[00:00:00] Speaker 01:
We will now hear the last case for argument for the day, which is United States versus Dinklau et al.

[00:00:16] Speaker 03:
Good morning, Your Honors, and may it please the court.

[00:00:19] Speaker 03:
My name is Elizabeth Daly.

[00:00:20] Speaker 03:
I'm here on behalf of Appellant Chad Erickson.

[00:00:23] Speaker 01:
Before you start, I just want to do some housekeeping here.

[00:00:26] Speaker 01:
As I understand it,

[00:00:27] Speaker 01:
that you're going to go first for 15 minutes and Ms.

[00:00:32] Speaker 01:
Grazer is doing five minutes.

[00:00:34] Speaker 01:
Who's doing rebuttal, if anybody?

[00:00:36] Speaker 03:
That would be me, Your Honor.

[00:00:38] Speaker 01:
Okay, and how much of your 15-minute time are you going to try to save?

[00:00:45] Speaker 03:
I'm going to try to save five minutes, and I also understand that if Ms.

[00:00:48] Speaker 03:
Grazer doesn't use her full five minutes, then I can get a credit on my bank for that.

[00:00:52] Speaker 01:
Very good, and you're not in the same room, so there'll be no physical altercation, and we're grateful for that.

[00:00:58] Speaker 03:
We try to avoid that.

[00:01:00] Speaker 01:
Okay, all right, so please proceed then, Ms.

[00:01:02] Speaker 01:
Daley.

[00:01:04] Speaker 03:
Thank you, Your Honor.

[00:01:05] Speaker 03:
I'd like to start with the District Court's exclusion of expert testimony about Mr. Erickson's cognitive deficits, which effectively precluded the core defense theory of diminished capacity from reaching the jury.

[00:01:17] Speaker 03:
I believe the key question that this court needs to decide is relevance, and specifically the relevance of the significant and undisputed cognitive deficits Mr. Erickson experienced relating to awareness, attention, and processing.

[00:01:32] Speaker 03:
These, of course, stemmed at least in part from an IED explosion that he experienced while he was deployed in Iraq that resulted in traumatic brain injury.

[00:01:40] Speaker 01:
I want to make- Let me ask you this, Council, as I understand it,

[00:01:44] Speaker 01:
doesn't rule 704b expressly bar expert testimony from opining and I'm going to quote, whether the defendant did or did not have a mental state or condition, it constitutes an element of the crime charged or of a defense.

[00:02:00] Speaker 01:
Isn't that correct?

[00:02:01] Speaker 03:
Yes, Your Honor.

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

[00:02:03] Speaker 01:
Why does that not address the question that you've just raised?

[00:02:07] Speaker 03:
Because Your Honor, that rule only precludes the final conclusion, the ultimate conclusion of whether he actually acted with the mens rea applicable to the charges in this case, as opposed to predicate information that would have aided the jury in deciding that critical mens rea question.

[00:02:26] Speaker 03:
And that's what this court held in Morales and several other cases where they said that the information about how a person's brain works is not the same thing as telling the jury and therefore the person acted without intent.

[00:02:41] Speaker 03:
And so what we're asking for or what we asked for to be admitted at trial was the predicate information about how Mr. Erickson's brain worked.

[00:02:50] Speaker 03:
the jury could take in that information and it could find that based on that information, he didn't have knowledge about Huggins kidnapping.

[00:02:59] Speaker 03:
Therefore, when he went to the ARCO gas station and led the others to Dagwoods, he did not intend to facilitate the kidnapping.

[00:03:07] Speaker 01:
From your perspective then, Rule 704B does not address the time framework you're talking about.

[00:03:15] Speaker 01:
The expert can come on and testify whatever about his brain and the way it works.

[00:03:20] Speaker 01:
And yet later on, you can't do it?

[00:03:22] Speaker 01:
Is that the way it works?

[00:03:25] Speaker 03:
I'm not sure that it's a question of timing, but the specific opinion.

[00:03:30] Speaker 03:
And so another decision of this court that I think is helpful on this is United States versus wrong, where the disputed testimony was an expert who said that this defendant who was charged with counterfeit currency

[00:03:44] Speaker 03:
had some visual processing deficits where she sometimes had a tendency to overlook visual details.

[00:03:52] Speaker 03:
And so it supported the defense that she might not have known that this was a counterfeit currency.

[00:03:57] Speaker 03:
And the government raised the same argument that this is basically reaching the final conclusion.

[00:04:02] Speaker 03:
And the court said that that's not the case, that this is predicate information that would aid the jury's decision

[00:04:08] Speaker 03:
Because of course it could also say, well, she had these in ROM, she had processing deficits, but we think that under these circumstances, she knew that this was counterfeit currency and it's the same situation here.

[00:04:21] Speaker 01:
But you think of it as a predicate thing.

[00:04:23] Speaker 01:
It seems to me, you know, once the cat's out of the bag, once the testimony is there, what role does rule 704B play?

[00:04:32] Speaker 01:
You can't put the cat back in the bag.

[00:04:36] Speaker 03:
And Your Honor, I do want to point out that the government hasn't argued that this testimony would violate rule 704B.

[00:04:41] Speaker 03:
So that's not the disputed issue on appeal.

[00:04:44] Speaker 03:
But the reason it's not disputed is because the only thing that 704B precludes is the ultimate conclusion.

[00:04:51] Speaker 03:
The expert can't get on the stand and say, it is my opinion that this defendant on June 30th of 2015 acted without the intent to facilitate a kidnapping.

[00:05:03] Speaker 03:
And that is not the testimony that we offered.

[00:05:05] Speaker 02:
Just tell me what's wrong with the district courts or what's incorrect with the district courts finding that this evidence would have been so confusing to jurors, this neuroscience evidence that whatever value it might have had would have been outweighed by that risk of confusion.

[00:05:26] Speaker 02:
Two answers to that, Your Honor.

[00:05:28] Speaker 03:
I think the first answer is that the court was only looking at the relevance with respect to what happened after the parties reached the property, Dagwood's property, where Mr. Huggins was then, you know, bound, beaten.

[00:05:39] Speaker 03:
It was obvious that this was a kidnapping, a crime that was in.

[00:05:43] Speaker 03:
in the course of happening.

[00:05:45] Speaker 03:
And so Mr. Erickson's deficits would not have had significant relevance to those events.

[00:05:51] Speaker 03:
But what the district court never reached and never really considered is the government's alternative factual theory that Mr. Erickson was guilty before he reached Dagwoods because

[00:06:02] Speaker 03:
bits and pieces of information were coming into him.

[00:06:05] Speaker 03:
And the government argued, therefore, he must have understood that Huggins had been kidnapped.

[00:06:10] Speaker 04:
So let me ask you this.

[00:06:11] Speaker 04:
I don't know that the District Court's four or three analysis was that limited.

[00:06:15] Speaker 04:
I think the problem in this case is that the expert testimony that you proffered really were so general.

[00:06:22] Speaker 04:
It goes to general cognitive impairments.

[00:06:24] Speaker 04:
And the fact is that the record shows he was able, in different circumstances, to form intent

[00:06:31] Speaker 04:
And so that kind of generalized cognitive impairment evidence, I think that's what leads to the 403 balancing and the risk of confusion analysis.

[00:06:43] Speaker 04:
So how do you respond to the government's argument that this was just too generalized?

[00:06:49] Speaker 03:
Well, I think what the court overlooked was the significant relationship between the deficits that were not insanity defense for Form Act barred.

[00:06:58] Speaker 03:
So we had expert testimony that Mr. Erickson processes information slowly, does not accurately perceive other people's intentions, misses patterns that are apparent to others, and has trouble seeing the big picture.

[00:07:11] Speaker 03:
And then what we have with respect to the knowledge argument that the government presented is a very fast developing situation where Huggins had just been abducted.

[00:07:20] Speaker 03:
And we have no direct evidence that Mr. Erickson was ever told that that had happened.

[00:07:25] Speaker 03:
He certainly wasn't present.

[00:07:27] Speaker 03:
That was undisputed.

[00:07:28] Speaker 03:
And so the evidence was that he had some background information and that some phone calls were made to him.

[00:07:34] Speaker 03:
But the content of those phone calls was supposedly logistical.

[00:07:39] Speaker 03:
Fisher and Cribber now testified, we talked about meeting at the ARCO and going to Dagwoods.

[00:07:45] Speaker 03:
And so the jury was called upon to decide in this fast moving circumstance, did Mr. Erickson intuit, infer, deduce

[00:07:55] Speaker 03:
that this was because Huggins had been abducted, that he had been violently abducted and that he couldn't put it all together.

[00:08:02] Speaker 02:
Is that right?

[00:08:03] Speaker 02:
That he didn't have the ability to put all these pieces together.

[00:08:07] Speaker 03:
So somebody in those circumstances might have put all that together.

[00:08:11] Speaker 03:
And the jury could reasonably conclude that this is very suspicious.

[00:08:14] Speaker 03:
He's getting all these phone calls.

[00:08:16] Speaker 03:
He knows that they're looking for Huggins.

[00:08:18] Speaker 03:
He must have known what he was doing.

[00:08:20] Speaker 03:
But the expert testimony would have supported a reasonable jury in thinking that Mr. Erickson's brain did not reach those same deductions inferences.

[00:08:31] Speaker 03:
And that's not addressed in Judge Mosman's opinion.

[00:08:35] Speaker 03:
When he talks about Rule 403, he only talks about what happened in Dagwood Shed.

[00:08:40] Speaker 03:
And certainly, the cognitive deficits that we're talking about would have been less probative there.

[00:08:45] Speaker 03:
And so in weighing probative value versus prejudicial impact, the court's considering 95% irrelevant, maybe 5% relevant.

[00:08:56] Speaker 03:
And in that situation, it's very easy to find that the risk of prejudice and confusion, the jury is going to want to know.

[00:09:04] Speaker 01:
rather than just a general description.

[00:09:07] Speaker 01:
That's generally been what courts have found adequate.

[00:09:12] Speaker 01:
What's your best argument that the VICAR indictments should be treated differently?

[00:09:21] Speaker 03:
Well, I don't know that they should be treated differently.

[00:09:23] Speaker 03:
Our position is that the elements of the underlying predicate crime, in this case, the state murder or the federal kidnapping, are elements of the, I'm gonna call it vicar, the vicar counts.

[00:09:38] Speaker 03:
And this court held that in Elmore after we filed our opening brief, that the elements of the predicate crime are subsumed, and that's the standard for sufficiency of an indictment.

[00:09:47] Speaker 01:
But I think you're talking about a slightly different situation.

[00:09:52] Speaker 01:
We have not said that you have to delineate the elements of the underlying crime.

[00:09:57] Speaker 01:
Second Circuit, same way.

[00:09:58] Speaker 01:
I think you're saying we do have to say that.

[00:10:01] Speaker 01:
And I'm asking what your best argument is that the Vicar indictment has to delineate the underlying elements of the crime.

[00:10:13] Speaker 03:
Right, Your Honor.

[00:10:13] Speaker 03:
And the Second Circuit has distinguishable precedent.

[00:10:16] Speaker 03:
So what we're doing is we're adding two plus two and getting four because the court does have direct precedent that says all elements have to be alleged.

[00:10:24] Speaker 03:
And now we have direct precedent saying this is an element.

[00:10:27] Speaker 03:
And so I think the only logical conclusion from that is that the Vicar indictments have to allege all elements in which this court has held includes the elements of the predicate.

[00:10:37] Speaker 01:
So you think that two plus two is still four in these days?

[00:10:42] Speaker 03:
It's always doubtful, Your Honor, but I'm hoping that this panel sees that.

[00:10:45] Speaker 01:
You've used up the time you want to.

[00:10:48] Speaker 01:
Do you want to save the balance of your time for rebuttal?

[00:10:51] Speaker 03:
I do, and I appreciate that.

[00:10:52] Speaker 03:
Thank you.

[00:10:53] Speaker 01:
Very well.

[00:10:53] Speaker 01:
Okay.

[00:10:54] Speaker 01:
So Ms.

[00:10:56] Speaker 01:
Grazer, you're up.

[00:10:58] Speaker 00:
May I please the court, Laura Graser for Mark Dunclaw.

[00:11:02] Speaker 00:
I'm making myself available to the court for questions.

[00:11:06] Speaker 00:
I raised six issues.

[00:11:10] Speaker 00:
Four of them are joint issues, and I will leave those to Ms.

[00:11:13] Speaker 00:
Daley.

[00:11:14] Speaker 00:
If the court has questions about the two unique issues to Mr. Dunclaw,

[00:11:18] Speaker 00:
that the defense was impaired by not permitting basically a 3D view of Mr. Previno, who was, I think everyone agrees, a very sadistic individual who conceived of the torture plan and

[00:11:35] Speaker 00:
generated the fatal blow.

[00:11:37] Speaker 00:
He had a history of extreme violence and given that the defense was not allowed to attack his military record and show the 3D picture of that, the jury could have come off with a false impression that he was a

[00:11:50] Speaker 00:
did an excellent job in the military and everything was fine until he got involved with the gypsy jokers and then he became this violent sadist and that is a misleading view and I will rest on my brief for that unless the court has questions.

[00:12:07] Speaker 01:
Do either of my colleagues have questions on this point?

[00:12:11] Speaker 01:
No thank you.

[00:12:13] Speaker 01:
I think not so please proceed with your other points then.

[00:12:15] Speaker 00:
And the pattern jury instructions are other unique, unrelated to Mr. Erickson.

[00:12:21] Speaker 00:
The pattern jury instructions downplays the connection between the actions and the purpose to support the enterprise.

[00:12:28] Speaker 00:
I lay out the argument in my brief and in the reply brief.

[00:12:33] Speaker 00:
It's not simply simultaneous that you're a member of the enterprise and you commit violent acts.

[00:12:41] Speaker 00:
They have to be related directly, that you did it for the purpose of.

[00:12:45] Speaker 00:
That's what the statutory language is.

[00:12:49] Speaker 00:
And the jury instruction misled the jury on that.

[00:12:53] Speaker 00:
And if the court has any questions on that matter.

[00:12:56] Speaker 01:
Other questions on that one?

[00:12:58] Speaker 01:
I think not.

[00:12:59] Speaker 00:
I will then leave the, Ms.

[00:13:02] Speaker 00:
Daley has addressed the indictment issue and I will leave the rest of my time to her for her rebuttal.

[00:13:08] Speaker 01:
Very well.

[00:13:09] Speaker 01:
All right.

[00:13:09] Speaker 01:
Thank you very much.

[00:13:10] Speaker 01:
All right, then let's hear from the government.

[00:13:12] Speaker 01:
Ms.

[00:13:12] Speaker 01:
Jusay Rao, is that the correct way to say it?

[00:13:15] Speaker 05:
Yes, Your Honor.

[00:13:15] Speaker 01:
Please proceed.

[00:13:17] Speaker 05:
May it please the Court, Sangita Rao, on behalf of the United States.

[00:13:21] Speaker 05:
Turning to the expert issue first, the District Court did not abuse its wide discretion in excluding the expert evidence.

[00:13:28] Speaker 05:
I think the easiest path here is for the Court to resolve this issue under Rule 403 because that really encompasses all the considerations that were in play for the District Court.

[00:13:40] Speaker 05:
This evidence had low relevance.

[00:13:43] Speaker 05:
Watson testified, Dr. Watson testified, that Erickson could form intent in a lot of areas.

[00:13:50] Speaker 05:
And then much of his testimony was that Erickson had deficits in things like memory, processing, attention, impulse control, and overall executive functioning.

[00:14:00] Speaker 05:
But the district court acted within its discretion in believing those deficits had little relevance.

[00:14:05] Speaker 05:
Let's look at memory and attention.

[00:14:07] Speaker 05:
This isn't a fraud case about some little detail in a hundred page document from three years ago.

[00:14:13] Speaker 05:
Erickson knew the victim Huggins.

[00:14:15] Speaker 05:
He had beaten him up before in that 2014 kidnapping when Huggins stole money from the bar.

[00:14:22] Speaker 05:
He knew Denglau was on the hunt for Huggins in retaliation for that robbery where Denglau's girlfriend was tied up.

[00:14:30] Speaker 05:
Everyone knew.

[00:14:31] Speaker 05:
Everyone on the street.

[00:14:33] Speaker 05:
Gypsy jokers from out of town knew.

[00:14:36] Speaker 05:
Erickson actually told Fokertz on the day of the kidnapping why Erickson himself had taken a trip to Longview in a car, a vehicle suitable for kidnapping.

[00:14:48] Speaker 05:
And that was because he was looking for Huggins because of this robbery, because Denglau was looking for him.

[00:14:55] Speaker 05:
He could see and hear what was going on in the shed.

[00:14:58] Speaker 05:
His memory problems didn't prevent him from knowing what was going on.

[00:15:02] Speaker 04:
So much the memory issues and

[00:15:05] Speaker 04:
And for me, I don't think defense has a very good argument even on the capability to form specific intent given Dr. Jackson's testimony that he's capable of forming intent in other circumstances.

[00:15:18] Speaker 04:
I think what counsel is really saying is that, look, this guy is very slow to process and given

[00:15:23] Speaker 04:
the fast evolving situation, it is relevant to say that he didn't have the capacity, or at least it gives the defense the ability to argue that he didn't have the capacity to fully grasp the situation.

[00:15:37] Speaker 04:
And that affects the District Court's 4-3 analysis.

[00:15:41] Speaker 04:
How does the government respond to that?

[00:15:43] Speaker 05:
So, Your Honor, it's not actually a fast-moving situation.

[00:15:46] Speaker 05:
This situation had developed over months, since the initial robbery had happened about a month earlier.

[00:15:54] Speaker 05:
Everyone on the street knew what was going on, that they were looking.

[00:16:00] Speaker 05:
Everyone knew that the plan and intent had gotten worse because after Denglau found the property when they did the home invasion of the drug dealers.

[00:16:15] Speaker 05:
and he found some of his property and so he knew that Huggins, he definitely knew Huggins was involved.

[00:16:20] Speaker 05:
Everybody was looking for him.

[00:16:22] Speaker 05:
And then on the day of the kidnapping itself, it's not so fast moving then either.

[00:16:27] Speaker 05:
This torture went on for hours and hours and there was a continued kidnapping during that time.

[00:16:34] Speaker 05:
And these are not subtle intents, they're not subtle patterns.

[00:16:39] Speaker 05:
Erickson was a full-patched member of this gang.

[00:16:44] Speaker 05:
That takes a lot of effort to become a full-patched member.

[00:16:47] Speaker 05:
Of all those people who were there in the shed doing the torture, he was the third highest-ranking member.

[00:16:52] Speaker 05:
Dengla was the president, Fisher was the vice president, and then it was Erickson.

[00:16:57] Speaker 05:
Everybody else were associates, hangers-on, who were in the shed.

[00:17:03] Speaker 05:
He knew about what the violent gang ethos were, disrespect of any kind.

[00:17:12] Speaker 05:
You didn't make your bed well, you got beat up when you were a gypsy joker.

[00:17:16] Speaker 05:
There was plenty of testimony.

[00:17:17] Speaker 05:
There were more than 80 witnesses who testified at this trial for six weeks about this violent gang and how any kind of disrespect led to violent retaliation.

[00:17:26] Speaker 05:
There were multiple kidnappings that had happened before, including the Huckins.

[00:17:30] Speaker 05:
offenses that were much less egregious than this.

[00:17:34] Speaker 05:
So that type of evidence, just there's general memory, general attention, general executive decision-making problems.

[00:17:42] Speaker 05:
In these circumstances, it wasn't relevant enough.

[00:17:46] Speaker 05:
Now, is it relevant a little bit?

[00:17:48] Speaker 05:
Some of it?

[00:17:49] Speaker 05:
Sure.

[00:17:50] Speaker 05:
Absolutely.

[00:17:51] Speaker 05:
These things have tiny bits of relevance.

[00:17:54] Speaker 05:
But what the district court really found was that in a 403 analysis, well, not all of it had relevance.

[00:18:00] Speaker 05:
The memory didn't have relevance.

[00:18:02] Speaker 05:
All that stuff about impulse control, that wasn't relevant.

[00:18:05] Speaker 05:
That goes to exactly what Congress and the courts have said is not relevant.

[00:18:11] Speaker 05:
appropriate.

[00:18:11] Speaker 05:
That's not the kind of thing that actually detracts from intent.

[00:18:15] Speaker 05:
And for all the reasons I've said, all that impulse control is not relevant.

[00:18:22] Speaker 05:
So understanding others' intentions in a social setting, low awareness of surroundings.

[00:18:27] Speaker 05:
The district court said, yes, there is the minimal relevance, but there was this huge risk of misleading the jury.

[00:18:33] Speaker 05:
And that was so substantial that the district court, exercising its wide discretion, determined that it wasn't worth the risk.

[00:18:40] Speaker 05:
The defense arguments themselves prove the point.

[00:18:43] Speaker 05:
Look at Erickson's brief at page 47, where Erickson asserts that the expert would have proved that that X mark slash the Piperdell witnessed

[00:18:54] Speaker 05:
witnessed Erickson putting over the tattoo and the punch Fokert said that he saw Erickson give Huggins, that those were, quote, ill-considered and reactive acts born of panic in the midst of crisis, rather than a conscious objective.

[00:19:11] Speaker 05:
But that's exactly the kind of evidence and argument about impulsivity and lack of reflection, the defeating intent that's wrong, but has a huge risk of misleading a jury to excuse a defendant's conduct just for lack of reflection, lack of making a good choice.

[00:19:27] Speaker 05:
But that has nothing to do with culpable criminal intent, which is if I take that Oreo cookie, I took it, even though it wasn't a good decision.

[00:19:35] Speaker 05:
That's the risk of misleading the jury here.

[00:19:38] Speaker 05:
The district court also said that the jury would give the testimony undue weight.

[00:19:46] Speaker 05:
In attempting to understand the dense expert testimony, the jury could stretch that offer testimony far beyond the mens rea negation purpose for which it could be used.

[00:19:56] Speaker 05:
And it would give the testimony extra weight to compensate for the limited scope of its admissibility.

[00:20:02] Speaker 05:
I'd urge this court to look at the Supreme Court's decision in Clark that we cite in our brief.

[00:20:07] Speaker 05:
If you look at pages 775 to 776, these are the exact concerns that the Supreme Court was talking about.

[00:20:14] Speaker 05:
Battles of experts and too much attention given to these vague concepts of psychological intent that don't match up with criminal intent, and the jury would be confused.

[00:20:27] Speaker 04:
Also, can I ask you before your time runs out to address the vicar starch statute, we don't have any case law requiring elements for the predicate offenses, right?

[00:20:40] Speaker 04:
All the case law in the jury instruction context.

[00:20:44] Speaker 05:
Yes.

[00:20:45] Speaker 05:
So I think the way the court should approach this is to start with first principles.

[00:20:50] Speaker 05:
An indictment needs to be a plain, concise statement of the essential facts, just contain the elements of the charged crime in adequate detail so that a defendant is on notice and can plead double jeopardy.

[00:21:02] Speaker 05:
It should be read in its entirety according

[00:21:05] Speaker 05:
to common sense.

[00:21:07] Speaker 05:
This court has said that repeatedly.

[00:21:09] Speaker 05:
And also the intent element can be implied.

[00:21:12] Speaker 05:
And I point this court to the decision in Henry, where just the word assault in the indictment implied intent.

[00:21:20] Speaker 05:
Those are the background principles, and there's no notice concerns here.

[00:21:25] Speaker 05:
At the time the district court was ruling on this motion, the government had already filed proposed jury instructions, and you can find that cited in our brief, but it's at 11 Denklo's excerpts of record, starting at 2264 and going to 2293.

[00:21:41] Speaker 05:
And there, all the elements of Oregon intentional murder and felony murder and Washington premeditated murder, they're all set forth.

[00:21:49] Speaker 05:
So the defendants were well aware of what they were defending against.

[00:21:52] Speaker 05:
But to go to the more specific question, the vicar charge did not need to allege the elements of the underlying offense because a vicar charge is not a federalized version of a state crime.

[00:22:04] Speaker 05:
It's its own offense.

[00:22:05] Speaker 05:
Now, one of the elements is that the defendant committed a violent crime in violation of state law

[00:22:10] Speaker 05:
or federal statutory.

[00:22:12] Speaker 04:
It does map onto the statutory terms.

[00:22:15] Speaker 05:
Yes, and so it gives those statutory citations.

[00:22:23] Speaker 05:
Defense counsel mentioned United States versus Elmore.

[00:22:26] Speaker 05:
United States versus Elmore is on a completely different topic.

[00:22:29] Speaker 05:
It's on applying the categorical approach to the Vicar Statute.

[00:22:33] Speaker 05:
But I urge this course to look at Elmore.

[00:22:36] Speaker 05:
The indictment in Elmore is remarkably similar to this indictment.

[00:22:40] Speaker 05:
It says, it's not a sufficiency of the indictment case, but it says Elmore unlawfully and knowingly did murder the victims in violation of California Penal Code.

[00:22:51] Speaker 05:
And then it cites the penal code.

[00:22:52] Speaker 05:
And then this court in Elmore did not find any error about this allegation about the state law offense.

[00:22:59] Speaker 05:
And instead said that the documents confirm that Elmore was charged with vicar murderers defined by California law.

[00:23:06] Speaker 05:
I'm not saying that Elmore proves our point.

[00:23:08] Speaker 05:
I'm just saying that Elmore is not relevant.

[00:23:11] Speaker 05:
And if anything, it's the same kind of indictment.

[00:23:14] Speaker 05:
These kinds of indictments are generally used.

[00:23:16] Speaker 05:
The Second Circuit has held that these kinds of indictments are appropriate.

[00:23:21] Speaker 05:
And then this court, in analogous context, has a couple of different ways in which it shows the adequacy of the indictment here.

[00:23:29] Speaker 05:
In the money laundering context, that's Lazarenko, this court said, when bringing charges of money laundering, the government need not allege all the elements of the specified unlawful activity, i.e.

[00:23:40] Speaker 05:
the underlying offense, very similar to here.

[00:23:44] Speaker 05:
And in the CCE context, the Continuing Criminal Enterprise for Drug Organizations, this court has held that there's no legal requirement that those violations which make up the continuing series, that those need to be specifically listed in the indictment.

[00:24:00] Speaker 05:
So we know when there's this overarching crime in a number of ways, other courts and this court have said you don't need to allege all the specific elements.

[00:24:10] Speaker 05:
Here, the statutes,

[00:24:12] Speaker 05:
The underlying statutes themselves were alleged and that was sufficient.

[00:24:17] Speaker 05:
But if there needed to be some more notice, this indictment as a whole sufficiently alleged those underlying offenses.

[00:24:25] Speaker 05:
I would, for the murder charge, look to the death penalty findings.

[00:24:30] Speaker 05:
The grand jury made four specific findings of intentional conduct, including that the defendants intentionally killed the victim, intentionally inflicted serious bodily injury.

[00:24:39] Speaker 05:
And then there is even a reckless allegation too about intentionally engaging in violence that constitutes a reckless disregard for human life.

[00:24:49] Speaker 05:
Look at the facts section.

[00:24:50] Speaker 05:
It charged that some defendants assaulted that word of intentionality from Henry.

[00:24:55] Speaker 05:
They assaulted and kidnapped Huggins.

[00:24:58] Speaker 05:
They transported him to a meeting place, then assaulted and tortured him on Dengla's orders, resulting in his death.

[00:25:04] Speaker 05:
I'd also like to point this court to paragraph 89 of the superseding indictment, which we didn't discuss specifically in the brief.

[00:25:11] Speaker 05:
It's the notice of enhanced sentencing factors for the pound one RICO.

[00:25:16] Speaker 05:
And there again, the allegations are that the defendants killed Huggins in the course of kidnapping him with citations to those state statutes.

[00:25:25] Speaker 05:
And it has that extreme indifference murder language from the Washington statute that the defendants under circumstances manifesting extreme indifference to life caused Huggins' death.

[00:25:36] Speaker 05:
So there's all these clues in the indictment that the grand jury was actually given all the instructions that the defendants are claiming that there was no notice about.

[00:25:44] Speaker 05:
We can see that in this indictment.

[00:25:47] Speaker 05:
In this court's cases, you've indicated that you can look to the whole indictment.

[00:25:53] Speaker 05:
We cited those cases in our brief.

[00:25:54] Speaker 05:
They're Tolliver, Thomas, McDonald.

[00:25:57] Speaker 05:
It's happened before.

[00:25:58] Speaker 05:
It should happen again if this court needs to go there.

[00:26:02] Speaker 05:
I'm happy to address harmless error if this court has some questions on that.

[00:26:10] Speaker 05:
I guess I would, just going back to the first issue, like to address the 28-J letter that the defense counsel filed yesterday, maybe two days ago, where this is, I think, on the Erickson expert issue and in the 28-J letter,

[00:26:25] Speaker 05:
The defense counsel cited two remarks that the district court made at sentencing when the district court was considering whether to give a minor role adjustment to this defendant.

[00:26:37] Speaker 05:
And he said that the evidence about intent for kidnapping was low.

[00:26:43] Speaker 05:
And I just want, I think this court really needs to think about those remarks in the sentencing context in which they were made.

[00:26:49] Speaker 05:
about minor role, the judge was comparing Erickson to the other participants and thinking about the offenses in three parts.

[00:26:56] Speaker 05:
He called it an unholy triad, the kidnapping from the driveway, the torture and the murder.

[00:27:01] Speaker 05:
And he said, well, when you're involved in two out of the three, you're a little bit less culpable.

[00:27:07] Speaker 05:
So when he was thinking about kidnapping, he was thinking about literally the grabbing at the driveway, which there's no dispute, Erickson wasn't there.

[00:27:16] Speaker 05:
The judge even says that he wasn't talking about kidnapping in the technical legal sense.

[00:27:21] Speaker 05:
This is that one excerpts of record for Erickson, page 23.

[00:27:26] Speaker 05:
So he says he's not talking about that, which would include that continued restraint in the shed.

[00:27:31] Speaker 05:
And so he's really talking about, did Erickson grab him from the driveway?

[00:27:36] Speaker 05:
And the judge also said, and I don't mean that I have to make fine distinctions about awareness or anything like that when I'm making this decision.

[00:27:44] Speaker 05:
Again, he's in a very narrow sentence in context.

[00:27:47] Speaker 05:
He's just saying, I'm going to give this guy a minor role adjustment.

[00:27:51] Speaker 05:
He is not saying that if he had to make the decision this court could make, if it wanted to go to harmless error, that the evidence wasn't overwhelming in this case.

[00:28:01] Speaker 05:
It was overwhelming.

[00:28:03] Speaker 05:
We have six cooperators talking about what happened in that shed.

[00:28:08] Speaker 05:
That's extraordinary.

[00:28:09] Speaker 05:
We have four of those cooperators who all saw some kind of violence.

[00:28:13] Speaker 05:
That's extraordinary too.

[00:28:15] Speaker 05:
The little inconsistencies that the defendant tries to highlight are so minor, I think it actually improves the government's point more.

[00:28:27] Speaker 05:
I'm just going to discuss one of them.

[00:28:29] Speaker 05:
the stabbing of the leg.

[00:28:33] Speaker 05:
So Ned Grinelli says, I saw Erickson when he was cutting off the ties of Huggins, the zip ties, I saw him stab him in the thigh and he said whoops and laughed and made it seem like a joke.

[00:28:47] Speaker 05:
That's corroborated by a picture of the victim's body that has two stab marks in the thigh.

[00:28:54] Speaker 05:
One of the things that the defendant has said is that that's not, you shouldn't believe it, because even though Purmanau said, even though Negrenelli said that Erickson stabbed him in the thigh, he said upper thigh.

[00:29:08] Speaker 05:
We're talking about inches here, inches away, a few inches, like maybe it's the lower thigh, but it's the thigh.

[00:29:13] Speaker 05:
And so I think that's actually very consistent.

[00:29:19] Speaker 05:
It's corroborated by Rockefeller's testimony that he heard Erickson say that Erickson had stabbed the victim in the thigh.

[00:29:28] Speaker 05:
And it's,

[00:29:31] Speaker 05:
It's corroborated by one more thing that I'm not thinking of right now.

[00:29:40] Speaker 05:
But I think, again, that it's so small.

[00:29:44] Speaker 05:
Oh, right, so then the defendant says the Huggins still had zip ties on his body, and so that somehow makes this evidence not believable.

[00:29:52] Speaker 05:
But, of course, he was no longer attached to the chair.

[00:29:55] Speaker 05:
Some of those zip ties were cut off, and some weren't.

[00:29:58] Speaker 05:
So, again, tiny, tiny details.

[00:30:01] Speaker 05:
Actually, what you have is that the fact that the defendant, that the cooperators weren't just having a dovetail story, the minor differences, as it's explained by their different vantage points, they were in the shed, out of the shed, and it actually, I think, shows their credibility, that they were just testifying honestly about what they remembered from where they were and what they saw.

[00:30:24] Speaker 05:
Unless the court has any questions about the other issues, the government will rest on its brief.

[00:30:28] Speaker 01:
Let me ask my colleagues, either of you have additional questions?

[00:30:32] Speaker 05:
No, thank you.

[00:30:33] Speaker 01:
No, thank you.

[00:30:34] Speaker 01:
I think not.

[00:30:35] Speaker 01:
I think not.

[00:30:36] Speaker 01:
So Ms.

[00:30:37] Speaker 01:
Daley, you've got part of Ms.

[00:30:39] Speaker 01:
Grazer's time as well.

[00:30:41] Speaker 01:
I don't know how it totals up, but it looks like four, five, 20.

[00:30:45] Speaker 01:
Wait a minute, we got more.

[00:30:46] Speaker 01:
So you got a lot of time.

[00:30:50] Speaker 01:
You may or may not want to use it, but there you go.

[00:30:53] Speaker 03:
Well, we'll see what questions the court might have.

[00:30:56] Speaker 03:
I do want to start with, I think what the court just heard is the government's best case scenario, but that's not how we decide relevance.

[00:31:03] Speaker 03:
What we're looking at is, could the jury have

[00:31:07] Speaker 03:
reasonably found that the defendant's defense was supported?

[00:31:12] Speaker 03:
And did the expert testimony support that defense?

[00:31:15] Speaker 03:
And the answers to both questions are yes.

[00:31:19] Speaker 03:
The government says that there's 80 witnesses who all supported the overwhelming evidence.

[00:31:24] Speaker 03:
Well, 40 of those witnesses went to the RICO conspiracy of which Mr. Erickson was acquitted.

[00:31:31] Speaker 03:
We also have a jury that deliberated for four days, which is not necessarily consistent with a case where you have multiple eyewitnesses whose credibility is not in doubt.

[00:31:43] Speaker 03:
This is a case that was very closely contested.

[00:31:46] Speaker 03:
And it was closely contested specifically with respect to Mr. Erickson's mental state.

[00:31:51] Speaker 03:
The jury struggled with that.

[00:31:52] Speaker 03:
We know because it asked a jury question, I believe, on the third day of deliberations when it said,

[00:31:59] Speaker 03:
when do you have to decide to join a conspiracy?

[00:32:02] Speaker 03:
I'm paraphrasing.

[00:32:04] Speaker 03:
But they wanted to know if you can join a conspiracy impromptu or whether there has to be advanced planning.

[00:32:09] Speaker 03:
So we can infer, we can guess that they might have been considering Mr. Erickson's mental state because that question doesn't relate to any of the other defendants.

[00:32:19] Speaker 01:
I want to- Council, let me just ask you this.

[00:32:24] Speaker 01:
You're obviously an experienced lawyer.

[00:32:26] Speaker 01:
You're great at picking out these issues,

[00:32:30] Speaker 01:
The reality is human beings don't fit things closely together.

[00:32:34] Speaker 01:
We're not perfect.

[00:32:36] Speaker 01:
We have all these varieties.

[00:32:37] Speaker 01:
And I look at the huge number of people who, from various vantage points, testified about what happened here.

[00:32:47] Speaker 01:
And in a general sense, I would say the evidence was overwhelming.

[00:32:51] Speaker 01:
Now, were there individual little this, little bit of that?

[00:32:56] Speaker 01:
I get that.

[00:32:57] Speaker 01:
But how do you overcome that problem?

[00:32:59] Speaker 01:
I mean,

[00:33:00] Speaker 01:
This was a brutal, horrible, nasty thing based upon the nature of this gang.

[00:33:08] Speaker 01:
How do you get around the overwhelming evidence aspect of this?

[00:33:13] Speaker 03:
Well, Your Honor, it was a club, not a gang.

[00:33:18] Speaker 01:
I don't want to join this club, let me just say.

[00:33:21] Speaker 03:
No, certainly, and two co-defendants were acquitted of any RICO conspiracy here.

[00:33:26] Speaker 03:
What I would say is that that concern I think is relevant in some cases, but not here where we had two, you know, the government says six cooperators testified about what happened.

[00:33:36] Speaker 03:
Yes, two of them said Mr. Erickson didn't do anything, that he was merely present.

[00:33:43] Speaker 03:
Now the jury could say, well, I don't credit those witnesses.

[00:33:46] Speaker 03:
I credit, maybe they didn't see everything.

[00:33:48] Speaker 03:
Maybe they're trying to protect Erickson.

[00:33:51] Speaker 03:
The jury could have reached similar doubts about Priburnal, Negrenelli, and Ying.

[00:33:58] Speaker 03:
So these are not minor discrepancies.

[00:34:00] Speaker 03:
These are three witnesses said they saw something, but they each said they saw something different.

[00:34:06] Speaker 03:
None of them corroborated each other.

[00:34:08] Speaker 03:
Two witnesses corroborated each other that Mr. Erickson didn't do anything.

[00:34:13] Speaker 03:
The government said four witnesses saw something.

[00:34:17] Speaker 03:
That's incorrect.

[00:34:18] Speaker 03:
It was three.

[00:34:19] Speaker 03:
The fourth witnesses said he thought he heard somebody, maybe Erickson, say that he had stabbed Huggins in the leg.

[00:34:26] Speaker 03:
I can discuss the stabbing in the leg.

[00:34:28] Speaker 03:
I think there are serious reasons why the jury may have had reasonable doubt, which is all that's required here, reasonable doubt.

[00:34:35] Speaker 03:
But I think the record is adequately detailed in our

[00:34:39] Speaker 03:
brief and with the reasonable doubt standard being the only thing the jury has to find, it could have easily relied on the government's alternative theory.

[00:34:48] Speaker 03:
And I think that's why the government presented that alternative theory.

[00:34:51] Speaker 03:
They said, jury, even if you don't believe the three incentivized cooperators who tried to point the finger at Erickson, but couldn't agree on what he did, even so he was already guilty because he must have known what was happening to Huggins.

[00:35:08] Speaker 03:
Fisher said that Erickson did not know what was happening with Huggins.

[00:35:13] Speaker 03:
He was asked, was Mr. Erickson in on the plan for violence?

[00:35:17] Speaker 03:
No, he didn't know about it.

[00:35:19] Speaker 03:
So there's reasons to doubt that.

[00:35:21] Speaker 03:
I wanted to address briefly Judge Wynn's question about capacity, because that's where we think that the district court committed a legal error.

[00:35:29] Speaker 03:
And I think that the government's in agreement with us on appeal that evidence is relevant if it goes to

[00:35:37] Speaker 03:
A defendant who has capacity to form intent, but might not have under the circumstances here, might not have formed that intent here.

[00:35:46] Speaker 03:
And we think that's where we're at with respect to Mr. Erickson's knowledge.

[00:35:50] Speaker 03:
Did he take those phone calls and decide they're asking me to go to the ARCO?

[00:35:55] Speaker 03:
They're asking me to show them the way to Dagwoods?

[00:35:58] Speaker 03:
You know, I know that this has something to do with Huggins, even though no one mentioned Huggins, at least there's no testimony that Huggins was mentioned.

[00:36:06] Speaker 03:
Somebody else in Mr. Erickson's circumstances might have put that together.

[00:36:10] Speaker 03:
The jury could have reasonably found on these facts with expert testimony that Mr. Erickson did not.

[00:36:16] Speaker 03:
That includes, I mean, the government's arguments, everyone knew about Denglau's violent intentions, and we have expert testimony that Mr. Erickson, Denglau's violent intentions, we have expert testimony that Mr. Erickson does not accurately perceive other people's intentions that the jury never heard.

[00:36:35] Speaker 03:
With respect to whether this was going to be dense neuroscience that would be difficult for the jury to understand and use correctly, I want to point out that the

[00:36:46] Speaker 03:
court could have limited the testimony to what was easily understandable, including just allowing Dr. Watson to testify about the actual functional cognitive impairments, which is exactly what was deemed admissible in ROM, functional cognitive impairments, and limited the MRIs, the white matter abnormalities, the sort of denser, here's what we know about how the brain works.

[00:37:11] Speaker 03:
We could have just limited the testimony to

[00:37:14] Speaker 03:
What do we know functionally about how Mr. Erickson's brain works?

[00:37:18] Speaker 03:
Where the core defense is diminished capacity, our position is that the defense should have been given the opportunity to create reasonable doubt, particularly in a case where a defendant faces a mandatory life sentence that the district court said it would not have imposed had it had a choice.

[00:37:37] Speaker 03:
And I'm happy to answer any questions, but I otherwise ask the court to reverse, order a new trial, or alternatively to vacate the sentence.

[00:37:44] Speaker 03:
And I appreciate the court's time today.

[00:37:46] Speaker 01:
Very well.

[00:37:47] Speaker 01:
Are there other questions by my colleagues?

[00:37:49] Speaker 03:
No, thank you.

[00:37:50] Speaker 03:
Thank you.

[00:37:50] Speaker 01:
Thanks to all counsel on this case.

[00:37:52] Speaker 01:
We appreciate it.

[00:37:53] Speaker 01:
The case of United States versus Dinklau et al.

[00:37:56] Speaker 01:
is submitted, and the court stands adjourned for the week.

[00:38:03] Speaker 04:
This court now stands adjourned.

[00:38:06] Speaker 04:
Thank you.