[00:00:12] Speaker 02: Good morning and may it please the court. [00:00:14] Speaker 02: Kate Morris of the Federal Public Defender's Office on behalf of Michael Jolly. [00:00:19] Speaker 02: I'd like to reserve three minutes of my time for a bottle and I'll keep an eye on the clock. [00:00:25] Speaker 02: I'd like to start by clarifying what happened below with respect to the three jail calls were challenging from September 13th, 23rd and 26th. [00:00:34] Speaker 02: Everyone agreed that those calls pertained at least in part to other acts. [00:00:40] Speaker 02: That's clear from the transcript of the pretrial motions hearing at pages 59 to 69 of the record. [00:00:46] Speaker 02: Everyone agreed that this was mixed evidence in the sense that even if those calls could be construed as admissions to the charged conduct, they also pertained to other acts. [00:00:58] Speaker 02: The problem was the District Court made a basic legal error regarding how mixed evidence is treated under Rule 404b. [00:01:06] Speaker 02: The District Court held that if evidence pertains in part to the charge conduct, it necessarily does not trigger Rule 404b. [00:01:14] Speaker 02: That was legal error, and this Court's review is de novo as the government agrees. [00:01:20] Speaker 02: Because of that error, the calls were admitted without the required 404B safeguards. [00:01:25] Speaker 02: There was no limiting instruction. [00:01:26] Speaker 02: And not only that, the government used the calls as propensity evidence at trial. [00:01:32] Speaker 02: That was prejudicial. [00:01:33] Speaker 02: It's the government's burden to prove harmlessness. [00:01:35] Speaker 02: And it cannot meet that burden because the calls were the centerpiece of its case. [00:01:40] Speaker 02: This court should reverse and remand for a new trial. [00:01:42] Speaker 03: So what is the part that you think is propensity evidence in these calls? [00:01:48] Speaker 02: So for the September 23rd and September 26th phone calls, it's the statements, I sell drugs to five people and I sell drugs to six people. [00:01:59] Speaker 02: For the September 13th phone call, it's the sentence where Jolly says, he's relaying a conversation with a police officer on another arrest and he says that he told the police officer, yes, I'm far from ahead. [00:02:12] Speaker 02: I'm never getting ahead with you guys fucking with me. [00:02:15] Speaker 03: Okay, so let's put aside the 13th one for a second because I think that one is harder to even understand but the two that are about I sell drugs Why isn't that a statement about the time period in question? [00:02:28] Speaker 03: That makes it more likely that he would have possessed drugs with the intent to distribute at the time on on the july arrest [00:02:37] Speaker 02: I think I would say it could conceivably be construed that way, but it would have to be admitted under 404B with a limiting instruction, and it couldn't be used as propensity evidence because he's saying, I sell drugs to five or six people. [00:02:56] Speaker 02: And the standard this court articulated in Parks was, if evidence directly relates to other crimes and a jury would likely infer from the statement that the defendant had committed other bad acts in the past, it's fair for them. [00:03:12] Speaker 00: Why would you say it directly relates to the other times? [00:03:17] Speaker 00: That is, there's nothing about the call itself that gives that [00:03:23] Speaker 00: other dates that is we know that he was arrested on several other occasions but how would a jury infer that it referred to something else when he's on trial for this this one particular date well if he had said I sell drugs in June or something or in May then I would understand that but I didn't know I wasn't give me the best argument as to why [00:03:53] Speaker 00: they would imply that it talked about something else. [00:03:56] Speaker 02: Well, I think when he says, I sell drugs to five or six people, that sounds like repeated conduct. [00:04:04] Speaker 02: It sounds like a pattern. [00:04:05] Speaker 02: I sell drugs. [00:04:06] Speaker 02: I am a drug dealer at this moment. [00:04:09] Speaker 02: And we know that he didn't know at the time of the phone calls which of his three arrests was going to be federally indicted. [00:04:16] Speaker 02: So we know he's not just talking about July 2. [00:04:19] Speaker 02: And in terms of what the jury hears, [00:04:24] Speaker 02: I think if they're hearing someone say I sold drugs to five people I sold drugs to six people it sounds like they're saying I'm a drug dealer and Even and and the problem also is that the government used it that way So even if something is admissible under 404 be you can't use it to argue propensity. [00:04:39] Speaker 04: Are you are you can are you conceding that? [00:04:43] Speaker 04: these statements referred at all to July 2nd, we do acknowledge that I [00:04:48] Speaker 04: that a jury could read into these statements something related to July 2nd? [00:04:52] Speaker 04: Or do you dispute that also? [00:04:53] Speaker 02: I acknowledge that the jury could. [00:04:55] Speaker 02: There's a world where a jury could interpret these as an admission. [00:04:59] Speaker 02: But the problem is that they also refer to other acts. [00:05:03] Speaker 02: And so they would have had to come in with a limiting instruction. [00:05:06] Speaker 02: And they cannot be used by the government as propensity evidence. [00:05:10] Speaker 04: In a case where there's some inference one can draw that relates to the crime charged, [00:05:16] Speaker 04: Some inference one can draw that relates to other acts what? [00:05:20] Speaker 04: What do you think the analysis should look like should we be looking at the statements in the context and saying? [00:05:25] Speaker 04: more likely than not a jury would read into this something that's propensity evidence or Is the fact of any propensity evidence in there something like a poison pill that then required the 404 instruction and [00:05:38] Speaker 02: I think the problem is if the jury can infer other bad acts, that's the 404b problem. [00:05:46] Speaker 02: That's what this court said in Parks. [00:05:50] Speaker 02: I would also add that the government has waived any argument that this was admissible for a non-propensity purpose under 404b. [00:06:01] Speaker 02: They've never identified a non-propensity purpose. [00:06:04] Speaker 02: below or on appeal. [00:06:06] Speaker 02: So that argument has been waived by them. [00:06:08] Speaker 02: And the problem here is that these statements were admitted as direct evidence but then used as 404b. [00:06:16] Speaker 02: So even if sitting here today we can come up with a non-propensity purpose like as a confession for these phone calls, that's not how they were used at trial. [00:06:25] Speaker 02: And so we can't take away the harm of that now with coming up with a post hoc ground for admissibility. [00:06:30] Speaker 03: Can I go back to though [00:06:32] Speaker 03: This crime, it seems like almost a premise of your argument is that on July 2nd, he was arrested for selling drugs. [00:06:41] Speaker 03: And so if he had been arrested for selling drugs to one person, saying five or six might mean there are additional ones. [00:06:47] Speaker 03: But he was actually charged with possession with intent to distribute. [00:06:52] Speaker 03: So I don't even really understand how saying I have five or six customers is not just direct evidence of that crime. [00:06:59] Speaker 02: Well, even if that's what the court thinks, it was used that way at trial. [00:07:04] Speaker 03: Well, how do you tell the difference? [00:07:06] Speaker 03: I mean, if it is direct evidence of the crime he's charged with, when they're making those statements, it's just evidence of the crime he's charged with. [00:07:14] Speaker 03: I'm sorry. [00:07:15] Speaker 03: I'm not sure I understand the question. [00:07:16] Speaker 03: So if you think a statement, I sell drugs to five people, is direct evidence of intent to distribute, then saying [00:07:27] Speaker 03: He is a drug dealer selling to five people is direct evidence of intent to distribute. [00:07:31] Speaker 03: I don't understand really where it departs. [00:07:34] Speaker 02: Well, that's not what they did at trial. [00:07:36] Speaker 02: So at trial, I mean, the district court thought they were violating rule 44B. [00:07:41] Speaker 03: Well, the district court seems to have been very confused, but I think you want us to have de novo review. [00:07:46] Speaker 03: So let's not worry about that and just figure out what the right answer is. [00:07:49] Speaker 03: Well, okay. [00:07:51] Speaker 02: The way these phone calls were used was as propensity evidence, even if they were direct evidence, even if this court thinks that they could be considered as admissions, they were used to argue propensity. [00:08:03] Speaker 02: I think that's clear from the government's opening statement. [00:08:06] Speaker 02: As I said, the district court thought they were using them. [00:08:10] Speaker 03: But sorry, in what way? [00:08:11] Speaker 03: What is the part again? [00:08:12] Speaker 03: Because I think when I asked you, you said, I have six customers. [00:08:17] Speaker 03: Well, let me pull up the opening statement. [00:08:21] Speaker 02: So this is page 804 of the record. [00:08:25] Speaker 02: They say, I sell drugs to six people. [00:08:27] Speaker 02: I'll admit to that. [00:08:28] Speaker 02: I'll admit to that all day. [00:08:29] Speaker 02: Those are the defendant's words you'll hear in this trial, not once. [00:08:32] Speaker 02: There are multiple calls in which defendant admits he's a drug dealer and that he had drugs to sell on July 2, 2020. [00:08:39] Speaker 02: So I think when you're calling someone a drug dealer, we don't. [00:08:41] Speaker 00: That latter part isn't really accurate at all, is it? [00:08:46] Speaker 00: At least from those calls that we're talking about, he, your client, doesn't say anything about having drugs on July 2nd. [00:08:54] Speaker 00: Now he does in the phone call of the 14th. [00:08:59] Speaker 00: So I might ask you about that because from a harmlessness point of view, it was uncontested. [00:09:05] Speaker 00: He was allowed to testify. [00:09:06] Speaker 00: I was allowed to bring in the statement from the phone call, if I have it correctly. [00:09:13] Speaker 00: They found me with a billion dollars worth of drugs in my backpack. [00:09:18] Speaker 02: That's the phone call from the 14th. [00:09:20] Speaker 00: That's right. [00:09:20] Speaker 00: And isn't that enough? [00:09:22] Speaker 00: almost by itself to make all of this harmless, but that's that kind of direct evidence. [00:09:27] Speaker 02: I don't think so, Your Honor, because we transmitted the audio of that phone call, this exhibit 123A, and he was being sarcastic in that phone call. [00:09:36] Speaker 02: He called it, he said it was bullshit, this news article that he's talking about, and to the extent the government thinks that that was an admission, it's their burden of proving harmlessness, and it's a high standard in the context of 404B. [00:09:50] Speaker 02: There's a presumption, [00:09:51] Speaker 02: of prejudice and the question is can this court say with certainty that the error did not influence the jury and affect the verdict and so to the extent that phone call could be construed as an admission they can't prove that because as we pointed out, as the defense pointed out to the jury, he's being sarcastic, he's calling that news article bullshit, he's saying that's not true, that's absurd so they can't say that the jury construed that phone call as an admission. [00:10:17] Speaker 02: The burden's on them and it's a high one. [00:10:23] Speaker 03: And why is it can you go back to why saying someone is a drug dealer with several clients isn't direct evidence of possession with intent to distribute. [00:10:33] Speaker 02: Well I think what I was saying was even if you think it is direct evidence. [00:10:37] Speaker 02: it was used to argue propensity at trial. [00:10:41] Speaker 02: And in the opening, I didn't get to this bit, but they call him a drug dealer several times. [00:10:48] Speaker 02: They call him a drug dealer who was caught in the act. [00:10:51] Speaker 02: And at page 807, they say on one phone call, he admits that he sells drugs to six people. [00:10:56] Speaker 02: On another, he's talking about what happened on July 2nd. [00:11:00] Speaker 02: So I think that's pretty clear that they're saying he's a drug dealer. [00:11:02] Speaker 02: We don't call someone a drug dealer who sells drugs one time. [00:11:06] Speaker 02: That's just not the phrase that we use. [00:11:09] Speaker 02: And we don't say someone's a drug dealer caught in the act when it's a one-off. [00:11:14] Speaker 02: So they're suggesting that this is a repeated pattern on his part. [00:11:18] Speaker 03: But I guess I just don't understand if having a repeated pattern of clients is direct evidence of possession with intent to distribute, then when you talk about someone having several clients, it seems like you're talking about something that is relevant. [00:11:35] Speaker 03: You want to have it jump to propensity but when they overlap so much I'm having trouble understanding how we know whether they're just talking about the direct evidence or the propensity. [00:11:43] Speaker 02: Well it's not just the number of clients it's the phrase I sell drugs that's the phrase they keep using at trial. [00:11:49] Speaker 02: I mean they use that many times and then they say he's admitted he's a drug dealer. [00:11:54] Speaker 02: So I think [00:11:57] Speaker 02: I think what they're clearly suggesting and what the district court thought they were suggesting was that the jury could infer that his guilt on July 2nd from the fact, from his status as a drug dealer and that's a 404B violation. [00:12:12] Speaker 03: But wouldn't it be evidence of intent to distribute? [00:12:17] Speaker 02: Well, it could be, but because a jury could infer other bad acts, it's also 404B and it would have to come in with a limiting instruction and notice and not be used for propensity evidence. [00:12:32] Speaker 03: And did you ask for a limiting instruction? [00:12:34] Speaker 02: Yes. [00:12:35] Speaker 02: Yes, that's at 129 is the limiting instruction that the defense proposed. [00:12:44] Speaker 02: And the court denied it at pages 989 to 991 of the record. [00:12:53] Speaker 02: Unless the court asks for the questions, I'd like to reserve the rest of my time for rebuttal. [00:13:03] Speaker 03: Guess the limiting instruction doesn't use the drug dealer though. [00:13:07] Speaker 03: That's what I was wondering You didn't ask for an instruction that says you can't call him a drug dealer, but I guess it maybe you're saying this is close enough. [00:13:13] Speaker 02: Yes Thank you [00:13:39] Speaker 01: Good morning and may it please the court. [00:13:40] Speaker 01: David P. on behalf of the United States. [00:13:43] Speaker 01: The jail calls in this case were admissible and not 404B propensity evidence because they related either to defendant's July 2nd conduct or to all three of defendant's drug arrests, including the one on July 2nd. [00:13:59] Speaker 01: There isn't serious dispute that the calls related at least in part to July 2nd. [00:14:03] Speaker 01: The party's key disagreement is what to do when the same piece of evidence [00:14:07] Speaker 01: may be both direct and potentially also other acts of evidence. [00:14:13] Speaker 01: The law on this circuit is clear, from US v. Lillard, which held that rule 404b is, quote, inapplicable, where the evidence the government seeks to introduce is directly related to the crime charged in the indictment. [00:14:27] Speaker 01: That's the world that we are in. [00:14:28] Speaker 01: Now, the defense has raised as their best case, US v. Parks, as a mixed [00:14:35] Speaker 01: propensity and direct evidence case, but that is not true in Parks. [00:14:40] Speaker 01: Parks related to a defendant who was charged with bank robbery related crimes. [00:14:45] Speaker 01: At trial there was testimony from a law enforcement officer connecting that defendant to a getaway car. [00:14:52] Speaker 01: That was permitted and that is direct evidence of the crime he was charged with, but that officer exceeded the scope of what he was permitted to testify about [00:15:02] Speaker 01: and said the reason for his surveillance was related to other robbery-related investigations. [00:15:08] Speaker 01: There are two distinct pieces of evidence, one that would have been permissible as direct evidence, and the other, which would be propensity evidence in parks. [00:15:17] Speaker 01: That's not the facts that we have here. [00:15:19] Speaker 01: The statements on the three jail calls were all related to the offense conduct itself. [00:15:26] Speaker 01: And it is not possible to separate those statements in a way [00:15:29] Speaker 01: that removes any kind of potential inference that they relate to other acts as well. [00:15:35] Speaker 04: Is it even clear what arrests these statements were referring to at all? [00:15:39] Speaker 01: It is, Your Honor, and this report made the ruling under 104A. [00:15:44] Speaker 01: It's by a preponderance of the evidence, and at the hearing where the parties discussed [00:15:49] Speaker 01: these jail calls, it is uncontested that at the time the defendant made these calls, he was in jail following a series of three arrests for drug-related conduct on July 2nd, August 9th, and August 28th. [00:16:04] Speaker 01: It is also uncontested by the parties that he expressed surprise on the calls to learn that at least one of those arrests would result in a federal prosecution. [00:16:14] Speaker 04: Right, but the other side says, well, at the time he didn't know which of the arrests [00:16:18] Speaker 04: Would lead to the federal was the subject of the prosecution which was announced later is that not relevant? [00:16:23] Speaker 01: Well the the government raised that because it is plausible that he may have had an inkling or knew that the July 2nd would be the federal charge But the point is that how would he have any inkling of that? [00:16:33] Speaker 01: I mean other than just it's one-third probability Well his his state defender told him that the something would be taken federally It was unclear from the record whether or not that state defender knew which of the charges or told him [00:16:47] Speaker 01: But the point is that all three. [00:16:50] Speaker 01: were potentially going to go federal. [00:16:52] Speaker 01: He knew one of the three would be federal, and he was complaining about that on the September 23rd and 26th calls. [00:16:59] Speaker 01: He's complaining about that, and it is clear he's complaining about any of them potentially going federal. [00:17:05] Speaker 01: He would not be happy if any of them did. [00:17:06] Speaker 01: He didn't say, you know, the August arrests, well, I'm surprised those would go federal, but I didn't even commit a crime on July 2nd. [00:17:14] Speaker 01: He's saying, if any of these go federal, why would they do that? [00:17:18] Speaker 01: I only sell to five or six people. [00:17:20] Speaker 01: So that's how we know he's referring at least in part to July 2nd on those calls. [00:17:25] Speaker 01: And with respect to the September 13th call, it is even more clear that he was aware which arrests he was talking about because he was relaying to the participant on the call. [00:17:35] Speaker 01: a conversation he had with the arresting officer on his August 28th arrest. [00:17:41] Speaker 01: There he says that the officer said, well, given the last three times we busted you, you must really be feeling the pinch because we've taken all your money and drugs. [00:17:50] Speaker 01: And the defendant says, yeah, I'm really having trouble making a profit here. [00:17:55] Speaker 04: I'm paraphrasing. [00:17:56] Speaker 04: We haven't got to the September 13th call. [00:17:59] Speaker 04: And it seems that the redactions, the point of them was to eliminate this other acts issue. [00:18:04] Speaker 04: In the course of doing that, it somewhat changed the reference point of the call itself. [00:18:09] Speaker 04: If you didn't know about the other acts, the jury would hear this and think he's referring to the time when he was arrested for what was ultimately charged, which is not correct. [00:18:19] Speaker 01: Well, it is correct in part because he is in part referring to July 2nd, because he's talking about three arrests, and July 2nd was one of them. [00:18:26] Speaker 04: Right, but I mean, the way this was presented to the jury, it was almost as though [00:18:30] Speaker 04: Of course, he was talking about a conversation with the officer who had arrested him on July 2nd, which is somewhat misleading because that's not what he was referring to. [00:18:38] Speaker 01: That's true. [00:18:39] Speaker 01: It actually happened to be the same officer, Pinedo, on July 2nd and August 28th, but I understand your point, Your Honor. [00:18:47] Speaker 01: The issue is that the court, in conversation with the defense, made these redactions to protect the defense from any kind of propensity suggestion or inference. [00:18:58] Speaker 01: the defense at the time was happy with that. [00:19:01] Speaker 01: They could have at any time introduced evidence at trial to show that the calls referred to other acts, if that's what they thought was preferable for their defense. [00:19:10] Speaker 01: And in fact, in their closing, that is exactly what they argued. [00:19:13] Speaker 01: They argued that the calls referred to other acts. [00:19:16] Speaker 01: So this redaction was not prejudicial to the defendant. [00:19:20] Speaker 01: The defendant thought it was in their best interest at the time. [00:19:24] Speaker 01: And they could have easily asked to leave it in. [00:19:26] Speaker 01: Leave the calls unredacted But I want to move to the best case in this circuit I talked about distinguishing parks, but here the cases that are most on point in terms of the facts and the reasoning are Dorsey and Neko Nekocha Varela and [00:19:45] Speaker 01: in Dorsey the defendant was charged with firing a gun to intimidate a grand jury witness. [00:19:52] Speaker 01: At his trial there were two witnesses who testified to seeing the defendant with a Glock-like gun in the months leading up to the alleged conduct. [00:20:04] Speaker 01: That testimony could have related to other acts. [00:20:07] Speaker 01: It could have been a different gun or one of them could have been a different gun and the other witness could have been referring to the very gun used in the alleged [00:20:15] Speaker 01: conduct. [00:20:17] Speaker 01: Or it could have just been the same gun. [00:20:19] Speaker 01: So we have a good case here of mixed evidence. [00:20:23] Speaker 01: And what the court held was that it rejected or declined to regard that evidence as 404b because it in part quote bore directly on the commission of the charged crimes end quote. [00:20:38] Speaker 01: So that is consistent [00:20:39] Speaker 01: with Lillard, which holds that once you are in the universe of something that is direct evidence, 404B does not apply. [00:20:46] Speaker 01: The same is true of Nacocha Varela. [00:20:49] Speaker 01: This is an unpublished case, but the facts and reasoning are instructive. [00:20:53] Speaker 01: That was a case related to alien smuggling. [00:20:55] Speaker 01: The defendant was 12 days after the alleged conduct. [00:21:01] Speaker 01: The defendant gave a statement. [00:21:04] Speaker 01: In the statement, he said 10 days prior, he had been arrested for alien smuggling. [00:21:09] Speaker 01: Again, that statement could have referred to other acts because the charge offense was 12 days prior. [00:21:16] Speaker 01: He's saying that he had smuggled 10 days prior. [00:21:19] Speaker 01: It could be other acts. [00:21:20] Speaker 01: He could have been confused, and it could have related to the charged offense as well. [00:21:26] Speaker 01: It's unclear. [00:21:26] Speaker 01: It's mixed evidence for 404B and direct potentially. [00:21:30] Speaker 04: So what would have happened here if instead the statement had just said, [00:21:36] Speaker 04: Sell drugs I Sell drugs I sold drugs to three people on July second or five people on July 2nd August 1st and August 5th So then what would we we would say well part of that is rule 404 be and we should redact that Well, I think that the issue first of all I should be considered admissible and [00:21:56] Speaker 01: general as a As a direct is direct evidence of the charge of offense with respect to the statements about other acts I think it's appropriate for the district court to discuss with the defendant what their preference is on that It is it is bad evidence for the defense. [00:22:13] Speaker 01: That's true. [00:22:14] Speaker 04: How could that not be I mean? [00:22:15] Speaker 04: I just was it would that not be other acts evidence to say I sold drugs to five people on July 5th or July 2nd August 2nd August 3rd [00:22:25] Speaker 01: Yes, it certainly would be other acts evidence, but the law is clear that when you have a mixed statement that relates to both direct and other acts it is on the 104 a analysis admissible now It may be prejudicial in some way, but you would say even in that situation. [00:22:42] Speaker 01: No propensity instruction would be required Oh, no, I wouldn't say that no propensity instructions acquired required if that statement about other acts makes it in to court and [00:22:53] Speaker 01: I think it's appropriate for there to be limiting instruction saying that the jury should not consider those other acts for propensity purposes. [00:23:01] Speaker 01: I think that would be appropriate. [00:23:02] Speaker 04: But why is the statement here not just shorthand for that, given what happened? [00:23:06] Speaker 01: Well, for several reasons, Your Honor. [00:23:08] Speaker 01: The Court did its best to limit any kind of prejudicial inference with respect to the statement [00:23:16] Speaker 01: I'd sell drugs to five people. [00:23:18] Speaker 01: There were redactions to try to conceal the other events that had happened. [00:23:24] Speaker 01: The government never argued propensity. [00:23:27] Speaker 01: The government never raised the fact that there were other drug deals or arrests. [00:23:32] Speaker 01: The government was called him a drug dealer throughout. [00:23:36] Speaker 01: Well, that's true, Your Honor, and if somebody sells drugs on one occasion, they are a drug dealer. [00:23:42] Speaker 01: And in Necoetia, this court was clear that using the term calling a defendant a dope dealer for a single count, that's appropriate. [00:23:52] Speaker 01: That is not a propensity argument because that is the charged offense. [00:23:57] Speaker 01: When you are charged with possession, with intent to distribute, you're charged for being a drug dealer. [00:24:02] Speaker 00: Well, but you're saying he admitted to being a drug dealer [00:24:06] Speaker 00: It wasn't just that you were referring to this charge. [00:24:08] Speaker 00: You're saying you heard from his own voice that he is admitted to being a drug dealer, right? [00:24:15] Speaker 00: That's true. [00:24:16] Speaker 00: Doesn't that sound like propensity evidence? [00:24:19] Speaker 01: Well, not when the charged crime is possession with intent to distribute, because that is what we're saying, that he's guilty of the crime. [00:24:27] Speaker 01: The crime is being a drug dealer, at least on one occasion. [00:24:30] Speaker 01: I do want to turn to that. [00:24:31] Speaker 00: I've read all of those, and they never [00:24:35] Speaker 00: limit the rhetoric to that occasion because you're saying you're going to hear from his own voice and he never uses the word July 2nd. [00:24:48] Speaker 01: That's true. [00:24:49] Speaker 01: That's true. [00:24:50] Speaker 01: Well, the government argued that the jury should make the inference that he's referring to July 2nd. [00:24:56] Speaker 01: But I think this is a good segue, Your Honor, into this point that the defense has made numerous times that the government relied heavily on the three contested calls. [00:25:06] Speaker 01: And I want to address that. [00:25:08] Speaker 01: This kind of goes to the harmlessness argument. [00:25:12] Speaker 01: The government's closing argument occupies 20 pages of transcript. [00:25:17] Speaker 01: Of that, [00:25:17] Speaker 01: Less than one page relates to all three calls cumulatively. [00:25:23] Speaker 01: That is less than 5% of the closing argument. [00:25:26] Speaker 01: The remaining 95% of the government's closing related to the highly inculpatory, highly persuasive evidence against the defendant. [00:25:38] Speaker 01: And I don't have time to go through all of it, but I think it bears noting at least a couple. [00:25:43] Speaker 01: So for example, the items that were in the backpack [00:25:47] Speaker 01: and on the defendant included cutting agent with a plastic piece with his fingerprint on it and a digital scale. [00:25:57] Speaker 01: The defendant had on him more than $400 of cash and weapons and all of this together. [00:26:05] Speaker 04: Shows that he had he was involved in drug distribution one of those things were Perhaps even without these calls this the jury would have reached the results But the harmless argument is a tough one when you look at the opening and closing I mean the opening begins I sell drugs to six people all admit to that I'll admit to that all day Those are defendants own words. [00:26:26] Speaker 04: You'll hear in this trial not once there are multiple calls. [00:26:29] Speaker 04: I mean this is the [00:26:30] Speaker 04: framing of the case around the calls. [00:26:33] Speaker 01: It's a catchy line, Your Honor. [00:26:34] Speaker 01: But as I said, the amount of time the government spent on those calls is minimal, less than 5% of the closing. [00:26:40] Speaker 01: And in the rebuttal, the government spent twice as much time on the uncontested September 14th call than it did on all three of the contested calls together. [00:26:49] Speaker 04: Yeah, but I mean, this is a case that went to a mistrial first, right? [00:26:52] Speaker 04: So there were a couple of things that changed from the first trial to the second, and a big one were these calls. [00:26:58] Speaker 01: Well, I would say that the biggest change between the two trials, Your Honor, is that the defense had to change their strategy and the theory of their defense because of new evidence, uncontested new evidence at the new trial. [00:27:12] Speaker 01: In the first trial, the defendant argued that Wade Batchelor switched bags with him. [00:27:17] Speaker 01: That was no longer possible because of the September 14th uncontested call where he described the backpack with the drugs in it as my backpack. [00:27:26] Speaker 01: It is also [00:27:27] Speaker 01: Implausible because I don't think he's ever disputed that it was his backpack right he didn't say it was his drugs He did in the first trial your honor he disputed that the argument was it's not my backpack in the first trial They were forced to abandon that argument because of the September 14th call and the fact that his fingerprint was in Something in the backpack, so he changed just in the backpack wasn't it in was it in the? [00:27:50] Speaker 00: The pouch in the backpack it was not it was separate from the pouch so the theory of the defense phone calls Existed they had happened before the first trial was there any reason you didn't introduce them at the first trial yes, your honor the basically the reason is because the the trial prep we didn't know we were going to trial until very close in time and [00:28:10] Speaker 01: And the jail calls at that time had not been obtained by the government, even though they were at the jail. [00:28:15] Speaker 01: They did exist, but the government didn't have them. [00:28:16] Speaker 03: Can I ask you a slightly different question? [00:28:18] Speaker 03: At ER 16, the district court says something that makes me think that the district court kind of misunderstood the calls. [00:28:25] Speaker 03: Because the district court says that, or maybe misunderstood what crime was charged, the district court says that this call is direct evidence that defendants sold drugs on July 2, 2020. [00:28:38] Speaker 03: I don't think we have a situation here where a defendant is charged with selling drugs on July 2nd or admitting it. [00:28:44] Speaker 03: So what do we do with that? [00:28:46] Speaker 01: Yes, that is correct, Your Honor, but I don't think that that was the sole basis on which the district court ruled that this was direct evidence of the charged offense. [00:28:56] Speaker 01: As I said, the discussion on the record shows the September 23rd call was played for the court. [00:29:03] Speaker 01: A discussion was had about the arrest that led to those calls. [00:29:06] Speaker 01: So the court was aware and based its decision at least in part on the fact that the defendant was referencing his three arrests which included July 2nd I see that I'm out of out of time so unless the court has further questions the government asked sorry I just like it I'm not sure I understood your answer to my last question and we you can keep going as long as we're asking questions so it what do we make of the fact that the district court seems to have thought that [00:29:32] Speaker 03: Either that the calls or the crime involved actually selling drugs on July 2nd. [00:29:40] Speaker 03: It seems like the district court was confused about both I guess the substance of what the calls admitted and maybe what happened on July 2nd to. [00:29:50] Speaker 01: Well, we don't know that the defendant didn't sell drugs on July 2nd. [00:29:54] Speaker 01: He wasn't caught selling drugs. [00:29:56] Speaker 01: But the admission that I sell drugs to five or six people on that day, that could also be true, is just that he was caught after he had done those things. [00:30:04] Speaker 03: Well, he didn't say on that day, though. [00:30:06] Speaker 01: That's also true, but he's balking at the fact that he would be charged federally because he only sells to five or six people, and he knows that one of the potential charges arises from his conduct on July 2nd. [00:30:19] Speaker 01: So that is the inferential chain, if you will, that led the district court to believe he was referring, at least in part, to conduct that took place on July 2nd, because he knew which arrests he was there for. [00:30:33] Speaker 01: And he knew what his pending charges were, and he was saying, why would any of these go federal? [00:30:38] Speaker 01: I only sell to five or six people. [00:30:40] Speaker 04: Is the distinction between possession and selling, do you think it's a meaningful one in terms of resolving this particular question here? [00:30:49] Speaker 04: Because the possession charge wasn't just simply possessing it, it was possessing with intent to distribute. [00:30:55] Speaker 01: Yes, Your Honor, you mean in relation to the statement, I sell drugs to five or six people? [00:30:58] Speaker 01: Yeah, exactly. [00:30:59] Speaker 01: Yeah, I don't think the distinction is important because if you sell to five or six people, what necessarily you must first possess with intent to distribute. [00:31:08] Speaker 01: And so that statement is consistent with admitting to key parts of the charge defense in the federal case. [00:31:16] Speaker 04: Yeah, I'm just trying to understand whether the nature of the charge here and when we're asking, you know, what's the relation of I sell drugs to the crime of possession, whether [00:31:25] Speaker 04: this just kind of restates the problem or is it a different way of looking at it? [00:31:30] Speaker 01: I think it relates directly to the conduct that was charged, because if it is true that he deals drugs to five or six people and dealt drugs to five or six people on July 2nd, that would be appropriate. [00:31:44] Speaker 03: You keep jumping to that. [00:31:46] Speaker 03: This is why I think the district court made a mistake. [00:31:48] Speaker 03: No one ever proved that he sold drugs to people on July 2nd. [00:31:52] Speaker 03: And no one ever said it on a call. [00:31:55] Speaker 03: So when you add that, you're adding to the confusion here. [00:31:58] Speaker 01: I understand your point, Your Honor. [00:32:00] Speaker 01: So even though he's not saying that I sold on July 2 in particular, the first step is a question of admissibility. [00:32:08] Speaker 01: And that is, by preponderance of evidence, was the defendant referring in part to conduct that took place on July 2? [00:32:16] Speaker 01: And is that conduct? [00:32:18] Speaker 01: probative as to whether or not he was, is it relevant, is it probative to whether he committed the charge defense. [00:32:24] Speaker 01: And so by referring to his three arrests and talking about his surprise that any of them would go federal because he only sells to five or six people, he is talking about his conduct during the relevant period from July through August. [00:32:43] Speaker 01: Because he sells to five or six people during that entire period, it is probative as to whether or not he possessed on the particular date that falls within that time period. [00:32:53] Speaker 04: That's kind of the usual argument. [00:32:55] Speaker 04: I mean, propensity evidence is probative. [00:32:57] Speaker 04: The fact that somebody sold drugs three times makes it more likely that they sold them a fourth time. [00:33:01] Speaker 04: But the law comes in and says, we're going to put some limits on that, because that can be very prejudicial. [00:33:07] Speaker 04: And here, the issue was that there was not an instruction given to help cabin some of that. [00:33:11] Speaker 01: The reason that this is not a situation of propensity is because that time period, like in Dorsey, like in Nacocha Varela, that time period included was inclusive of the date of the charge of defense. [00:33:26] Speaker 01: So in other words, if a defendant says, I sold drugs from January 1st to January 10th, and there's a charge of defense on January 5th, [00:33:33] Speaker 01: Well, then you're in the territory of direct evidence of the crime. [00:33:38] Speaker 01: If the charge of offense was January 20th outside that period, well, then I agree that it would then be just purely propensity, because in that case, the time period covered by the admission does not include the time period where the offense conduct occurred. [00:33:56] Speaker 01: Does that address your question, Your Honor? [00:33:58] Speaker 01: Thank you. [00:33:58] Speaker 01: Yes. [00:33:59] Speaker 03: We've taken you over your time. [00:34:00] Speaker 03: Thank you very much. [00:34:01] Speaker 01: Thank you very much. [00:34:01] Speaker 01: The government asks that the court affirm. [00:34:04] Speaker 03: Let's put five minutes on the clock for rebuttal please. [00:34:15] Speaker 02: I'd like to start by responding to the arguments about the September 13th phone call. [00:34:21] Speaker 02: I think Judge Bras, you had some questions about that. [00:34:26] Speaker 02: So this is the phone call where Jolly is relaying a conversation with a police officer, and everyone agrees it's on a different date. [00:34:35] Speaker 02: It was on his August 28th arrest. [00:34:38] Speaker 02: And there's clearly a 403 and a 404B problem with that phone call. [00:34:46] Speaker 02: Because the 404B problem is the fact that this conversation suggests repeated interactions with the police. [00:34:54] Speaker 02: But I just want to point out that the government also used it that way. [00:34:57] Speaker 02: At page 320 of the record, in the government's closing, they play the audio of that phone call. [00:35:03] Speaker 02: And they say, I'm far from ahead. [00:35:04] Speaker 02: These police keep taking my drugs and money. [00:35:07] Speaker 02: And then I wanted to point out as well that they also use it in a way that creates a 403 violation because they say at page 320 of the record, he's not, they play the phone call and they say he's not denying that he had drugs that day. [00:35:23] Speaker 02: They play that phone call and then they say that. [00:35:24] Speaker 02: So they're using it as an admission for July 2nd, which is obviously misleading to the jury. [00:35:32] Speaker 02: At page 223, they play the phone call and they say, he's far from ahead because the police on July 2nd took his dope and his money. [00:35:41] Speaker 02: So they're using that phone call in violation of both 404B and 403. [00:35:47] Speaker 02: So I just wanted to point that out because it wasn't in the briefing where they use it in that way. [00:35:53] Speaker 02: Second, I wanted to respond to the government's argument about the legal error that happened here. [00:36:03] Speaker 02: They say that we cited Parks as our best case, but I agree that Parks is distinguishable in a couple of ways. [00:36:11] Speaker 02: The phrase that was problematic in parks was the phrase robbery surveillance. [00:36:19] Speaker 02: And you could obviously just kind of take out the word robbery and then there wouldn't be a 404b problem. [00:36:24] Speaker 02: I think a better case is, there are a couple of better cases, Carpenter. [00:36:29] Speaker 02: That's the Ninth Circuit case that we cited from 2019 that involved a conspiracy to kidnap [00:36:37] Speaker 02: And in that case, there was evidence that the defendant smoked meth during a kidnapping. [00:36:44] Speaker 02: And this court said that evidence has some salience as direct evidence to rebut the duress defense, the fact they were smoking meth. [00:36:53] Speaker 02: But it is also a 404b problem, because it's evidence of some other wrong or bad act. [00:37:02] Speaker 02: Using drugs is generally considered to be a 404b. [00:37:05] Speaker 02: 404b evidence. [00:37:06] Speaker 02: So despite having some salience as direct evidence, this court found it was also a 404b problem. [00:37:13] Speaker 02: So I just want to respond to their argument that what I understand their argument to be is that if the evidence is direct evidence, it does not trigger rule 404b. [00:37:28] Speaker 03: And I just think that's- It looks like in Carpenter it was excluded under 403, not 404b. [00:37:33] Speaker 02: I think it was 403 and 404B, the meth, the smoking meth. [00:37:38] Speaker 03: We seriously doubt that Velasquez's meth use speaks to his motive to commit kidnapping or conspiracy, although we find that the evidence is probative of a state of mind and absence of duress. [00:37:48] Speaker 03: Nonetheless, we conclude that the district abuses discretion under 403. [00:37:52] Speaker 02: Well, I don't have it in front of me, but my understanding is it was also found to be a 404B problem. [00:37:59] Speaker 02: But then another case that I think is more on point is Simpson, which is the Seventh Circuit case that we rely on heavily from 2007. [00:38:07] Speaker 02: And in that case, the defendant made a post-arrest statement, I was a crack dealer for three to four years. [00:38:14] Speaker 02: I did similar sales during that time, including for someone called Hatton, who [00:38:20] Speaker 02: who is the subject, one of the subjects of that investigation. [00:38:23] Speaker 02: And the defendant says, so it's possible I did this sale. [00:38:27] Speaker 02: And the court in Simpson ruled that that statement was not admissible as inextricably intertwined because it was about unrelated drug sales and it wasn't a conspiracy. [00:38:40] Speaker 02: And then it also held that it was inadmissible under 404B. [00:38:46] Speaker 02: Because it wasn't sufficiently detailed, there wasn't enough of a nexus to be construed as an admission. [00:38:53] Speaker 02: So I think even if this court could come up with a ground for admissibility under 404B sitting here today, that's not how the evidence was admitted at this trial. [00:39:06] Speaker 03: Yeah, this gets to my confusion question, so can I ask you this question too? [00:39:11] Speaker 03: I think maybe the district judge somehow got confused about whether either the crime charged was sale or the calls admitted sale and so that arguably made other sales other acts but the crime charged was actually possession with intent to distribute and I'm still having trouble like it seems like the district court maybe thought there's a sale and then there are other sales that's propensity but if it's intent to distribute [00:39:41] Speaker 03: a period of sales would be relevant to intent to distribute, at which point, arguably, it's not under 404B at all, because it's direct evidence. [00:39:50] Speaker 02: Well, I think it is still under 404B if a jury could. [00:39:53] Speaker 02: The phrase this court used in parks was if the jury would likely infer from the statement that the defendant had committed other bad acts in the past. [00:40:03] Speaker 02: So I think even to the extent that the phone calls [00:40:09] Speaker 02: have a probative of jolly's intent during that time period. [00:40:15] Speaker 02: They present a 404b problem because of how a jury could interpret them and because of how they were used for propensity. [00:40:22] Speaker 00: And so at that point, the real evil here by the district court was not giving the [00:40:29] Speaker 02: The limiting instruction correct your honor it was that it was out of solve most of your problem Although there are two problems one is there was no limiting instruction telling the jury you cannot consider this for propensity and then the second Different problem is the use of the evidence as propensity evidence at trial [00:40:48] Speaker 02: If I mean obviously if the court gave a limiting instruction or even if it was just direct evidence You cannot use that evidence in violation of 404 B. So it's two different problems It's the use at trial and it's the lack of a limiting instruction and with respect to the September 13th call that was redacted What was your position on that and where did you kind of have to level down to once you started? [00:41:12] Speaker 04: essentially losing some of your legal points here and [00:41:15] Speaker 02: And so the position on that was that it should be excluded entirely yes, okay? [00:41:20] Speaker 04: So we didn't agree to those and what about the redactions did you agree to those um? [00:41:26] Speaker 02: To be honest. [00:41:27] Speaker 02: I wasn't trial counsel below. [00:41:28] Speaker 02: I'm not entirely sure so I don't want to say something that's incorrect. [00:41:31] Speaker 02: I'm sorry, okay Thank you very much. [00:41:35] Speaker 03: Okay. [00:41:35] Speaker 03: Thank you sides for the helpful arguments this case is submitted