[00:00:00] Speaker 03:
Good morning, everyone, and welcome to the Ninth Circuit.

[00:00:03] Speaker 03:
We have one matter on calendar today.

[00:00:05] Speaker 03:
And counsel, I see you have approached.

[00:00:10] Speaker 03:
Go ahead.

[00:00:11] Speaker 03:
If you want to reserve time, that's fine.

[00:00:12] Speaker 03:
Just mind the clock if you do so.

[00:00:14] Speaker 01:
Thank you, Your Honor, and may it please the court.

[00:00:16] Speaker 01:
My name is Elizabeth Daly.

[00:00:17] Speaker 01:
I'm here on behalf of the appellant, Tony Klein, and I do plan to reserve five minutes for rebuttal.

[00:00:22] Speaker 03:
Very well.

[00:00:23] Speaker 01:
This was a close case.

[00:00:25] Speaker 01:
The government's allegations of abuse were not supported by any video surveillance, physical, or forensic evidence.

[00:00:33] Speaker 01:
And the defendant not only had no criminal record, but had passed two independent polygraph examinations, categorically denying any wrongdoing.

[00:00:43] Speaker 02:
And I take it that evidence was not presented to the jury.

[00:00:46] Speaker 01:
No, Your Honor, that evidence was inadmissible.

[00:00:48] Speaker 01:
But it's part of the context that this court can consider.

[00:00:51] Speaker 02:
Asking us to consider evidence that was not admitted below as part of the record?

[00:00:56] Speaker 01:
Not for purposes of harmless error, of course.

[00:00:58] Speaker 01:
The harmless error determination is made on the basis of the trial evidence.

[00:01:04] Speaker 01:
However, it's part of the overall context that this court should know about.

[00:01:07] Speaker 02:
So this was a she said case, but there were 21 she says.

[00:01:11] Speaker 01:
That's correct.

[00:01:12] Speaker 01:
There were 17 who ended up testifying at trial.

[00:01:16] Speaker 01:
But the circumstances I raise carry that any error in this case carry the very real risk that an innocent man was sent to prison.

[00:01:26] Speaker 01:
This appeal challenges four rulings that each independently warrant reversal and that cumulatively rendered the trial fundamentally unfair.

[00:01:34] Speaker 01:
I plan to address each of the issues in the order presented.

[00:01:38] Speaker 01:
If the court wishes to redirect me, of course, I'm happy to do that.

[00:01:42] Speaker 01:
First, the testimony about Cameron Basler's recruitment of other inmates to lie about Mr. Klein was relevant and admissible, and it should not have been excluded.

[00:01:52] Speaker 01:
The basic test for relevance is met here, because the key question at trial

[00:01:58] Speaker 01:
was whether the complainants' reasons for making allegations were because they had in fact been subjected to sexual abuse or was it because they had joined a scheme that was being propagated at Coffee Creek to lie specifically about Mr. Klein.

[00:02:15] Speaker 01:
The fact that Basler was advertising this false claim scheme, that she was recruiting inmates to join it, and explaining all of the reasons that they should do that.

[00:02:26] Speaker 02:
Ms.

[00:02:26] Speaker 02:
Daley, the problem I'm having with the argument is that

[00:02:30] Speaker 02:
As I understood the proffer hearing outside the presence of the jury, you did not have an out of court witness who could testify to actual attempted recruitment of one of the victims in the case.

[00:02:49] Speaker 02:
Is that correct?

[00:02:50] Speaker 02:
It was another inmate talking to a witness who said,

[00:02:58] Speaker 01:
That's correct.

[00:02:59] Speaker 01:
The exception of AV-15 was testified to be part of this game with Basler.

[00:03:06] Speaker 02:
And AV-15, was that one of the counts that was dismissed before trial?

[00:03:10] Speaker 01:
AV-15 was an uncharged complainant, so it wasn't dismissed.

[00:03:13] Speaker 01:
She testified about abuse, but her claims were never charged.

[00:03:17] Speaker 02:
So how did the district court err as a matter of evidence law?

[00:03:22] Speaker 02:
in excluding what is clearly hearsay, an out-of-court statement offered to prove the truth of the existence of a conspiracy to frame your client.

[00:03:30] Speaker 01:
Sure.

[00:03:31] Speaker 01:
And I think those are two, a relevance question and a hearsay question.

[00:03:34] Speaker 01:
So I want to address them in those, first, the relevance.

[00:03:37] Speaker 02:
That means view it under an abuse of discretion standard, correct?

[00:03:40] Speaker 01:
Well, I think relevance is a question of law.

[00:03:42] Speaker 01:
And the district court got the relevance wrong here.

[00:03:44] Speaker 02:
Under 403 and 404B balancing, you think that's a legal question?

[00:03:49] Speaker 01:
Under 401 and 402, that's a legal question.

[00:03:51] Speaker 01:
And the court made a legal ruling about relevance before it made the 403 balancing.

[00:03:56] Speaker 02:
Is that pretty heavily fact dependent, though?

[00:03:58] Speaker 02:
on the scales of justice, the facts would drive the analysis?

[00:04:04] Speaker 01:
This court's opinion and evidence would indicate that it's de novo review of relevance and that when a 403 balancing test is conducted based on a mistaken perception as to relevance, then there's no deference to that opinion.

[00:04:19] Speaker 01:
But I'd like to address why we don't.

[00:04:20] Speaker 01:
I mean, the government's point is we have to have direct evidence.

[00:04:24] Speaker 01:
Some witness who says, yes, Basler's recruitment went to this complainant.

[00:04:28] Speaker 01:
This court treats direct evidence and circumstantial evidence equally.

[00:04:33] Speaker 01:
And the jury here was instructed on that.

[00:04:36] Speaker 01:
And what we do have is actually very powerful and explicit testimony about the way that information was shared at Coffee Creek.

[00:04:44] Speaker 01:
And so it's not just the common sense that if you have this type of encouragement to do something in a group environment that people are more likely to do it.

[00:04:51] Speaker 01:
even if you don't have that direct link.

[00:04:55] Speaker 01:
But we also have, for example, AV7 testified that people were talking about Klein, and when she was asked what was everybody talking, she said, if you start a small rumor at a coffee shop and it goes around a small tiny town, the rumor is going to go around regardless.

[00:05:12] Speaker 02:
But that's the whole purpose of the hearsay rule, is to exclude that kind of post office testimony.

[00:05:20] Speaker 01:
It would be hearsay if it was offered for the truth of Cameron Basler's statement that she planned to lie, but Cameron Basler's credibility is not at issue.

[00:05:30] Speaker 01:
The question is, were those statements made?

[00:05:33] Speaker 01:
The critical issue here is the recruitment.

[00:05:36] Speaker 01:
Whether Cameron was just blowing smoke doesn't matter.

[00:05:41] Speaker 01:
The question is, did she say these things to Miss Beaver?

[00:05:44] Speaker 01:
Because that's what propagates this joint scheme.

[00:05:47] Speaker 01:
It's not a situation where we're saying that the jury had to believe that false claims were being made by Miss Basler.

[00:05:54] Speaker 02:
In order for the jury to accept Miss Beaver's testimony that she was trying to get other people to make false claims But you're asking the jury to make the assumption that she actually did contact the other victims In an attempt to recruit them and as I understand it That's an inference that you think the jury could have drawn from this circumstantial evidence

[00:06:19] Speaker 01:
Right, and again, I think that's jumping back to relevance.

[00:06:22] Speaker 01:
The hearsay is answered 100%.

[00:06:24] Speaker 02:
I'm struggling with trying to figure out, because you don't have a more direct causal connection to the actual victims of the crime here.

[00:06:32] Speaker 02:
I'm struggling as to why the district court erred after listening to the proffer in ruling that it was excludable.

[00:06:43] Speaker 01:
Sure, and I think it's because the district court discounted the reasonable inferences that could be drawn.

[00:06:48] Speaker 01:
So not only do we have these very explicit, for example, AV17 talked about specifically rumors about Basler and Klein, and she says they get around pretty quickly to everyone.

[00:06:58] Speaker 01:
And then we know that these particular women were connected to Basler.

[00:07:02] Speaker 01:
Eight of the 17 complainants knew Basler, including AV6, who was her bunkie in minimum, AV17, who grew up with Basler,

[00:07:12] Speaker 01:
And importantly, AV8 and AV9, whose claims both resulted in acquittal, had named Basler in connection with these offenses.

[00:07:20] Speaker 01:
So AV8 had said she was referred to an attorney by Basler, and AV9 said that Basler was a witness to her abuse.

[00:07:29] Speaker 01:
And so the government chose not to bring this witness, who was apparently in the room when AV9 was claimed that these events happened.

[00:07:38] Speaker 01:
The jury acquitted on that.

[00:07:40] Speaker 01:
Had it known about Basler's attempts to recruit inmates and this very close connection to AV9, AV8, and as we've described in our brief, this sort of web of connections that's

[00:07:52] Speaker 01:
expand from there, this was a very small cohort of individuals who brought these claims, even though the evidence was that Mr. Klein provided equal care to all 1,000 inmates at Coffee Creek.

[00:08:04] Speaker 01:
The jury can draw inferences from those connections that I think the district court discounted in its relevance analysis.

[00:08:10] Speaker 02:
I take it the argument was made during closing argument by the defense.

[00:08:15] Speaker 01:
The argument was made, but it doesn't substitute for evidence.

[00:08:19] Speaker 01:
And I think it fell flat because there were PowerPoint slides about connections to Basler, but we didn't have the goods.

[00:08:26] Speaker 01:
We didn't have Basler saying, I'm recruiting people.

[00:08:29] Speaker 01:
We didn't have Miss Beaver saying, this is what Cameron Basler was doing in custody.

[00:08:33] Speaker 01:
I'm rounding up people to lie about Mr. Klein.

[00:08:36] Speaker 01:
I think that's powerful evidence.

[00:08:37] Speaker 01:
It's not offered for its truth.

[00:08:39] Speaker 02:
But you did have a substantial amount of impeachment evidence, did you not, that you explored through cross-examination of the government's witnesses?

[00:08:49] Speaker 01:
I think that's correct, that this was a very close case.

[00:08:52] Speaker 01:
And any bit of extra defense evidence that should have been admitted can't be deemed harmless.

[00:08:56] Speaker 02:
I guess the question becomes, at what point is the district court abusing its discretion when it draws the line and limits cross-examination to what the district court determined was irrelevant testimony?

[00:09:08] Speaker 01:
And this was about the defense evidence, not about cross-examination.

[00:09:11] Speaker 01:
And so when- No, no, no.

[00:09:13] Speaker 02:
I understand that.

[00:09:14] Speaker 02:
But the district court, this is not a case where the district court excluded the defense from introducing any evidence of impeachment as to all these other witnesses.

[00:09:24] Speaker 01:
What was precluded was the only evidence the defense had available about collusion.

[00:09:29] Speaker 01:
There was other testimony about, for example, individual bad actors who had decided to make false claims because they wanted money.

[00:09:38] Speaker 01:
And so we had that.

[00:09:39] Speaker 01:
But what we didn't have was exactly what the government monopolized, was saying, but they weren't working together.

[00:09:45] Speaker 01:
They were just individual.

[00:09:46] Speaker 02:
You had evidence that some of the victim witnesses had

[00:09:50] Speaker 02:
Been convicted of crimes involving they had all been convicted of crime, but some of them I assume maybe were fraud or many many identity theft convictions Okay, that's correct and the jury heard all that

[00:10:04] Speaker 01:
The jury did, but what they didn't hear was that somebody was recruiting inmates to lie about Mr. Klein.

[00:10:10] Speaker 01:
That was completely excluded.

[00:10:11] Speaker 01:
And the sanitized testimony about AV-15 that came into trial was a little bit misguiding in that sense, because the way it came out was not that AV-15 and Ms.

[00:10:24] Speaker 01:
Basler were working together.

[00:10:25] Speaker 01:
It was that AV-15 independently made false allegations, that she wanted to make false allegations because she was suing ODOC.

[00:10:34] Speaker 01:
But the jury never heard that she was working with Cameron Basler, and that Cameron Basler was trying to get other people involved.

[00:10:40] Speaker 01:
It was the how.

[00:10:41] Speaker 01:
It was the why.

[00:10:41] Speaker 01:
How do we make these claims?

[00:10:43] Speaker 01:
How do we make them more believable?

[00:10:46] Speaker 01:
And to the point that she's saying we could fabricate DNA evidence.

[00:10:49] Speaker 01:
And so they're suggesting they're talking about ways to make this work amongst themselves.

[00:10:55] Speaker 01:
And it was reported contemporaneously to Nurse Gina Melisse.

[00:10:59] Speaker 01:
If the court doesn't have questions, I can move on to the second issue, which I think goes hand in hand because it's another exclusion of defense evidence.

[00:11:07] Speaker 01:
When we look at harmless error, we look at it cumulatively.

[00:11:10] Speaker 01:
And the testimony that Mr. Klein was not flirtatious with inmates should have been admitted because it was proper rebuttal.

[00:11:18] Speaker 01:
The government's argument on this point, I think, rests on a misunderstanding of the type of evidence that was being rebutted.

[00:11:25] Speaker 01:
The government's arguments go to specific instances of alleged sexual misconduct, but that's not all that they elicited in their case in chief.

[00:11:35] Speaker 01:
They specifically brought out testimony about Mr. Klein's interactions with inmates in general, his demeanor with inmates.

[00:11:44] Speaker 01:
And that testimony was important to the government's theory because they said that his flirtatiousness was part of his plan to groom inmates, to get them to drop their defenses and break down professional barriers.

[00:11:55] Speaker 02:
And why is that not admissible under Rule 404B?

[00:11:59] Speaker 02:
That evidence came in our evidence was excluded plan of evidence of planning intent

[00:12:05] Speaker 01:
The court did admit it under Rule 404B and did not reach the question of whether it was inextricably intertwined.

[00:12:12] Speaker 01:
But our position is that the contrary, the contradictory defense evidence that he was not flirtatious was never heard by the jury.

[00:12:20] Speaker 02:
As I understand it, you wanted to call a number of witnesses who would say, I worked with Mr. Klein and I never saw any evidence that he engaged in such behavior.

[00:12:31] Speaker 01:
Correct.

[00:12:32] Speaker 01:
So essentially the mirror evidence to what the government was allowed to prove.

[00:12:35] Speaker 02:
Why is that not the same thing as saying, I've ridden with Ms.

[00:12:39] Speaker 02:
Daley on 12 different occasions and I've never seen her run a stop sign.

[00:12:44] Speaker 02:
But Ms.

[00:12:45] Speaker 02:
Daley is charged with running a stop sign on another occasion.

[00:12:49] Speaker 01:
Because the government opened the door to how Mr. Klein interacted with inmates on a regular basis.

[00:12:55] Speaker 02:
Under Rule 404B.

[00:12:56] Speaker 01:
So if the government had been allowed to present evidence that Ms.

[00:13:00] Speaker 01:
Daley regularly runs lights because it's relevant to my intent, then I should have been allowed to offer my husband's testimony who says, you know.

[00:13:09] Speaker 02:
She's a very careful driver.

[00:13:11] Speaker 01:
Yes.

[00:13:11] Speaker 02:
She would never do such a thing.

[00:13:12] Speaker 01:
She would never.

[00:13:12] Speaker 01:
And it's not character evidence because it's contradictory.

[00:13:16] Speaker 01:
It goes to intent in this case because that's how the government used it.

[00:13:20] Speaker 01:
The government also argued that it was inextricably intertwined with the allegations of abuse because it was, in the government's view, doing this, being flirtatious and friendly, was getting them to drop their defenses.

[00:13:30] Speaker 01:
And so we were entitled to show that he wasn't that way.

[00:13:32] Speaker 01:
We disagreed.

[00:13:33] Speaker 02:
Why isn't that relevant properly, evidence relevant and admissible as to grooming potential victims?

[00:13:42] Speaker 01:
It was admissible, and the jury heard it, but they did not hear our proof that he wasn't.

[00:13:47] Speaker 01:
We believed that those witnesses were wrong, lying, mistaken, misperceiving.

[00:13:52] Speaker 01:
There was only one staff witness who testified to that.

[00:13:55] Speaker 01:
And we weren't allowed to bring in a staff witness who would have said that Mr. Klein was always professional whenever she saw him.

[00:14:01] Speaker 01:
And I think this goes not just to rebuttal,

[00:14:04] Speaker 01:
but also to our defense of implausibility.

[00:14:07] Speaker 01:
Because our defense was that there were all of these described interactions that would have raised red flags.

[00:14:12] Speaker 01:
Mr. Klein was allegedly ducking into closets in order to perform sex acts, but nobody noticed him following an inmate into a closet.

[00:14:22] Speaker 01:
in an environment where they are regularly and repeatedly trained that that's inappropriate conduct and so there's testimony that you're never alone at coffee creek but many many inmates claimed that they were mysteriously alone with him that's not entirely true is that i thought there were times when

[00:14:38] Speaker 02:
if there were two nurses assigned to the medical unit, one might be off in another pod or carrying a lab sample someplace.

[00:14:47] Speaker 01:
That's right.

[00:14:48] Speaker 01:
It was these very rare select instances that staff witnesses said they would try to make less amounts of time.

[00:14:55] Speaker 01:
And so if somebody had been, like Mr. Klein had been over this period of months repeatedly, there were 32 claimed sex acts.

[00:15:03] Speaker 01:
that were brought into, that were noticed.

[00:15:07] Speaker 01:
And over this short period of months, for him to be alone that many times and nobody ever walked in, you know, there were brazen allegations where there was a nurse right outside of the room and he was engaged in something according to these inmates.

[00:15:19] Speaker 01:
I think that the defense evidence that they didn't notice anything was not only rebuttal to this grooming, but it was also direct evidence of our implausibility defense.

[00:15:29] Speaker 02:
Is your theory then that some of the other correctional officers or medical clinic staff engaged in a cover a conspiracy to cover up Mr. Klein's activities?

[00:15:41] Speaker 02:
Is that is that what you were going to argue based on that evidence?

[00:15:44] Speaker 01:
100% not, that these were all highly trained professionals who were on alert.

[00:15:49] Speaker 01:
Their training made them look for whether people were trying to be alone, look for whether people were alone in a room, whether there was any unprofessional interactions between Mr. Klein and the inmates.

[00:16:00] Speaker 02:
And if they observed anything, they had an obligation to report the behavior.

[00:16:04] Speaker 02:
Correct.

[00:16:05] Speaker 01:
And I see that I'm into my- You want to reserve?

[00:16:07] Speaker 01:
I do.

[00:16:08] Speaker 01:
All right, you got it.

[00:16:09] Speaker 01:
Thank you.

[00:16:34] Speaker 00:
Good morning, may it please the court, Jason Lee for the United States.

[00:16:37] Speaker 00:
Over the course of a two and a half week trial, the jury heard 17 women describe coming to a medical unit at Coffee Creek seeking medical treatment and care, and instead being sexually assaulted and raped by Tony Klein.

[00:16:51] Speaker 00:
On appeal, he challenges a variety of procedural and evidentiary rulings, but each of those rulings is subject to a very deferential standard of review by this court, and each ruling should be affirmed.

[00:17:02] Speaker 00:
I'd like to start with the first ruling that was described by my friend on the other side, the exclusion of testimony by Beaver about statements made by Ms.

[00:17:14] Speaker 00:
Baszler.

[00:17:16] Speaker 00:
Judge Talman, I think you honed in on the main question here, which was there is no linkage between these comments that were excluded.

[00:17:26] Speaker 00:
It was a discussion in a medical infirmary, one-on-one, between Basler and Basler, that that is somehow relevant to the other accounts of sexual assault and rape by the other 17 witnesses.

[00:17:39] Speaker 00:
Absent that linkage, it is irrelevant.

[00:17:41] Speaker 00:
And I want to emphasize at the outset

[00:17:44] Speaker 00:
Defense counsel had many ways, either to get in evidence about Basler or to establish a connection between the two.

[00:17:51] Speaker 00:
Defense counsel themselves could have called Basler as a witness.

[00:17:55] Speaker 00:
They didn't.

[00:17:56] Speaker 00:
They also could have cross-examined the 17 witnesses

[00:18:00] Speaker 00:
about whether or not they had had any conversations with Baszler, whether or not Baszler had ever tried to recruit them into some conspiracy to fabricate allegations against Klein, or whether or not they had any discussions along those lines, any efforts of recruitment.

[00:18:18] Speaker 02:
So the only evidence that the defense had was this conversation between Basler with Beaver when she attempted to recruit Beaver, and Beaver would have testified.

[00:18:29] Speaker 02:
She tried, and I said no.

[00:18:31] Speaker 00:
That was the testimony that was excluded.

[00:18:32] Speaker 02:
And that was it.

[00:18:33] Speaker 02:
There was no other witness that they could point to who could say, I had a similar conversation with Basler or somebody else who was trying to organize a conspiracy here to frame Klein.

[00:18:46] Speaker 00:
On cross-examination, they did ask two adult victims.

[00:18:49] Speaker 00:
They asked two victims whether or not they'd had conversations with Baszler.

[00:18:54] Speaker 00:
That was adult victim number two and adult victim number 11.

[00:18:58] Speaker 00:
Both of them denied having any discussions with Baszler or talking about Baszler about fabricating allegations against Klein.

[00:19:07] Speaker 00:
Now for the other 15 witnesses, defense counsel could have asked them, hey, did you have similar conversations with Klein?

[00:19:13] Speaker 00:
Did she try to recruit you?

[00:19:15] Speaker 00:
That would, if they had said yes, that would have been evidence that defense counsel could have relied upon in their closing argument.

[00:19:21] Speaker 00:
That would have then provided a linkage that the district court could have relied on in admitting the testimony about Baszler's statements.

[00:19:31] Speaker 00:
But there was no linkage, the only two victims

[00:19:35] Speaker 00:
who were asked about it denied having any conversation along those lines, and absent some linkage, this testimony that was excluded is simply irrelevant.

[00:19:44] Speaker 00:
Even if it had some marginal value, evidentiary value, it was still properly excluded under Rule 403.

[00:19:51] Speaker 00:
It's not an abuse of discretion either way, because even if there's some probative value to one-on-one conversation between

[00:19:59] Speaker 00:
Basler and Basler, there still would have been undue prejudice to the government that would have substantially outweighed that minimal probative value, because it would have invited the jurors to potentially reach a verdict based on highly speculative evidence under this court's decision in Espinosa-Baza that's not an abuse of discretion.

[00:20:23] Speaker 00:
Turning to the second issue, unless the court has any further questions about that ruling by the district court.

[00:20:29] Speaker 00:
Oh, the one, I apologize.

[00:20:31] Speaker 00:
The one other thing I wanted to mention was admission or exclusion of Basler's statements to...

[00:20:39] Speaker 00:
Exclusion of Basler's statements to Beaver, that would have been harmless in any event.

[00:20:43] Speaker 00:
If the court reads over the actual testimony at the Rule 104 hearing, Basler is incredibly hard to understand.

[00:20:52] Speaker 00:
Every person, defense counsel, government counsel, even the district court itself, had a hard time pinning down Basler about what she was saying, what statement she was talking about, what conversation she was referring to, and who was speaking.

[00:21:05] Speaker 00:
It's highly unlikely that that would have moved the needle with the jury, especially when they heard substantial other evidence as to the truthfulness and veracity of the testifying witnesses.

[00:21:18] Speaker 00:
Additionally, if you look back at that hearing, both council, government council and defense council, were primarily concerned on whether or not AV-15 statements were going to come in, because AV-15 had made some comments to Basler.

[00:21:32] Speaker 00:
This is a separate conversation in the day room of the jail.

[00:21:35] Speaker 00:
And both counsel were highly focused on whether or not AV-15 statements were going to get in.

[00:21:40] Speaker 00:
The district court admitted it, and defense counsel even referenced AV-15 statements during her closing.

[00:21:47] Speaker 00:
But of course, that testimony, it makes sense why government counsel and defense counsel were focused on that testimony, because that AV-15 was a testifying witness.

[00:21:56] Speaker 00:
Statements by her saying she was going to fabricate allegations against Klein, that would have directly undercut her recounting the multiple times when she was forced by Klein to engage in oral sex.

[00:22:08] Speaker 00:
So those statements from AV-15 came in.

[00:22:11] Speaker 00:
It's unlikely that Baszler's statements would have moved the needle.

[00:22:14] Speaker 00:
And any linkage between Baszler and the other adult victims, that could have been inquired on cross-examination by defense counsel.

[00:22:22] Speaker 00:
So unless there are any questions on that issue, I'm happy to talk about the medical staff's testimony that was excluded on direct examination.

[00:22:31] Speaker 00:
This was whether or not they personally had witnessed Klein acting flirtatiously on any of the times when they were on duty with him.

[00:22:39] Speaker 00:
I just want to make this clear.

[00:22:40] Speaker 00:
That testimony, even though it was excluded on direct examination,

[00:22:44] Speaker 00:
it came in on cross-examination.

[00:22:47] Speaker 00:
There were four medical staff personnel that defense counsel was able to cross-examine, and those four medical staff personnel said that when they were on duty with them, they never witnessed any inappropriate conduct between Klein and the victims in this case.

[00:23:04] Speaker 00:
There were also two security staff members who testified on cross-examination that they didn't see any inappropriate conduct between Klein

[00:23:12] Speaker 00:
and any of the testifying victims.

[00:23:14] Speaker 00:
So your testimony uncrossed by six people, six government witnesses, and the idea that this one additional defense witness was not able to testify to basically the same thing on direct examination, that merely would have been cumulative.

[00:23:30] Speaker 00:
Again, it would have been harmless in any event.

[00:23:32] Speaker 00:
We do believe that it fails on its merits.

[00:23:34] Speaker 00:
There was no abusive discretion either under 404 in excluding this testimony, and I'm happy to draw this out.

[00:23:42] Speaker 00:
So there had been discussion, testimony by government witnesses, to the fact that they observed Klein acting flirtatiously at times with other victims, other people in the jail.

[00:23:57] Speaker 00:
The defense testimony they sought to elicit, there was no conflict between those two.

[00:24:02] Speaker 00:
And Klein basically admits that in the reply leaf.

[00:24:05] Speaker 00:
It's not on this particular date, government witness says, I saw Klein acting flirtatiously.

[00:24:11] Speaker 00:
No, someone else in the room says, I didn't see it.

[00:24:14] Speaker 00:
There's no conflict.

[00:24:16] Speaker 00:
So without any conflict, this is not impeachment evidence.

[00:24:19] Speaker 00:
The only argument then is,

[00:24:21] Speaker 00:
Klein must not, as a general matter, have acted flirtatiously because I, medical staff personnel, never saw him acting so.

[00:24:30] Speaker 00:
That is classic propensity evidence.

[00:24:33] Speaker 00:
And the basis on which someone could infer, reach that conclusion, hey, he must not have acted in this way, as Judge Tallman noted, that rationale is squarely foreclosed by this court's decision in

[00:24:48] Speaker 00:
I'm blanking.

[00:24:49] Speaker 00:
I apologize.

[00:24:50] Speaker 00:
Let me pull this up.

[00:24:51] Speaker 00:
It's Herzog.

[00:24:52] Speaker 00:
Sorry.

[00:24:53] Speaker 00:
Herzog holds that you cannot establish innocence by showing a lack of criminality in another circumstance.

[00:25:04] Speaker 00:
Under that same rationale, Klein cannot ask the jury to infer that he didn't act flirtatiously on this circumstance because I didn't see him act flirtatiously on a separate circumstance.

[00:25:15] Speaker 00:
Now, the basis on which the government's evidence was elicited, as Judge Tallman noted, was not propensity evidence.

[00:25:22] Speaker 00:
This was evidence as to willfulness, which is a count that the government bore the burden of proof on.

[00:25:27] Speaker 00:
This was evidence of his intent, evidence of his planning, testimony by a cumulative witness as to times when she personally didn't witness Klein acting flirtatiously.

[00:25:39] Speaker 00:
That would not have undercut the evidence of intent, of planning, of motive that the government witnesses described.

[00:25:45] Speaker 00:
I will say for both of these issues, there are constitutional arguments raised.

[00:25:55] Speaker 00:
I'm happy to talk about any of the constitutional arguments about his right to present a defense.

[00:26:00] Speaker 00:
The main one I wanted to mention is with regard to Baszler's testimony.

[00:26:06] Speaker 00:
That is clearly reviewed by this court under a plain error standard.

[00:26:10] Speaker 00:
It is not a de novo standard.

[00:26:12] Speaker 00:
In client's reply brief, they suggest that this was raised in the district court.

[00:26:18] Speaker 00:
It was exhausted and for that reason.

[00:26:21] Speaker 00:
There should be de novo review.

[00:26:22] Speaker 00:
But if you look at the citation, the specific district court document that they're citing, they don't discuss the constitutional right to present a defense.

[00:26:30] Speaker 00:
The constitutional right to present a defense requires application of the Miller factors.

[00:26:35] Speaker 00:
And that document that they cite as saying, we raised this below, that document doesn't even discuss or apply the Miller factors.

[00:26:42] Speaker 00:
There is no way the district court could have inferred that this was an argument that they were raising.

[00:26:47] Speaker 00:
And so plain error applies to that constitutional right to present a defense.

[00:26:51] Speaker 00:
Regardless whether or not plain error applies or de novo review applies, it fails.

[00:26:58] Speaker 00:
Klein ignores four of the five Miller factors.

[00:27:01] Speaker 00:
So under a plain error review or de novo review, that constitutional challenge fails.

[00:27:06] Speaker 00:
There is a constitutional right to presented offense argument made with regard to the medical staff personnel testimony that was excluded.

[00:27:15] Speaker 00:
That's not addressed at all in either the opening brief or the reply brief, so it's waived.

[00:27:19] Speaker 02:
What about the Davis issue that the defense raises with regard to any witnesses who may have been on probation or parole supervision?

[00:27:29] Speaker 00:
Yes.

[00:27:31] Speaker 00:
My friend on the other side presents this as support for the proposition that this evidence with regard to probationary status should be per se relevant.

[00:27:42] Speaker 00:
The theory is, because a person on probation could be vulnerable to pressure by the government, it's per se, it's de facto relevant.

[00:27:57] Speaker 00:
That does not hold water.

[00:27:59] Speaker 00:
If you look at Justice Stewart's concurrence, he says quite specifically, let me read the court what Justice Stewart says about the court's holding in Davis.

[00:28:09] Speaker 00:
He says, this court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions.

[00:28:25] Speaker 00:
So Justice Stewart's making clear

[00:28:27] Speaker 00:
that the opinion in Davis does not adopt a per se rule.

[00:28:31] Speaker 00:
That is the same reading that this court has adopted with regard to Davis that's in the Beardsley amended opinion, noting that there are specific reasons under the facts of that case why that government key witness

[00:28:44] Speaker 00:
his probationary status was relevant.

[00:28:45] Speaker 00:
There were fact-specific reasons for that.

[00:28:48] Speaker 00:
That's supported by this court's decision in Kamich, which is also discussed in our response to the 28-J letter, where this court suggested that evidence regarding probationary status could be relevant, where

[00:29:01] Speaker 00:
The witness's vulnerable status as a probationer is evidence of pro-prosecution bias.

[00:29:07] Speaker 00:
Here there's no suggestion why the witness's probationary status would render them particularly vulnerable to a pro-prosecution bias.

[00:29:16] Speaker 00:
To the contrary, as the district court explained in its ruling, here the risk of any bias was really remote.

[00:29:23] Speaker 00:
What you had was pending charges or probation status.

[00:29:29] Speaker 00:
in with law enforcement agencies or with courts and other jurisdictions and were not related to the case, either the prosecuting authorities here or anything with regard to the facts of this case.

[00:29:40] Speaker 02:
And I take it he did allow the defense to cross-examine to the extent that each witness was asked whether or not they had been promised any benefit or expected or had asked for any special favors in connection with their testimony in this case.

[00:29:56] Speaker 00:
that's correct your honor that was a line of questioning that the district court specifically permitted and uh... one other point uh... regarding that line of questioning that was permitted defense counsel didn't actually take the district court up on that offer they never once asked any of the witnesses whether or not they subjectively expected

[00:30:14] Speaker 00:
or hoped for a benefit as a result of testifying for the government.

[00:30:18] Speaker 00:
But the one other point I wanted to make is the district court made clear that it was taking a very broad view of what a benefit could be.

[00:30:27] Speaker 02:
So are you saying they never asked any of the witnesses, do you expect to receive a benefit?

[00:30:31] Speaker 02:
And the district court had ruled before that if the answer was yes, then it would permit additional inquiry into what it was that they were expecting to receive.

[00:30:41] Speaker 00:
That's correct, Your Honor.

[00:30:42] Speaker 00:
The district court said as a threshold matter for relevance, this is a question that you should ask if you want to get into these areas of cross-examination.

[00:30:51] Speaker 00:
And if the answer is yes, there's a graduated set of inquiries, then you can get into.

[00:30:56] Speaker 02:
And they never ask the foundational question?

[00:30:58] Speaker 00:
That's correct.

[00:30:59] Speaker 02:
OK.

[00:31:00] Speaker 00:
And as I mentioned, the district court, in terms of what would have qualified as a benefit, the district court understood that very broadly.

[00:31:08] Speaker 00:
If you look at ER 2623, the district court describes different benefits that would, under that situation in which a witness would have to answer yes.

[00:31:18] Speaker 00:
A benefit could be monetary.

[00:31:20] Speaker 00:
A benefit could be receipt of immunity.

[00:31:22] Speaker 00:
It could be not getting deported.

[00:31:25] Speaker 00:
It also could be, as was the case in Davis, avoiding suspicion.

[00:31:29] Speaker 00:
If any of the witnesses believed that as a result of testifying for the government, they might avoid suspicion for some other crime, as was the case in Davis, that would have qualified also.

[00:31:40] Speaker 00:
So it wasn't an abuse of discretion.

[00:31:41] Speaker 00:
Given the reasonable limits that were put on cross-examination, those limits are entirely consistent with this court's cases in Larson, in Shardian, and in Bryan.

[00:31:53] Speaker 00:
Those are all cited in our brief.

[00:31:55] Speaker 00:
All of those cases focus on the risk of bias by a government witness as a result of some benefit that they might obtain

[00:32:03] Speaker 00:
typically a sentence reduction.

[00:32:06] Speaker 00:
And so the district court's rulings, it's correct as a matter of de novo review, but it's certainly not an abuse of discretion.

[00:32:13] Speaker 00:
The only other issue, unless the court has any questions about any of that, the only other issue that's been raised on appeal is the denial of clients' multiple requests for a continuance.

[00:32:25] Speaker 00:
There are only three main points I'd like to raise with regard to this.

[00:32:29] Speaker 00:
First, I'd like to point out that

[00:32:31] Speaker 00:
There are five considerations, five factors, that this court needs to weigh in determining whether or not a denial of a continuance constitutes an abuse of discretion.

[00:32:41] Speaker 00:
And Klein doesn't argue that those five factors are satisfied with regard to any of the six denials of continuances that are raised on appeal.

[00:32:50] Speaker 00:
Klein kind of argues them en masse with regard to all of the denials of continuances.

[00:32:56] Speaker 00:
I think the inability to show that a particular ruling

[00:32:59] Speaker 02:
Any of those five factors are satisfied that really undercuts his ability to show an abuse of discretion and with regard to the Two-day pretrial request or the mid-trial requests involving the three to four hundred Documents I take it this was Jenks material that the government Disclosed to the defense prior to the witness testifying on direct examination

[00:33:24] Speaker 00:
It was mostly evidence that the government had learned as a result of witness prep sessions that had either taken place the night before or the day before.

[00:33:33] Speaker 00:
And when government counsel learned something new, they did provide those interview reports to defense counsel.

[00:33:38] Speaker 02:
Which was in advance of the witness actually testifying.

[00:33:41] Speaker 00:
Correct.

[00:33:44] Speaker 00:
I think the rulings that Klein focuses most specifically on are the second and third rulings.

[00:33:51] Speaker 00:
This was done in March 2023 and then May 2023.

[00:33:56] Speaker 00:
Klein characterizes these rulings as one, you brought this too early, and then the other one, you brought this too late.

[00:34:03] Speaker 00:
That's simply not supported by the district court's ruling.

[00:34:07] Speaker 00:
denies both of those continuous requests for the same reason, essentially, inconvenience and prejudice.

[00:34:14] Speaker 00:
It notes that in the second continuous request, there was significant inconvenience to the witnesses, and in the third request, there was still inconvenience to the witnesses, but also inconvenience to the court.

[00:34:27] Speaker 00:
It already sent out over 300 jury questionnaires.

[00:34:30] Speaker 00:
A hundred of them had been processed by court staff.

[00:34:33] Speaker 00:
So it was the same.

[00:34:34] Speaker 00:
The same basis, inconvenience.

[00:34:37] Speaker 00:
It wasn't too early, too late.

[00:34:39] Speaker 00:
With word of prejudice, it was the same basis.

[00:34:42] Speaker 00:
None of the areas of inquiry that defense counsel said they wanted to investigate were likely to provide evidence that was either relevant or admissible.

[00:34:50] Speaker 00:
So it's not a too early, too late situation.

[00:34:53] Speaker 00:
The final point on continuances I wanted to raise is Klein in his reply brief suggests that all he needs to show with regard to prejudice, which is the most important factor here, is that it's possibly or potentially or plausibly relevant to the jury's verdict.

[00:35:09] Speaker 00:
That is not consistent with this court's case law.

[00:35:12] Speaker 00:
If you look at the Meha case, which is actually the case Klein relies on, look at footnote 11.

[00:35:17] Speaker 00:
Footnote 11 specifically says, when we're talking about a continuance to obtain additional discovery, there the defendant must show actual and substantial prejudice, and that requires a different result by the jury.

[00:35:33] Speaker 00:
And here, there's no area of investigation, or client identifies no area of investigation where they would have obtained

[00:35:41] Speaker 00:
new evidence that would have led the jury to reach a different verdict on any of the convictions at issue here.

[00:35:52] Speaker 02:
So unless the court has any... That was where the district court basically described the request as a phishing expedition.

[00:36:01] Speaker 00:
I think all but putting it in that term, yes.

[00:36:03] Speaker 02:
He didn't use the term phishing.

[00:36:04] Speaker 02:
That's my term.

[00:36:05] Speaker 00:
I think so, Your Honor.

[00:36:07] Speaker 00:
But that is essentially how I believe the district court was viewing the continuous requests.

[00:36:12] Speaker 00:
And especially because Klein didn't say, I need a three-month continuance.

[00:36:16] Speaker 00:
I need a four-month continuance.

[00:36:18] Speaker 00:
The district court understood Klein to be asking for, quote, a substantial continuance in the absence of saying, you know, this is how long I need.

[00:36:27] Speaker 00:
These are the specific areas of inquiry.

[00:36:29] Speaker 00:
This is what I think I'm going to get.

[00:36:30] Speaker 00:
There was no abusive discretion in any of the denials of the request for a continuance.

[00:36:35] Speaker 03:
You want to wrap up?

[00:36:42] Speaker 00:
This court should affirm.

[00:36:43] Speaker 00:
Thank you.

[00:36:44] Speaker 03:
Very well.

[00:36:44] Speaker 03:
Thank you, counsel.

[00:36:49] Speaker 02:
Ms.

[00:36:49] Speaker 02:
Daly, could you address the cross-examination issue with regard to the fact that the court laid out the protocol you were to follow, but for some reason trial counsel didn't follow it, never invoked it?

[00:37:01] Speaker 01:
Yes, Your Honor.

[00:37:02] Speaker 01:
And I think that's correct as to the pending charges and supervision issue, but not correct as to the exclusion of cooperation.

[00:37:10] Speaker 01:
The exclusion of cooperation was broader, and the court said that that could not be brought in.

[00:37:15] Speaker 01:
We did an offer of proof as to the complainant, and the court concluded that none of what she said would allow cross-examination on that.

[00:37:24] Speaker 02:
This was a witness who was cooperating with the federal government.

[00:37:30] Speaker 02:
But a different agency.

[00:37:31] Speaker 01:
The DEA.

[00:37:32] Speaker 02:
The DEA on cases that were unrelated to Mr. Klein.

[00:37:36] Speaker 01:
Cases unrelated to Mr. Klein's.

[00:37:38] Speaker 02:
There was another one who was working with a local law enforcement agency.

[00:37:43] Speaker 01:
A local sheriff's office or something.

[00:37:44] Speaker 01:
Correct.

[00:37:45] Speaker 01:
And the one who provided an offer of proof specifically said that if she was deemed to have provided false testimony, then the benefits of her cooperation agreement would likely go away.

[00:37:54] Speaker 01:
And notably, this is a person who had provided a civil deposition and had received a civil payout.

[00:38:01] Speaker 01:
And so if she had been willing to testify at Mr. Klein's trial that those claims were false, she would have lost her cooperation agreement.

[00:38:09] Speaker 02:
But if the defense counsel never asked the foundational question, then why are we even?

[00:38:17] Speaker 01:
That's the point that I'm saying.

[00:38:19] Speaker 01:
As to AV1, we said, we want to make an offer of proof to get this cross-examination in.

[00:38:24] Speaker 01:
And the district court said, I've heard it.

[00:38:26] Speaker 01:
You may not.

[00:38:27] Speaker 01:
So that foundational question was not required.

[00:38:29] Speaker 01:
That issue was fully preserved.

[00:38:30] Speaker 02:
But we don't know what the witness would have said had the question been

[00:38:34] Speaker 01:
We do because we have the offer of proof.

[00:38:36] Speaker 01:
We have her full testimony.

[00:38:37] Speaker 01:
We know what she would have said.

[00:38:38] Speaker 02:
And what would she have said?

[00:38:40] Speaker 01:
She would have said that she explained the benefits she was getting, which was money and immunity from prosecution for significant drug charges, drug and gun charges, and she said that she would likely lose those benefits if she were deemed to have testified falsely.

[00:38:54] Speaker 02:
Okay, and these were benefits from charges that were pending against her somewhere else.

[00:39:01] Speaker 01:
I do not know where the charges were pending.

[00:39:03] Speaker 01:
I do not know where these acts occurred.

[00:39:07] Speaker 01:
She did not have any pending charges.

[00:39:09] Speaker 01:
She had avoided all charges for dealer quantity fentanyl guns that she had while cooperating.

[00:39:16] Speaker 01:
So she hadn't ever been held accountable for that conduct because of her cooperation.

[00:39:21] Speaker 01:
And instead, she was getting money.

[00:39:23] Speaker 01:
But the jury didn't know that she had that incentive to conform her testimony with the deposition that she had previously given.

[00:39:31] Speaker 01:
All right.

[00:39:33] Speaker 01:
I understand.

[00:39:34] Speaker 01:
Yeah.

[00:39:34] Speaker 01:
And so the pending charges, I don't think we have to ask the question the way the court told us to to preserve that issue.

[00:39:41] Speaker 01:
We told the court what we wanted to get in, and it was wrong when it excluded it.

[00:39:44] Speaker ?:
All right.

[00:39:45] Speaker 01:
It's also, I just wanted to say on that issue, we're not claiming per se that this type of information comes in.

[00:39:51] Speaker 01:
We're saying it came in in this case.

[00:39:53] Speaker 01:
These complainants were savvy.

[00:39:54] Speaker 01:
They understood that being a federal victim was likely to get them special privileges.

[00:40:00] Speaker 01:
And they asked for those special privileges.

[00:40:02] Speaker 01:
And so we're not making a leap of logic to say that having pending charges was something that would give them an incentive to curry favor with the federal government.

[00:40:13] Speaker 02:
Are you saying that the district court would not have allowed you to say, isn't it true that if you're determined to have testified falsely in this case, that this would impact your cooperation agreement in other jurisdictions?

[00:40:27] Speaker 01:
That was not allowed.

[00:40:29] Speaker 01:
Okay.

[00:40:29] Speaker 01:
In fact, there was a question about it, do you have any cooperation agreement, and that was objected to and sustained.

[00:40:35] Speaker 01:
On the demeanor testimony, the government said that this testimony came in and that what we proffered would have been cumulative.

[00:40:43] Speaker 01:
It did not come in.

[00:40:44] Speaker 01:
We were allowed cross-examination of several witnesses who agreed that they hadn't said anything.

[00:40:50] Speaker 01:
But that context was different.

[00:40:51] Speaker 01:
It was more narrow.

[00:40:53] Speaker 01:
It was limited by the scope of direct examination.

[00:40:56] Speaker 01:
And it was solely for impeachment.

[00:40:58] Speaker 01:
What we were precluded from bringing in

[00:41:00] Speaker 01:
was important because every staff witness who didn't see anything suspicious made our defense stronger.

[00:41:07] Speaker 01:
This is a close case.

[00:41:09] Speaker 01:
These complainants certainly had reasons to lie, and we weren't allowed to show that they were lying.

[00:41:15] Speaker 01:
I'm happy to keep going, but I see that I'm out of time.

[00:41:18] Speaker 03:
We only have one case today, so we're not out of time pressure.

[00:41:23] Speaker 03:
If there's some points you want to make, I'm not going to cut you off.

[00:41:27] Speaker 01:
I've never had an offer like that.

[00:41:30] Speaker 03:
Within reason counsel.

[00:41:32] Speaker 03:
But yes, this is an important case.

[00:41:35] Speaker 03:
I don't mean to cut you off.

[00:41:36] Speaker 01:
I mean, I think our first two issues, just this exclusion of defense evidence, is so important in a close case.

[00:41:42] Speaker 01:
And so a few of the points on the first issue I did want to touch on.

[00:41:47] Speaker 01:
There's no requirement in any case law that I can see where they say, you have to ask these people whether they lied in order for you to bring in circumstantial evidence that they lied from another witness.

[00:41:58] Speaker 01:
Again, not hearsay relevant because there's these inferences that you can reasonably draw.

[00:42:04] Speaker 01:
And I did just want to cite Vallejo here.

[00:42:06] Speaker 01:
The defense only has to show reasonable doubt.

[00:42:09] Speaker 01:
That's the level of inference that we're looking for.

[00:42:11] Speaker 01:
And the accused should be afforded every opportunity to create that doubt.

[00:42:16] Speaker 01:
We were not.

[00:42:17] Speaker 01:
The government's perception that this witness was not persuasive is not how this court should rule on that issue because that should have been for the jury.

[00:42:28] Speaker 01:
I can tell you the defense team found her very persuasive.

[00:42:32] Speaker 01:
There was also a struggle, a rush to find these witnesses because as the affidavit from defense investigator Stephen Wilson says, they hadn't found all of the witnesses that they wanted to interview yet.

[00:42:44] Speaker 01:
That's why they needed more time.

[00:42:45] Speaker 01:
They had only interviewed a third of the witnesses.

[00:42:48] Speaker 02:
We had 16 months from the time that the case was indicted, as I understand it, that

[00:42:54] Speaker 02:
The Oregon State Police had thoroughly investigated the charges and presented them to the Washington County District Attorney, who apparently declined prosecution.

[00:43:05] Speaker 01:
Correct.

[00:43:06] Speaker 02:
And you got the state investigative materials, so you'd known who the victims were for quite some time, had you not?

[00:43:13] Speaker 01:
We had received the initial batch of discovery in a usable format on June 29, 2022, so approximately 13 months.

[00:43:21] Speaker 02:
From the United States or from Washington County?

[00:43:23] Speaker 02:
From the United States.

[00:43:25] Speaker 01:
From the United States government.

[00:43:26] Speaker 01:
We never got all of the Washington County records that we were looking for.

[00:43:30] Speaker 02:
I thought you made a Public Records Disclosure Act request to the county.

[00:43:34] Speaker 01:
I don't know what we received in discovery about Washington County.

[00:43:40] Speaker 01:
I do know that there were public records requests to Washington County that were discussed in the motions to continue and the affidavits that were not responded to.

[00:43:48] Speaker 02:
I thought there was a representation in the briefing, maybe it was the government's brief, that you had the full investigative file from OSP.

[00:44:00] Speaker 01:
What I will say is that the government's response to the motion to continue conflated what the civil case attorneys had received with what there was a government offer of proof pre-indictment to the defense and then discovery.

[00:44:16] Speaker 01:
And so the defense began preparing this case when they received that discovery.

[00:44:21] Speaker 01:
And that discovery wasn't usable until June 29th, 2022.

[00:44:26] Speaker 01:
And if you read the affidavits, you can see how the defense developed from that date where they review the discovery and then they start sending out public records requests because they're starting to formulate their defense at that point.

[00:44:38] Speaker 01:
So there's between October and March, they're all, all of the records requests are listed in the affidavit of Ari Steinberg Lake.

[00:44:46] Speaker 01:
And so they had to review the discovery before knowing what their defense was, before knowing what records, and as records came in, they reviewed those and sent out more records and eventually subpoenas.

[00:44:57] Speaker 02:
Did you obtain any discovery regarding the related state civil litigation, some of which I understand had been settled prior to the federal criminal trial?

[00:45:08] Speaker 01:
I don't know the answer to that.

[00:45:13] Speaker 01:
I will be almost done.

[00:45:15] Speaker 01:
I think the only other thing that I wanted to say here is that this is a case about tipping points.

[00:45:20] Speaker 01:
There was a point where the government's strength in numbers claim persuaded the jury.

[00:45:26] Speaker 01:
We weren't allowed to develop our strength in numbers defense, and I think this case should be reversed.

[00:45:32] Speaker 03:
All right.

[00:45:33] Speaker 03:
Thank you, counsel.

[00:45:33] Speaker 03:
Thanks to both of you for your briefing and argument.

[00:45:36] Speaker 03:
Both excellent advocates, both excellent briefing in this important case.

[00:45:39] Speaker 03:
This matter is submitted, and we will return tomorrow.

[00:45:42] Speaker 03:
Thank you.

[00:45:44] Speaker 00:
All rise.