[00:00:00] Speaker 04:
Good morning, Mr. Carr.

[00:00:01] Speaker 00:
Good morning, Your Honors.

[00:00:04] Speaker 00:
Your Honor, we have a... Should I begin?

[00:00:07] Speaker 04:
Of course.

[00:00:08] Speaker 00:
Your Honor, we have... Could you say your name for the record, please?

[00:00:11] Speaker 00:
My name is Jason Carr, from the law firm Mahatma and Tomczyk.

[00:00:15] Speaker 00:
I represent Mr. Larry McDaniel.

[00:00:18] Speaker 00:
Your Honor, this is a joint argument.

[00:00:20] Speaker 00:
I intend to argue for nine minutes, reserve one minute of my time for rebuttal.

[00:00:24] Speaker 00:
my co-counsel will have nine minutes and one minute for rebuttal, and I will watch my time carefully.

[00:00:28] Speaker 04:
So you're representing McDaniel?

[00:00:30] Speaker 00:
Yes, Larry McDaniel.

[00:00:32] Speaker 04:
All right.

[00:00:33] Speaker 00:
Your honors, it has been said sometimes that oral arguments can be dull, but this case is anything but dull.

[00:00:42] Speaker 00:
We have retinal scans.

[00:00:44] Speaker 00:
We have the remains of bodies.

[00:00:46] Speaker 00:
We have this vault that was used by shady characters, people who had

[00:00:51] Speaker 00:
In the best case scenario, we're trying to avoid having their assets garnished in civil proceedings, outright criminals.

[00:00:58] Speaker 00:
I mean, the testimony from the bankruptcy trustee is fascinating in this case when he talked about what this vault entailed.

[00:01:05] Speaker 00:
But there's three things in this case that I want to leave the courts with, three A's.

[00:01:10] Speaker 00:
So the first A is audio.

[00:01:12] Speaker 00:
The audio tape, the newly discovered evidence, the audio tape, it's important, it's crucial, the physical copy is before the court and I would encourage you to listen to it because it's powerful.

[00:01:24] Speaker 00:
And part of the issue, one of the major issues in this case is would Mr. McDaniel be entitled to a new trial based on this newly discovered evidence.

[00:01:32] Speaker 00:
Let me tell you, as a defense attorney with that audio tape, that's dynamite.

[00:01:37] Speaker 05:
Mr. Carr, I want you to mention the other two things, but with the audio, I'm a little skeptical of it.

[00:01:43] Speaker 05:
It's never been mentioned before by Mr. McDaniel.

[00:01:46] Speaker 05:
It shows up, I guess, in a garage.

[00:01:49] Speaker 05:
There's nothing authenticated that it's Mr. Shaken on the audio.

[00:01:53] Speaker 05:
I think the expert only testified to that it hadn't been tampered with, but there's no testimony that this is the owner on the audio.

[00:02:01] Speaker 05:
So why do you think it's such a blockbuster piece of evidence?

[00:02:05] Speaker 00:
Well, there's different issues, right?

[00:02:07] Speaker 05:
Unlike the letter I'll just say overall Some of my skepticism with this is how trustworthy is this new evidence as a whole?

[00:02:17] Speaker 05:
And and how much is it corroborated if we're looking at the district court's decision under an abusive discretion standard?

[00:02:23] Speaker 00:
Which gets to the authenticity which is the third a but your questions are excellent so the audio tape the problem with the audio tape is not in this ability and

[00:02:32] Speaker 00:
Because we know if I put, if I get a new trial, I put Mr. McDaniel on the stand.

[00:02:36] Speaker 00:
I don't know any way they can stop me from talking about this tape.

[00:02:39] Speaker 00:
I can use them to authenticate it.

[00:02:41] Speaker 00:
I can use them to talk about the tape.

[00:02:44] Speaker 00:
And the government can cross examine him on it.

[00:02:46] Speaker 00:
So this ability is not a problem with the tape.

[00:02:48] Speaker 00:
Authenticity.

[00:02:49] Speaker 00:
Well, the tape, first of all, is a newly discovered, which is embedded in your honor's question.

[00:02:56] Speaker 00:
Well, the tape was made.

[00:03:00] Speaker 00:
When Mr. McDaniel came to, when it came to his attention, the tape was important.

[00:03:04] Speaker 00:
He looked for it.

[00:03:05] Speaker 00:
He looked in his house every board.

[00:03:07] Speaker 00:
This is back in 2012.

[00:03:07] Speaker 03:
But he made the tape, right?

[00:03:09] Speaker 00:
He made the tape, yes.

[00:03:10] Speaker 03:
He knew it existed.

[00:03:11] Speaker 00:
He knew it existed.

[00:03:12] Speaker 00:
That's not an issue.

[00:03:13] Speaker 00:
So he, when the tape... But he didn't realize it was important?

[00:03:17] Speaker 00:
Not when he made it.

[00:03:19] Speaker 00:
No, not when he made it.

[00:03:21] Speaker 00:
When he first made it, he thought it was just like my employer's badgering me and harassing me and trying to make me work under inappropriate circumstances.

[00:03:28] Speaker 00:
It wasn't a criminal investigation at that stage.

[00:03:31] Speaker 00:
But it was the tape.

[00:03:33] Speaker 00:
So it was just a couple of weeks later.

[00:03:35] Speaker 00:
The robbery occurs at 24-7.

[00:03:38] Speaker 00:
Cops are involved.

[00:03:41] Speaker 00:
They talked to Mr. Reed Daniels.

[00:03:42] Speaker 00:
He's like, I've got to find this tape.

[00:03:44] Speaker 00:
And he looks.

[00:03:44] Speaker 00:
He's in the house.

[00:03:45] Speaker 00:
He can't find it.

[00:03:46] Speaker 00:
He asks his mother, who he's lived with his entire life.

[00:03:49] Speaker 00:
And she says, I threw it out.

[00:03:51] Speaker 00:
And he's devastated.

[00:03:52] Speaker 00:
Now, the first question that one of the court's questions is, and one thing the district court looked at is, he didn't tell the cops.

[00:03:57] Speaker 00:
Well, good.

[00:03:58] Speaker 00:
I'm glad he didn't tell the cops.

[00:03:59] Speaker 00:
He did exactly what every criminal defendant should do, which is not give the cops too much information.

[00:04:04] Speaker 00:
Did he tell other people about the tape?

[00:04:06] Speaker 00:
Well, yes, he did.

[00:04:07] Speaker 00:
I mean, he told his attorneys.

[00:04:08] Speaker 00:
He told a lot of other people about the tapes.

[00:04:10] Speaker 00:
He just didn't tell the cops.

[00:04:12] Speaker 00:
That's his constitutional right.

[00:04:14] Speaker 05:
He told the cops other things.

[00:04:16] Speaker 05:
There was that polygraph, right, which didn't come into the trial, but he did divulge other things to the cops.

[00:04:22] Speaker 05:
So why not that?

[00:04:24] Speaker 00:
Right, and there's no question that this was a custodial interrogation situation, but he did have some communication with the cops, but he did not tell them everything.

[00:04:35] Speaker 00:
And he did, in fact, it was in his mind important, as he says in his declaration, to find this tape,

[00:04:41] Speaker 00:
because to see what was actually on it.

[00:04:43] Speaker 00:
What did it actually record?

[00:04:44] Speaker 00:
Because when you look at the actual report about the tape, it's literally in the middle of audio.

[00:04:49] Speaker 00:
Like it was an audio tape that he pressed record on because the thing was sitting on his table, like one of those old tape recorders, little black box.

[00:04:57] Speaker 00:
And it recorded over the audio this conversation he had with Mr. Shaken.

[00:05:02] Speaker 00:
So is the tape authentic?

[00:05:06] Speaker 00:
Well, it was newly discovered.

[00:05:08] Speaker 00:
Well, one thing that the district court

[00:05:10] Speaker 00:
imply that he just found it in his garage.

[00:05:12] Speaker 00:
It's not exactly what happened.

[00:05:14] Speaker 00:
I mean, first of all, in 2012, he looks for it.

[00:05:16] Speaker 00:
He looks all over his house.

[00:05:18] Speaker 00:
His mother throws it, tells him, oh, I threw that out.

[00:05:20] Speaker 00:
It was my tape.

[00:05:21] Speaker 00:
I didn't know you needed it.

[00:05:23] Speaker 00:
Then his mother dies.

[00:05:25] Speaker 00:
And he's not been charged with the crime.

[00:05:27] Speaker 00:
His mother dies in 2015.

[00:05:29] Speaker 00:
He puts all her stuff in storage.

[00:05:31] Speaker 00:
And then he's not indicted in 2020.

[00:05:34] Speaker 00:
So in 2020, eventually after his trial, he's like, oh, I've got to liquidate.

[00:05:38] Speaker 00:
I've been convicted.

[00:05:39] Speaker 00:
He gets the stuff out of the storage and starts going through it, takes a bunch of DVD movies to the store, a store to sell them to make money.

[00:05:47] Speaker 00:
And my co-counsel, she actually has a surveillance tape where he finds the tape again for the first time in 2021.

[00:05:57] Speaker 00:
One of the legal questions that's embedded in your question here, and mostly the standard here is abuse of discretion, but there is a legal question here that's review de novo, and that is, can evidence be newly discovered if it's been lost?

[00:06:12] Speaker 00:
In other words, the government says in their briefs that this was possessed.

[00:06:16] Speaker 00:
That Mr. McDaniel possessed this tape even though he had no idea where it was.

[00:06:21] Speaker 00:
for a period of nine years.

[00:06:22] Speaker 05:
But even, let's set aside that it is newly discovered.

[00:06:27] Speaker 05:
Okay.

[00:06:28] Speaker 05:
How do you overcome the obstacle of how reliable is it when you don't have evidence that the owner is on the tape?

[00:06:37] Speaker 00:
Well, we do.

[00:06:38] Speaker 05:
I mean, you'd have, I guess, if Mr. McDaniel decided to testify, you could have his testimony, but how else?

[00:06:46] Speaker 05:
Why would it move the needle in order to overcome an abuse of discretion standard?

[00:06:50] Speaker 00:
But you're filtering down to the crux of this case.

[00:06:54] Speaker 00:
And the crux of this case regarding both the letter and the tape is, is it real?

[00:06:59] Speaker 00:
Is it real?

[00:07:00] Speaker 00:
Because if it's real, it's dynamite.

[00:07:03] Speaker 00:
It's powerful.

[00:07:04] Speaker 00:
So how do we know the tape is real?

[00:07:06] Speaker 00:
There are five known audio samples of Shaken included in the presentation to the district court and to the physical exhibit that was provided to this court.

[00:07:16] Speaker 00:
Known audio samples of Mr. Shaken.

[00:07:19] Speaker 00:
You can listen to his voice and compare it to the samples.

[00:07:22] Speaker 00:
He has a very distinct voice.

[00:07:25] Speaker 05:
But you had an expert, you had a handwriting expert for the letters, but there was no corresponding expert matching these audio recordings from Shaken to this audio.

[00:07:37] Speaker 00:
I agree with you to the extent that the expert for the letter was very welcome, 40 years of experience in law enforcement, very credentialed, very detailed report.

[00:07:46] Speaker 00:
The expert report regarding the letter is very high caliber, high quality.

[00:07:51] Speaker 00:
We do have an expert report for the audio, which you could say is not as detailed.

[00:07:56] Speaker 00:
But we do have an expert report.

[00:07:58] Speaker 00:
And here's the thing about this case.

[00:08:01] Speaker 00:
There's no allegation of misconduct in this case.

[00:08:05] Speaker 00:
But the government, if I was going to fault them for anything, it would be callousness.

[00:08:09] Speaker 00:
And why do I say that?

[00:08:11] Speaker 00:
Because there's two possibilities for this tape and this letter.

[00:08:15] Speaker 00:
One is that they're fabrications and they shouldn't be admitted because they aren't real.

[00:08:20] Speaker 00:
The second is that they're real and it strongly indicates that my client is innocent.

[00:08:25] Speaker 00:
Now why is the government not concerned with either of those possibilities?

[00:08:29] Speaker 00:
Because especially with this letter, they had every opportunity that we had to get an expert to look at it because we knew as a defense, even though I wasn't even on the case yet, we knew as a defense

[00:08:41] Speaker 00:
that the key issue here, is it real?

[00:08:44] Speaker 00:
And we did everything we possibly could.

[00:08:46] Speaker 00:
Ms.

[00:08:46] Speaker 00:
Rasmussen just really did an excellent job overturning every rock to try to prove this is real.

[00:08:54] Speaker 00:
We got an expert report.

[00:08:55] Speaker 00:
This is his writing.

[00:08:57] Speaker 00:
We have all these corroborating circumstances.

[00:08:59] Speaker 00:
The tape and the letter, they fit together like a glove.

[00:09:04] Speaker 00:
There's evidence in the letter that nobody could have known if they didn't know about the case.

[00:09:08] Speaker 00:
There's all these factors that support authenticity.

[00:09:11] Speaker 00:
The most important factors, of course, is that we have reports that say the tape is what it reports to be.

[00:09:17] Speaker 00:
And some of these are jury questions.

[00:09:20] Speaker 00:
And they said in their answering brief, we're going to attack this evidence if it comes in.

[00:09:26] Speaker 00:
You should, because some of these are definitely jury considerations.

[00:09:29] Speaker 00:
How much wait to give the deathbed confession?

[00:09:32] Speaker 00:
How much wait to give the tapes?

[00:09:34] Speaker 00:
But it's not a question of invisibility, because this evidence is authentic.

[00:09:39] Speaker 00:
It's potent.

[00:09:39] Speaker 00:
It's powerful.

[00:09:40] Speaker 00:
And it should be admitted, and all we're asking for is a new trial.

[00:09:44] Speaker 00:
The appearance of justice in this case demands that, because this conviction cannot be declared sound without this evidence being heard by a jury.

[00:09:53] Speaker 00:
I have 47 minutes left.

[00:09:55] Speaker 00:
I'd like to reserve that.

[00:09:56] Speaker 04:
Well, we only got to 1A, so.

[00:09:58] Speaker 04:
We only got to the audio tape.

[00:10:00] Speaker 04:
Could you just tell us what the other two A's were that you wanted to say?

[00:10:03] Speaker 00:
Yes, very.

[00:10:04] Speaker 04:
Just name them, just name them.

[00:10:06] Speaker 00:
Audio, admissibility, authenticity.

[00:10:09] Speaker 00:
Admissibility, does the evidence have to be admissible?

[00:10:13] Speaker 00:
We submit it doesn't.

[00:10:15] Speaker 00:
Authenticity, we submit there's a lot of evidence of authenticity and that's the key issue.

[00:10:21] Speaker 05:
I guess we got to them eventually.

[00:10:24] Speaker 00:
Thank you very much.

[00:10:25] Speaker 04:
OK.

[00:10:25] Speaker 04:
Thank you.

[00:10:26] Speaker 04:
We'll give you a minute for rebuttal.

[00:10:28] Speaker 04:
I appreciate that.

[00:10:28] Speaker 04:
Thank you.

[00:10:29] Speaker 04:
Good morning, Ms.

[00:10:31] Speaker 02:
Rasmussen.

[00:10:31] Speaker 02:
Good morning.

[00:10:32] Speaker 02:
Good to see you.

[00:10:33] Speaker 02:
May it please the court and my esteemed colleagues.

[00:10:36] Speaker 02:
I am Lisa Rasmussen, and I have the honor of representing Sylvia and Whitmore in this case.

[00:10:42] Speaker 02:
But it's an honor, but I have to confess to you, it's also kind of terrorizing to me because I

[00:10:51] Speaker 02:
It is not often that we represent a client where we so wholeheartedly believe that she's utterly innocent of these crimes.

[00:11:02] Speaker 02:
And it's not what I believe.

[00:11:04] Speaker 02:
I mean, let's talk about the facts.

[00:11:06] Speaker 02:
But this is really a very unique case.

[00:11:09] Speaker 02:
I've never seen anything like it in my 25 plus years of practice so First and I want to just kind of pick up on some of the things that that mr. Carr was talking about I think it's important to remember when we're talking about in particular the audio tape that these defendants were not charged until five years after the the robbery occurred that was April

[00:11:39] Speaker 02:
and they're indicted and it's sealed in 2017 and then they get arrested sometime in June and the reason for that is because my client, Ms.

[00:11:52] Speaker 02:
Whitmore, was a government witness in another case that resulted in a published opinion by this court and that case is lit went.

[00:12:02] Speaker 02:
And why is that relevant?

[00:12:03] Speaker 02:
Well, I think the government did not charge her until that other trial was finished.

[00:12:09] Speaker 02:
So I'm just pointing out there's a very long period of time before they know that they're being charged with a crime, any crime.

[00:12:18] Speaker 02:
So one of the things that I want to talk about is not only do you have on that physical exhibit that was transmitted,

[00:12:29] Speaker 02:
the known samples of Shaken, they're from court proceedings.

[00:12:33] Speaker 02:
They're from court proceedings, and you can tell from the context.

[00:12:36] Speaker 02:
And there are five or six excerpts of his voice.

[00:12:40] Speaker 02:
And when you listen to them, I don't believe that there's any doubt that that's his voice.

[00:12:45] Speaker 02:
It is the same as the audio tape.

[00:12:46] Speaker 02:
But I think to your question,

[00:12:49] Speaker 02:
Judge Sanchez that you're asking is, you know, if it was so important, why didn't he look for it and find it?

[00:12:54] Speaker 02:
He didn't believe it to exist.

[00:12:55] Speaker 02:
His mom had dementia.

[00:12:56] Speaker 02:
He believed that she had thrown it away.

[00:12:59] Speaker 02:
But let's talk about the letter.

[00:13:00] Speaker 04:
So are you saying he just stumbled across it?

[00:13:02] Speaker 02:
He did, yeah.

[00:13:03] Speaker 02:
They were cleaning out.

[00:13:05] Speaker 02:
She died in 2015.

[00:13:07] Speaker 02:
They put boxes in storage.

[00:13:09] Speaker 02:
After the jury trial, they were going through

[00:13:13] Speaker 02:
They cleared out the storage, and that's one of the exhibits that you have, the receipt from when they cleaned out the storage and cleared it out.

[00:13:23] Speaker 02:
It's an exhibit to the motion for new trial.

[00:13:26] Speaker 02:
And then they were going through the boxes and they found DVDs that they just decided they were going to take to Zia record.

[00:13:36] Speaker 02:
And that's why I went and got the video, because they kind of told me they found this audio tape.

[00:13:42] Speaker 02:
They didn't know what was on it.

[00:13:43] Speaker 02:
He didn't even have a means to play it.

[00:13:45] Speaker 02:
He had to order online.

[00:13:46] Speaker 05:
I guess, Mr. Aspen, let me ask you the same question.

[00:13:49] Speaker 05:
You were both emphasizing the audio tape, which is interesting to me.

[00:13:54] Speaker 05:
Why not have an expert put forward in the same way that you did with the handwriting expert to say,

[00:14:02] Speaker 05:
Based on my expert analysis, this is Shaken, this is Elliot Shaken on the audio.

[00:14:09] Speaker 02:
I think the short answer is I didn't think it necessary because when you listen to the known samples of Shaken's voice, it's so clearly him.

[00:14:17] Speaker 02:
He does have a unique voice.

[00:14:18] Speaker 02:
He's an elderly gentleman.

[00:14:19] Speaker 02:
He died in his late 80s.

[00:14:21] Speaker 02:
I mean, to me, it's so clearly him.

[00:14:24] Speaker 02:
I think that any juror would conclude that.

[00:14:26] Speaker 02:
And you don't have to trust me, certainly.

[00:14:28] Speaker 05:
But then why not apply the same logic to the handwriting?

[00:14:32] Speaker 05:
You leave it to the juror to decide.

[00:14:34] Speaker 02:
Perhaps inefficacy of my advocacy.

[00:14:38] Speaker 02:
Again, this case is terrifying to me, right?

[00:14:41] Speaker 02:
I'm trying to cover every base.

[00:14:46] Speaker 02:
They're going to wonder how he just found this.

[00:14:48] Speaker 02:
So I went to Zia Record and asked for the surveillance audio.

[00:14:51] Speaker 02:
I submitted the receipt.

[00:14:53] Speaker 02:
All of that's in the record.

[00:14:54] Speaker 02:
But to me, it's so clearly him.

[00:14:57] Speaker 02:
And I don't, and I think you're right, I don't... Let me, can I ask you this?

[00:14:59] Speaker 05:
Yes.

[00:15:00] Speaker 05:
You know, one of the standards for newly discovered evidence is that even if you got into trial, there would be a probability of acquittal.

[00:15:09] Speaker 05:
Why do you think that there's a probability of acquittal with, you know, with the evidence of the handwriting, you know, of the letter and potentially the audio as well?

[00:15:18] Speaker 02:
Yes.

[00:15:20] Speaker 05:
In view of, you know, these suspicious bank deposits at different times, you know, somewhat questionable explanations for them, and at least in Ms.

[00:15:33] Speaker 05:
Whitmore's case, you know, her admission of the prior robbery.

[00:15:36] Speaker 02:
Well, I disagree that it's an admission of a prior robbery, but I'll get to that.

[00:15:42] Speaker 02:
I think the letter

[00:15:45] Speaker 02:
is actually the most important thing because it's a complete confession from Elliot Shaken.

[00:15:50] Speaker 02:
He says he's writing it as he's dying.

[00:15:53] Speaker 02:
He also, not only does he explain that he and her base did both the rob, he calls them both robberies, but that's a common mistake.

[00:16:02] Speaker 02:
One is a robbery, one is a burglary.

[00:16:05] Speaker 02:
Not only does he say that he and Phil did both of those, he says the employees were not involved.

[00:16:10] Speaker 02:
it completely exculpates both of them.

[00:16:14] Speaker 02:
And then he even adds that Phil wants to call Crime Tip, or Crime Stoppers is what we call it in Nevada, and blame the employees, and he says they were not involved.

[00:16:25] Speaker 02:
And he says things in that letter that no one else making that letter up, like let's just say

[00:16:31] Speaker 02:
Okay, and Mr. Carr is right.

[00:16:33] Speaker 02:
If the letter is not real, then it's a forgery, right?

[00:16:37] Speaker 02:
But who else would write the derogatory comments about police, police are stupid, and FUCK the trustee Shapiro?

[00:16:48] Speaker 02:
And that's only shaken.

[00:16:52] Speaker 02:
Nobody making that letter up would add those comments.

[00:16:56] Speaker 02:
So you have this authenticity that's sort of built in.

[00:17:00] Speaker 02:
And I think that there's several factors that you can look at in the record that establish these things.

[00:17:09] Speaker 02:
There is a crime stopper tip that is made.

[00:17:12] Speaker 02:
There's the audio tape kind of supports the letter, right?

[00:17:16] Speaker 02:
And there's no victims from the 2412 burglary event.

[00:17:23] Speaker 02:
No one ever came forward and said they were missing anything.

[00:17:26] Speaker 02:
The trustee worked to reunite people with some of their box contents, but nobody ever came forward and said that they were missing anything, which supports what he says in the confession.

[00:17:36] Speaker 02:
He put the money in the L boxes.

[00:17:38] Speaker 02:
And this is what the trustee testified to, too.

[00:17:42] Speaker 02:
He came in.

[00:17:43] Speaker 02:
It was not friendly.

[00:17:44] Speaker 02:
He basically told him, what are you doing running your business?

[00:17:47] Speaker 02:
You filed bankruptcy, Chapter 7.

[00:17:50] Speaker 02:
You can't be here.

[00:17:51] Speaker 02:
And he kicked him out.

[00:17:53] Speaker 02:
And he literally walked out with his lunch.

[00:17:56] Speaker 02:
But he also shaken in the civil proceedings says, I didn't get what I wanted that day.

[00:18:02] Speaker 02:
He says that.

[00:18:03] Speaker 02:
And the confession letter supports that, where he

[00:18:07] Speaker 02:
And then the burglary happens right after that so it's clear to me That shaken would take money from abandoned boxes or where people hadn't paid the rent He would set it into a different place the L boxes and then that would become his at some point and then the trustee comes in kicks him out says what are you doing here you filed bankruptcy you're not supposed to be running your business and

[00:18:31] Speaker 02:
He's surprised by that and the trustee testified to that and then all of a sudden there's a burglary between January 31st 2014 and February 4th on the day the trustee comes back and No one is missing anything So it's this a band you said the lack of victims supports this its corroboration, but was there any evidence that the the money or whatever was found in those L boxes was reunited with anyone and

[00:19:00] Speaker 02:
So there's money missing because that's part of the burglary event in 2014.

[00:19:06] Speaker 02:
The trustee's testimony was that he was able to reunite some money with some people, and then the rest of it he turned over to the state of Nevada as abandoned property.

[00:19:15] Speaker 03:
Is there anything that shows that what was in the L boxes was matched with

[00:19:22] Speaker 03:
Individuals who had No, we don't know what was in the L boxes.

[00:19:27] Speaker 02:
I think this was shaken scheme I mean he testified it is three for 341 hearing under oath that he lost two million dollars over the Kind of I think 18 years fan that he had the business didn't make any money on the place anything that makes that inherently credible I To me it all authenticates itself

[00:19:49] Speaker 03:
I mean, if he lost money, but at the same time, he's stealing and setting aside this money, I'm not sure that that seems persu... He's making conflicting statements, unless he never took anything and was only going to take it at the very end.

[00:20:04] Speaker 02:
Well, I don't agree that he's making conflicting statements.

[00:20:08] Speaker 02:
I see I'm really close on my time, and I know I wanted to go back and answer... I hope I answered your question, Judge Zips.

[00:20:16] Speaker 02:
And I wanted to go back and talk about the fact that there was a prior robbery with my client.

[00:20:20] Speaker 02:
There was not.

[00:20:21] Speaker 02:
Her base came in, plopped money down.

[00:20:23] Speaker 02:
That was New Year's Eve, 09.

[00:20:26] Speaker 02:
She brought it back the next morning.

[00:20:27] Speaker 02:
That's all documented.

[00:20:29] Speaker 02:
It's all in the exhibits.

[00:20:31] Speaker 02:
to the motion for new trial.

[00:20:33] Speaker 05:
Can I ask you, I think we'll give you a little extra time if need be, but why would this declaration from Ms.

[00:20:41] Speaker 05:
Whitmore come out post trial when there's already been a challenge to the statements made to this special agent?

[00:20:52] Speaker 05:
In other words, the entire basis for the trial objection was

[00:20:58] Speaker 05:
that these are too dissimilar that it shouldn't come in.

[00:21:01] Speaker 05:
If in fact she never made these statements to the agent, why wouldn't it have come in earlier during trial?

[00:21:11] Speaker 02:
It's a good question.

[00:21:12] Speaker 02:
I didn't do the trial.

[00:21:13] Speaker 02:
I was retained after the conviction and right before the Toda-Raba letter, the confession letter of Shaken, hit the docket.

[00:21:23] Speaker 02:
And so I don't know

[00:21:25] Speaker 02:
what trial counsel's strategy was.

[00:21:28] Speaker 02:
I think that they just thought there's no evidence either of these people were involved in either the robbery or the burglary and that their clients would be acquitted.

[00:21:35] Speaker 02:
There isn't any evidence that they were involved in those.

[00:21:38] Speaker 02:
The government's theory was follow the money they made deposits.

[00:21:41] Speaker 02:
And I could go on and on about that.

[00:21:43] Speaker 02:
We live in Las Vegas.

[00:21:45] Speaker 02:
They have elderly parents who hoarded cash, part of it's cultural, part of it's religious.

[00:21:50] Speaker 02:
They're LDS.

[00:21:51] Speaker 02:
A lot of the people that put money in the vaults were

[00:21:55] Speaker 02:
Mormons from Utah, I mean I you know I could go on and on about that, but I'm out of time and And I've run out of good grace here before you and I'd appreciate maybe just a brief moment to say something at the end Yes, I'll give you a minute for rebuttal.

[00:22:10] Speaker 04:
We took your every we helped you to go over.

[00:22:12] Speaker 04:
Thank you so much Thank you.

[00:22:14] Speaker 04:
We'll hear from the government

[00:22:24] Speaker 01:
May it please the court.

[00:22:25] Speaker 01:
My name is Mina Chang and I represent the United States.

[00:22:29] Speaker 01:
As a Supreme Court and this court have repeatedly noted, defendants do not have a constitutional right to introduce any evidence that they believe to be relevant.

[00:22:38] Speaker 01:
And in this case, the district court, which has become very familiar with this case over the course of seven years, made correct evidentiary rulings.

[00:22:46] Speaker 01:
First, by properly determining that the evidence would be inadmissible and excludable when they were irrelevant or from sources that were unverified, unreliable, and unavailable.

[00:22:56] Speaker 01:
Second, when necessary, the district court properly limited the use of other admissible evidence such as 404b material and accordingly instructed the jury.

[00:23:05] Speaker 01:
It seems that the court is most interested on the allegedly newly discovered evidence, so I'll focus on that topic.

[00:23:11] Speaker 01:
While the defense has urged that this purported confession letter and the tape are unique once-in-a-lifetime circumstances, when you view this in light of the whole case, the confession letter and the tape are actually quite in character with the defendant's many, many other purported once-in-a-lifetime discoveries that have come up in this case.

[00:23:29] Speaker 01:
For example, the defendants find hundreds of thousands of dollars in pillows and mattresses not once, but twice.

[00:23:35] Speaker 01:
from deceased parents.

[00:23:37] Speaker 01:
A quarter of a million dollars is handed to Mitware for no reason and then she gives it back to an unnamed Mormon man.

[00:23:43] Speaker 01:
McDaniel's now deceased father sells a $390,000 violin in cash to a foreign Irishman.

[00:23:50] Speaker 01:
Whitmore receives $269,000 from her father nine years after his death.

[00:23:54] Speaker 01:
of which the executor of his estate has no idea about.

[00:23:57] Speaker 01:
And again, what is common about all these instances, including the purported confession letter in the tape, is that the declarants to all the serendipitously discovered evidence are unavailable, whether that by being deceased, unnamed, untraceable, or otherwise unidentified.

[00:24:12] Speaker 05:
Well, Ms.

[00:24:13] Speaker 05:
Cheng, let me ask you this.

[00:24:14] Speaker 05:
Did the district court make a mistake when it considered the handwriting analysis and only focused on one piece of writing when the experts report actually covered quite a few more things?

[00:24:26] Speaker 01:
No, Your Honor.

[00:24:26] Speaker 01:
So the district court expressed doubt about whether the methodology of this expert witness was proper, and that was fully within the discretion of the district court.

[00:24:35] Speaker 01:
What happened was there's a mischaracterization of evidence which the district court noted

[00:24:39] Speaker 01:
the expert, the handwriting expert, had used a document that was enclosed with this Toda-Raba letter and categorized that as known shaken sample when it really should have been unknown because it wasn't verified.

[00:24:52] Speaker 05:
But even if there was a reason to question that one, the expert also looked at many other writing samples that the court didn't address.

[00:25:00] Speaker 05:
So is there a problem there?

[00:25:02] Speaker 01:
I know because the district court in fact made multiple findings it was not only that this that the district court had skepticism about this expert witnesses conclusions but moreover the district court found questionable authenticity about where the corroborating evidence about where this letter came from and moreover

[00:25:20] Speaker 01:
The district court found that, aside from the fact that whether or not Shekin wrote this letter, there was a lack of corrupting circumstances regarding the reliability, the contents of the Shekin letter.

[00:25:31] Speaker 01:
And on top of that, the district court explicitly stated that its decision was not hinging on the admissibility of this newly discovered evidence.

[00:25:39] Speaker 01:
Because even if this evidence had been admitted at trial, there's so much overwhelming evidence against Whitmore and McDaniel that it wouldn't have made a difference.

[00:25:48] Speaker 05:
Why is it overwhelming?

[00:25:50] Speaker 05:
It seems to me as if there's scant evidence on both ends of things.

[00:25:55] Speaker 05:
There's not much evidence to corroborate the letter, but there's also not a great deal of evidence to corroborate the robbery itself, other than the deposits of banks, particularly for Mr. McDaniel, because Ms.

[00:26:09] Speaker 05:
Whitmore, there was also the statements coming in about prior thefts.

[00:26:15] Speaker 05:
What else made this?

[00:26:18] Speaker 05:
Why do you characterize it as overwhelming evidence in your view?

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

[00:26:22] Speaker 01:
Because the government's theory was not that McDaniel and Whitmore necessarily drilled into the faults.

[00:26:28] Speaker 01:
So if you actually see

[00:26:29] Speaker 01:
McDaniel's convictions, they relate to interstate transportation of stolen property.

[00:26:34] Speaker 01:
So even if McDaniel wasn't the one directly drilling into these vaults, what is key here is that he's moving large amounts of cash that are unexplained.

[00:26:43] Speaker 01:
He's providing unexplained or bizarre explanations for where he's finding this cash.

[00:26:49] Speaker 01:
So in that way, it's overwhelming evidence.

[00:26:51] Speaker 01:
He's making $25,000 per year at a maximum.

[00:26:55] Speaker 01:
And literally a day after the 2014 break-in, he then brings hundreds of thousand dollars of cash to a bank to deposit.

[00:27:02] Speaker 01:
So in that way, this is overwhelming evidence of McDaniel's guilt as it relates to his convictions.

[00:27:08] Speaker 05:
And so in your view, even if the letter comes in or even the audio, that would not be enough to think of this as probable acquittal.

[00:27:19] Speaker 01:
Yes, your honor.

[00:27:20] Speaker 01:
And the district court had wide discretion.

[00:27:22] Speaker 05:
An owner that's confessing to the thefts with one of the co-defendants and saying the employees have no role in it, that wouldn't move the needle?

[00:27:31] Speaker 01:
No, because it was so suspect.

[00:27:33] Speaker 01:
You have an unreliable letter, questionable authenticity.

[00:27:36] Speaker 01:
You also have the defendants providing bizarre explanations for where they came across the cash that they're depositing.

[00:27:43] Speaker 01:
So all in all, the district court exercised its wide discretion in determining that, in light of all this evidence, that the jury would have questioned this evidence.

[00:27:55] Speaker 01:
How does the watch play into that?

[00:28:01] Speaker 01:
So the watch is an incredibly specific item because it had a serial number, and that linked the watch to the defendants, including her base.

[00:28:10] Speaker 01:
Would Your Honor like me to discuss 404B or severance issues regarding the watch?

[00:28:16] Speaker 03:
The watch, as far as Judge Sanchez's issue about whether or not whether the note came in, if the note were to come in, whether it would be a different result?

[00:28:26] Speaker 01:
No, Your Honor, because in this case, the note and the letter show that Philip Herbace was a participant in this robbery.

[00:28:33] Speaker 01:
But again, there's nothing that this letter or this tape note specifically that Whitmore was not involved, that Whitmore didn't give Herbace this watch.

[00:28:47] Speaker 05:
I actually do want to ask you about severance, and I think the related claim is the inability to present a complete defense.

[00:28:55] Speaker 05:
And so both Ms.

[00:28:57] Speaker 05:
Whitmore and Mr. Herbys were moving to sever trials from each other, and then that motion was renewed.

[00:29:03] Speaker 05:
And I understand the government's position that that was waived, but let's assume it isn't waived for the moment that it was properly presented.

[00:29:10] Speaker 05:
Why wouldn't it be a problem?

[00:29:13] Speaker 05:
Does it not present a problem to have Mr. Herbace present his daughter as a witness to say this watch came from Ms.

[00:29:21] Speaker 05:
Whitmore and she can't rebut it by bringing in, I think it was Special Agent Wade, if memory serves?

[00:29:28] Speaker 05:
Why isn't there a problem with that?

[00:29:31] Speaker 01:
Your Honor, these defenses aren't so irreconcilable as to be mutually exclusive.

[00:29:36] Speaker 01:
So the magistrate judge noted in its order in denying severance that Whitmore and her base could deny culpability.

[00:29:43] Speaker 01:
They didn't have to be involved in the 2012 robberies to each explain the possession of this purportedly stolen property, specifically the watch.

[00:29:51] Speaker 01:
And additionally, there are cases, for example, Throckmorton, in which a co-defendant testified that he and another co-defendant had both traffic drugs, but he was acting as an informant as opposed to his co-defendant.

[00:30:02] Speaker 01:
And even that was insufficient to warrant severance, even though the defense squarely blamed the appealing co-defendant.

[00:30:08] Speaker 01:
And this is all because a core defense does not preclude acquittal of one person or the other.

[00:30:14] Speaker 05:
So I understand that, so then, even if there wasn't severance, is there a separate constitutional problem with not allowing this Whitmore to bring in a rebuttal witness on this issue that was, I guess, implicating Fourth Amendment rights for Mr. Herbese?

[00:30:29] Speaker 01:
No, Your Honor, because this was actually an ancillary point.

[00:30:32] Speaker 01:
The testimony of special agent Jarrett Wade was ancillary hearsay, and this was specifically to address an impeachment issue.

[00:30:43] Speaker 01:
to impeach the testimony.

[00:30:45] Speaker 01:
And so the district court actually walked through this issue pretty well.

[00:30:50] Speaker 01:
And so this is just one moment, your honor.

[00:30:57] Speaker 01:
essentially walking through that this was improper impeachment evidence.

[00:31:01] Speaker 01:
So specifically, Whitmore's counsel was attempting to call the special agent in order to impeach the recollection of somebody else.

[00:31:07] Speaker 01:
But again, this is just impeachment evidence.

[00:31:10] Speaker 01:
And Jarrett Wade's testimony would have been about unmerandized statements, and that would have been subject to the exclusionary rule.

[00:31:16] Speaker 01:
But all in all, to answer Your Honor's question, no, because Whitmore's counsel had the full opportunity to cross-examine Nicole Gaudioso about the origins of the watch, what type of watch it was, and Whitmore's counsel chose not to do that.

[00:31:28] Speaker 01:
She had full opportunity to examine what type of watch it was, and so in that way it was not a violation of her Sixth Amendment rights.

[00:31:36] Speaker 05:
And the testimony was just about a watch and not a particular watch?

[00:31:40] Speaker 01:
Yes, Your Honor.

[00:31:41] Speaker 01:
There was no testimony that was elicited regarding what type of watch it was

[00:31:44] Speaker 01:
Where that watch came from any description about the watch so it was about a watch and not the watch.

[00:31:50] Speaker 05:
What about the jurisdictional element?

[00:31:53] Speaker 05:
supporting, I think it's I guess the the Interstate commerce for for the Hobbs Act as I understand it the government is resting on the notion that The watch was sold in Georgia, but acquired in California does a Does the does the

[00:32:16] Speaker 05:
Is there any evidence that Whitmore was involved in the sale of the watch in Georgia?

[00:32:19] Speaker 05:
Is that needed in order to establish a jurisdictional element?

[00:32:23] Speaker 01:
No, Your Honor, and more specifically the government's basis for this is not that the watch was purchased in California, but that the watch was transported first from 24-7 where it was stored in the vault.

[00:32:34] Speaker 01:
then taken to California where Philip Herbace was, and then mailed back to Georgia to the consignment store that was located in Georgia.

[00:32:40] Speaker 01:
And in that way it affected interstate commerce.

[00:32:44] Speaker 01:
But back to Your Honor's original question, no.

[00:32:46] Speaker 01:
The Ninth Circuit model jury instructions make clear that it's not necessary for the government to prove that the defendant intended to or the defendant's conduct itself would affect commerce, but only that the natural consequences of that conduct affected commerce in some way.

[00:33:00] Speaker 01:
And in this case, there was a Hobbs Act robbery.

[00:33:02] Speaker 01:
There was jewelry that was stolen, and then it was foreseeable that this jewelry would then be transported across state lines to be fenced.

[00:33:11] Speaker 05:
So I understand that would apply for Mr. Herbace, since he has his fingers on the interstate qualities of it.

[00:33:20] Speaker 05:
Is it the fact that Ms.

[00:33:22] Speaker 05:
Whitmore was convicted of conspiracy that hooks her into that jurisdictional element, or no?

[00:33:26] Speaker 01:
Yes, your honor in terms of conspiracy she was involved in the Hobbs Act robbery and it was a foreseeable Conduct that jewelry or items stolen from the robbery would then be transported across steel vines.

[00:33:38] Speaker 05:
I see

[00:33:51] Speaker 05:
So at the end of the day, your view is with the newly discovered evidence, what do you think is the district court's strongest position, that it wouldn't have been admitted in a new trial or that even if it were admitted, it would not be a probable result in acquittal?

[00:34:09] Speaker 01:
Your honor, I think that fundamentally the district court expressed extreme skepticism about the reliability and the authenticity of this evidence.

[00:34:19] Speaker 01:
In addition, there was so much evidence that the district court reviewed about the trial itself.

[00:34:26] Speaker 01:
So I suppose in this case, while the government would advocate that both prongs are

[00:34:31] Speaker 01:
Equally important The government would say that this evidence is so unreliable and so untrustworthy that it would not have made a difference anyway a trial Unless your honors have any other further questions the government would submit here's not.

[00:34:47] Speaker 04:
Thank you counsel.

[00:34:48] Speaker 04:
Thank you your honor's rebuttal Let's have two minutes since the government seeded some time.

[00:34:55] Speaker 00:
Well.

[00:34:55] Speaker 00:
Thank you your honors and

[00:34:56] Speaker 00:
I wanted to address the weight of the evidence in this case.

[00:35:00] Speaker 00:
This case was about money.

[00:35:02] Speaker 00:
The government's opening said that the evidence against my client is follow the money.

[00:35:07] Speaker 00:
And is it true that the most damning evidence in this case are the timings of the deposits?

[00:35:15] Speaker 00:
So the audio tape, which I keep talking about the importance of,

[00:35:19] Speaker 00:
The importance of the audio tape is not just that it shows my client declining to engage in sin with Mr. Schenken and declining his invitation to join this conspiracy, but the reason for it.

[00:35:32] Speaker 00:
He says, I do not need to do this because I have plenty of money and plenty of gold.

[00:35:37] Speaker 00:
And he says this in 2010 before any of the incidents at 24-7 faults.

[00:35:42] Speaker 00:
The revised rule 804

[00:35:45] Speaker 00:
for prior, for statements against interest.

[00:35:50] Speaker 00:
The revised rule tells the courts unequivocally that you must look at all the evidence you can to see to get to the reliability, authenticity of the newly discovered evidence.

[00:36:00] Speaker 00:
So Judge Sanchez asked about why is there all this evidence that was supported.

[00:36:04] Speaker 00:
This could have been presented at trial.

[00:36:06] Speaker 00:
It's not only newly discovered.

[00:36:08] Speaker 00:
We do that because the rule says we have to do that to prove that the newly discovered evidence, the two pieces, is authentic

[00:36:15] Speaker 00:
and non-duvious.

[00:36:17] Speaker 00:
And what is one of those pieces of evidence that we presented?

[00:36:20] Speaker 00:
989, volume 5 of my excerpts of record.

[00:36:24] Speaker 00:
It's a private vault memorandum which showed that my client had $765,000 in cash and 60 gold coins in a box at that vault in 2006.

[00:36:36] Speaker 00:
So follow the money, the government says.

[00:36:39] Speaker 00:
Well, you follow the money, and it shows that my client had ample funds to make these deposits.

[00:36:45] Speaker 00:
the only real evidence against my client.

[00:36:47] Speaker 00:
Secondly, there was questions about the expert for the audio tape.

[00:36:54] Speaker 00:
I will note, and we didn't brief this.

[00:36:56] Speaker 00:
I'd be happy to do supplemental briefing on this.

[00:36:58] Speaker 00:
But in trials, say in bank robberies and such, laypeople commonly get on the stand and testify looking at surveillance videos.

[00:37:07] Speaker 00:
Yes, that's the defendant.

[00:37:08] Speaker 00:
This is the same kind of exercise we'd be asking the jury to listen to these tapes, listen to the known audio sample,

[00:37:14] Speaker 00:
you make the determination whether you think that's Elliott Schenken.

[00:37:17] Speaker 00:
So it's not, it's a common jury determination.

[00:37:21] Speaker 00:
And then admissibility, the last point I want to make, we believe this evidence is admissible under 804, it's admissible under 807, it's admissible under the somewhat unplowed land of constitutional overlay protection.

[00:37:36] Speaker 00:
But it doesn't need to be admissible because what this evidence, even if it's not admissible, it completely changes the trial because

[00:37:44] Speaker 00:
It retextualizes the government's evidence.

[00:37:47] Speaker 00:
It refutes the government's evidence.

[00:37:49] Speaker 00:
And it recharacterizes the government's evidence.

[00:37:51] Speaker 00:
So even if neither of these two pieces of evidence are admissible, it would completely change the trial.

[00:37:57] Speaker 00:
The tape is clearly admissible anyways.

[00:37:59] Speaker 00:
But I'm just saying, this evidence is so powerful, it doesn't need to be admissible because it would change the trial.

[00:38:03] Speaker 00:
And I'll just leave you with this, the Toda Rasa letter, the cover letter on excerpts of record 902.

[00:38:10] Speaker 00:
This is the letter that was sent to the court

[00:38:13] Speaker 00:
that contained Elliot Schenken's confession.

[00:38:15] Speaker 00:
This is the cover letter.

[00:38:17] Speaker 00:
And in it, the person talks about how they're doing this because they read about it on the news.

[00:38:21] Speaker 00:
They have this deathbed confession.

[00:38:23] Speaker 00:
They know what the truth is.

[00:38:25] Speaker 00:
They don't want to be involved.

[00:38:27] Speaker 00:
But they write the court and say, look at this letter.

[00:38:30] Speaker 00:
Make the story right, please.

[00:38:32] Speaker 00:
What happened here is wrong.

[00:38:34] Speaker 00:
Court, do the moral thing.

[00:38:36] Speaker 00:
All right.

[00:38:36] Speaker 04:
Thank you, counsel.

[00:38:38] Speaker 04:
Mr. S. Mutson.

[00:38:40] Speaker 02:
Thank you, your honor.

[00:38:43] Speaker 02:
Three things, the severance was renewed, but it really goes, and at trial, and I commented on this I think in both of my briefs, her base's lawyer became the prosecutor of my client, and that is an untenable situation.

[00:39:02] Speaker 02:
But now with the letter, the confession letter of Shaken, it changes that even more, right?

[00:39:09] Speaker 02:
The letter if you're attaching the letter to a severance motion and and her base is out of this because he waived his appeal for some reason and is now filing crazy things in the district court Accusing the district court judge of having of all nonsense But there is no doubt that had the court had the severance letter which granted the district court didn't

[00:39:32] Speaker 02:
or the confession letter, he would have had to grant severance, right?

[00:39:36] Speaker 02:
I mean, the letter so fundamentally changes everything.

[00:39:41] Speaker 02:
I don't concede that the letter is not admissible.

[00:39:44] Speaker 02:
In fact, I think that it is admissible.

[00:39:46] Speaker 02:
But even if for some reason it weren't, it changes the entire defense strategy of the case.

[00:39:51] Speaker 04:
But Counsel, don't we look at the severability issue at the time it was made?

[00:39:56] Speaker 02:
We do.

[00:39:56] Speaker 02:
And so it was renewed during trial because what was happening was she couldn't put on a defense.

[00:40:02] Speaker 02:
She couldn't talk about the fact that her base came and plopped $250,000 on 12-31-09 and that she brought it back on 1-1-10 the very next day.

[00:40:13] Speaker 02:
And that there was she couldn't talk.

[00:40:14] Speaker 04:
Why couldn't she talk about that?

[00:40:15] Speaker 02:
Because it was prejudicial to him.

[00:40:16] Speaker 04:
But that doesn't mean she can't.

[00:40:22] Speaker 04:
put it in.

[00:40:22] Speaker 04:
She can put it in if it's prejudicial to him.

[00:40:25] Speaker 04:
Just because they're co-defendants doesn't mean that she's precluded from putting in evidence that's prejudicial to the co-defendant.

[00:40:33] Speaker 02:
I think that Judge Gordon had ruled previously in the 404B litigation that that part of her

[00:40:40] Speaker 02:
polygraph and her discussion with Agent McKamey could not come in because it was prejudicial to her base.

[00:40:47] Speaker 02:
I think that was the district court's prior ruling.

[00:40:49] Speaker 02:
And then she couldn't talk about, they couldn't put the agent on.

[00:40:52] Speaker 04:
So was the district court reminded of that when the severability issue was renewed?

[00:40:58] Speaker 02:
Well, I have to go look at that part of the transcript, which is on day four.

[00:41:03] Speaker 02:
to see exactly what he said about it.

[00:41:05] Speaker 02:
But that's also where he was saying that they couldn't bring in the agent that they wanted to put on as the rebuttal witness.

[00:41:12] Speaker 02:
And that's the context of renewing the severance motion during trial.

[00:41:19] Speaker 02:
But it had nothing to do with the letter, though.

[00:41:21] Speaker 02:
That's the point.

[00:41:23] Speaker 03:
And where did Ms.

[00:41:25] Speaker 03:
Whitmore renew the request for severance?

[00:41:27] Speaker 02:
So it happens out of the presence of the jury conversation during trial, and I want to say it's day four of the trial transcript.

[00:41:38] Speaker 03:
So the defendant who did the renewal, or was it a different defendant?

[00:41:40] Speaker 02:
It may have been a different defendant, and I think that her lawyer joined.

[00:41:44] Speaker 05:
I think it was just that Mr. Herbace's lawyer renewed it and he used the word we.

[00:41:51] Speaker 05:
And so there is some ambiguity as to the renewal, but you know, but as to whether, but because there had been separately filed motions to sever beforehand, we can construe the we as being a renewal that involves all of them.

[00:42:09] Speaker 05:
I think that's my understanding of the arguments.

[00:42:12] Speaker 02:
You may be right, and I, because I didn't do the trial, I'm in a little, yeah.

[00:42:17] Speaker 02:
So the inability, I mean, the severance kind of goes, as we pointed out, to her inability to present a complete defense.

[00:42:25] Speaker 02:
But also, I just want to say, because I didn't really get to talk about it, this is our opportunity to really dive into the new advisory note, which was changed on 12-31-24, and to fill in that gray area on 804, on advisory note one,

[00:42:42] Speaker 02:
And that's exactly what the committee intended to fill in that gray area between Donnelly and admissibility by looking at the totality of the circumstances.

[00:42:51] Speaker 02:
And that's why I believe that, you know, the Sentencing Commission made the change to give courts that authority.

[00:42:59] Speaker 02:
And that is a substantial change.

[00:43:03] Speaker 02:
Donnelly has a lot less evidence than this of reliability.

[00:43:07] Speaker 02:
It's a spoken confession.

[00:43:09] Speaker 02:
from Joe Dick that he shot Chickasaw and then Joe Dick is dead.

[00:43:15] Speaker 02:
So, I mean, if you look at Donnelly compared to this, and I know it's a 1912 case and it goes on and on about waterways and Indian reservations,

[00:43:25] Speaker 02:
But it is fascinating because it's a lot less reliability and circumstantial evidence than we have here in this case.

[00:43:32] Speaker 02:
All right, counsel.

[00:43:33] Speaker 02:
Thank you.

[00:43:33] Speaker 04:
Thank you, counsel.

[00:43:34] Speaker 04:
Thank you to all counsel for your helpful arguments.

[00:43:37] Speaker 04:
The case just argued is submitted for a decision by the court.

[00:43:40] Speaker 04:
That completes our calendar for the morning.

[00:43:42] Speaker 04:
We are in recess until 9.30 AM tomorrow morning.