:24:55] Speaker 04:
I would agree with that.

[00:24:56] Speaker 04:
Yes, Your Honor.

[00:25:02] Speaker 01:
Your Honor, briefly with evidentiary sufficiency, I think the court well recognizes the differential standard to the jury when it comes to evidentiary sufficiency.

[00:25:12] Speaker 01:
Again, there was more than sufficient evidence here for a rational juror to conclude that Justice Wilfully participated and had the intent to help Carrillo commit the shooting and murder and attempted murder of these federal security guards.

[00:25:28] Speaker 01:
I just briefly want to just

[00:25:31] Speaker 01:
point out the evidence in this case was not just a social media post.

[00:25:35] Speaker 01:
This was a murder that was captured on camera.

[00:25:37] Speaker 01:
And in addition to that, there was extensive surveillance footage of Justice's actions before and during this particular murder.

[00:25:45] Speaker 01:
And in addition to that, there were his communications with Carrillo leading up to and after, as well as his conduct after.

[00:25:55] Speaker 01:
All of that is very strong circumstantial evidence of intent here.

[00:26:00] Speaker 01:
And under the deferential evidentiary sufficiency standard, this court should affirm.

[00:26:06] Speaker 00:
Your friend on the other side emphasized points maybe made by the court about social media posts show who he is, who justice is.

[00:26:13] Speaker 00:
Do you want to address, I don't know if it was one comment that the court made or more than one, but maybe you want to address that point.

[00:26:21] Speaker 01:
Yes, Your Honor, absolutely.

[00:26:23] Speaker 01:
These were comments that were made, again, during the closing argument of the government.

[00:26:28] Speaker 01:
And I would ask the court to look at

[00:26:30] Speaker 01:
the argument in the context that it was given and the full argument that every single time that phrase was used, it was with who he is and what his state of mind was the night that this happened or what he believed.

[00:26:43] Speaker 01:
And those issues were certainly facts of consequence at this trial because again, one, because of the intent element here requires, you know, advanced knowledge and that he acquired that knowledge before he even participated or actually acted in this crime.

[00:26:57] Speaker 01:
That comes from the instructions on the

[00:26:58] Speaker 01:
on the elements, but two, it was especially of consequence of this trial based off of Justice's defense and his narrative that he put forth.

[00:27:09] Speaker 02:
And so... And that narrative included testimony as to constant pressure from Corrello, correct?

[00:27:15] Speaker 01:
Yes, Your Honor.

[00:27:15] Speaker 01:
He said several times, and Judge Gonzalez-Rogers below noted this on the record, that he, throughout his testimony, said several times about how fearful he was of Carrillo, which is why he did what he did.

[00:27:30] Speaker 01:
Again, his narrative was that he showed up that night, he wanted to attend these George Floyd protests, had met Carrillo online a day or two before, was just getting a ride and found himself in a car with

[00:27:41] Speaker 01:
a crazy dangerous person who he's very afraid of and he had no intent.

[00:27:45] Speaker 01:
So the social media posts here and all the evidence that the government put forth and had to put forth to meet its burden was necessary and appropriate and proved his intent beyond a reasonable doubt.

[00:28:01] Speaker 01:
If there are no further questions.

[00:28:05] Speaker 01:
Thank you.

[00:28:16] Speaker 03:
With regard to the duress instruction and the arguments of counsel, the counsel from the very beginning said he didn't think there should be a duress instruction, but pretty early on said, okay, we can have a duress instruction, and here's what I propose.

[00:28:33] Speaker 03:
While there isn't a defense of duress, the jury can consider the evidence for state of mind.

[00:28:39] Speaker 03:
That's very simple.

[00:28:40] Speaker 03:
That would have taken care of everything that

[00:28:42] Speaker 03:
that the judge was concerned about, that the jury would assume there was some duress by saying the words threatened, scared, concerned, those kinds of words.

[00:28:50] Speaker 03:
In the Davidson case, cited by the government, the court gave almost an identical instruction.

[00:28:57] Speaker 03:
That would have been fine.

[00:28:59] Speaker 03:
The trial counsel consistently and thoroughly kept saying, don't put in these elements.

[00:29:06] Speaker 03:
It's confusing.

[00:29:07] Speaker 03:
And not only is it confusing, it somehow leads the jury to think that there was something wrong with the way that he testified at trial.

[00:29:16] Speaker 03:
And so they're saying, so just ignore him.

[00:29:18] Speaker 03:
There's no defense of duress because maybe he wasn't scared.

[00:29:23] Speaker 03:
Maybe he didn't prove he was scared.

[00:29:25] Speaker 03:
Or maybe he didn't prove that Korea even threatened him to begin with.

[00:29:31] Speaker 00:
I mean, it seems to be reading a lot into the instruction.

[00:29:34] Speaker 00:
The instruction basically just defines duress kind of as a legal matter.

[00:29:40] Speaker 00:
And you might think that people, laypeople, might not know what that is.

[00:29:43] Speaker 00:
So it could be helpful to tell them.

[00:29:45] Speaker 03:
I don't think it's necessary to tell them, because why would you anticipate some defense that really wasn't there?

[00:29:50] Speaker 03:
It wasn't given.

[00:29:51] Speaker 03:
Yes, the words were used.

[00:29:53] Speaker 03:
I think it's different than the Rodriguez case, because it was

[00:29:59] Speaker 03:
This was his entire thing from the beginning.

[00:30:02] Speaker 03:
It's his state of mind.

[00:30:04] Speaker 03:
Why did he stay in the van in the first place?

[00:30:07] Speaker 03:
Why did he walk across the parking lot?

[00:30:10] Speaker 03:
Because he was afraid.

[00:30:11] Speaker 03:
Because Carrillo said he was going to shoot the bus driver.

[00:30:17] Speaker 03:
If you say you're scared and you did something, then you get an instruction saying, oh, but that doesn't qualify for a real honest to God defense.

[00:30:27] Speaker 03:
That's bad.

[00:30:31] Speaker 03:
What's the point of that?

[00:30:32] Speaker 03:
It was to stack the deck against him even more than it already was with the video evidence.

[00:30:39] Speaker 04:
All right.

[00:30:39] Speaker 04:
Thank you, counsel.

[00:30:40] Speaker 04:
Thank you.

[00:30:43] Speaker 04:
US versus justice is submitted.