[00:00:12] Speaker 01:
Good morning, Your Honors.

[00:00:12] Speaker 01:
May it please the court.

[00:00:13] Speaker 01:
Deborah Gonzales from the Federal Public Defender's Office on behalf of Appellant Mr. Cruz Noel Quintero.

[00:00:19] Speaker 01:
I plan to reserve four minutes for a rebuttal and I will watch my clock.

[00:00:23] Speaker 01:
Your honors, given the district court's three erroneous rulings in this case, it's not surprising that the jury convicted Mr. Quintero of distributing fentanyl resulting in death, account for which he is now serving a 24-year sentence.

[00:00:35] Speaker 01:
This morning, I wanted to talk about why those three rulings were wrong and deprive Mr. Quintero of a fair trial.

[00:00:40] Speaker 01:
I would like to talk about those issues in the following order.

[00:00:43] Speaker 01:
First, the character evidence.

[00:00:45] Speaker 01:
Second, the misjoinder.

[00:00:46] Speaker 01:
And finally, the warrant.

[00:00:49] Speaker 01:
Regarding the character evidence, Your Honors, there were two major issues with the so-called 404B evidence that Mr. Quintero had sold diluted drugs to people in Minnesota and to this individual named Dave Scott.

[00:01:00] Speaker 01:
The first is that it was pure character evidence, which is not admissible under Rule 404A or 404B1.

[00:01:07] Speaker 01:
Specifically, the government argued that evidence that Mr. Quintero had previously sold diluted drugs showed that he had a, quote, dangerous or reckless character trait.

[00:01:17] Speaker 01:
And that on the day in question, he acted in conformity with those character traits, either by dangerously selling Miss Molino fentanyl, passing it off as cocaine, or recklessly grabbing a baggie of fentanyl, believing that it was cocaine.

[00:01:31] Speaker 01:
That is pure propensity evidence.

[00:01:34] Speaker 01:
It's not allowed under Rule 404A, and it did not satisfy an exception under Rule 404B2.

[00:01:41] Speaker 01:
Mr. Quintero, again, this evidence also, I'm sorry, was not admissible under Rule 403.

[00:01:49] Speaker 01:
The probative value was low because it did not actually even show that he was reckless, even if that had been admissible character evidence, because prior sales of diluted product do not demonstrate that you then engaged in a sale of a pure product.

[00:02:05] Speaker 01:
And it also didn't demonstrate dangerousness, again, even if that were allowed under Rule 404.

[00:02:10] Speaker 01:
because it wasn't, for example, evidence that Mr. Quintero had previously sold one drug passing it off as another.

[00:02:18] Speaker 01:
So it had very low probative value.

[00:02:21] Speaker 01:
It was not admissible for that purpose, and it was highly prejudicial.

[00:02:24] Speaker 00:
Why wasn't it relevant to the point of this person who sells drugs sells things that are mixed together?

[00:02:31] Speaker 01:
Because this case, Your Honor, was a sale of 100% pure fentanyl.

[00:02:35] Speaker 01:
Well, it turned out that way.

[00:02:37] Speaker 01:
Yes.

[00:02:38] Speaker 00:
But the defense was that he didn't do it, that he didn't have any fentanyl.

[00:02:41] Speaker 01:
Correct.

[00:02:41] Speaker 01:
The defense was that he had sold cocaine.

[00:02:43] Speaker 01:
So there wasn't even any evidence that in the past he had, for example, mistakenly sold one product calling in another, or that he had sold, you know, that he had cut even drugs with fentanyl.

[00:02:56] Speaker 01:
And so what the government did was they took these prior acts and they said, these acts show that he's reckless.

[00:03:02] Speaker 01:
He runs a dangerous and a reckless business.

[00:03:05] Speaker 01:
And therefore, on this day, he was dangerous and reckless.

[00:03:10] Speaker 00:
I still come back to, I'm not quite sure I'm following, why it wouldn't be relevant to show that this person sells drugs to people represents that they're one thing when they're not.

[00:03:19] Speaker 01:
Because there was no indication he had ever tried to pass off, for example, cocaine or methamphetamine as one kind of drug.

[00:03:26] Speaker 00:
But our authority says that we don't need an exact match of substances for it to be relevant.

[00:03:31] Speaker 01:
You don't need an exact match, but the prior act does have to show, for example, if the government were going to introduce this to show knowledge, it would need to show that the knowledge gained from the prior act was the same type of knowledge that they were trying to show in this case, which it didn't.

[00:03:49] Speaker 01:
And the prior acts here were selling adulterated drugs, and the act in this case was selling pure fentanyl.

[00:03:58] Speaker 01:
So I don't think that there was any sort of propensity-free chain of reasoning, Your Honor, that would have allowed the government to introduce this under Rule 404.

[00:04:06] Speaker 01:
If he had in fact sold drugs in the past that were diluted that would not show that with any propensity freeway that on the day in question he sold the drug that wasn't what he said it was.

[00:04:23] Speaker 01:
It was also highly prejudicial, Your Honor.

[00:04:26] Speaker 01:
The risk of unfair prejudice was very high because this was

[00:04:33] Speaker 01:
This was a really tragic case because someone passed away, obviously.

[00:04:37] Speaker 01:
But the evidence, the 404B evidence, the government argued at trial, demonstrated that he had been running this operation recklessly for over a year and that he had risked perhaps hundreds, if not more, thousands of lives by engaging in this conduct over the course of a year.

[00:04:54] Speaker 01:
So it was highly prejudicial.

[00:04:55] Speaker 01:
And the government can't rebut the presumption of prejudice that applies because this was really important evidence for them.

[00:05:02] Speaker 01:
It filled in a gap in their case, which was that Mr. Quintero, despite the piles of evidence that they had in this case, that he had been drug trafficking for over a year, there was no evidence that he had ever sold fentanyl or cut any drug with fentanyl before.

[00:05:21] Speaker 01:
So this was a huge hole in their case and it was the heart of the defense.

[00:05:26] Speaker 01:
The jury instruction was not sufficient.

[00:05:28] Speaker 01:
because the jury instruction here allowed, it just allowed the government to use it for every purpose under Rule 404.

[00:05:35] Speaker 01:
It didn't even explain how the government actually was using it in this case, which was as character evidence.

[00:05:41] Speaker 01:
And it was confusing because the government's entire closing and rebuttal closing was based on the idea that Mr. Quintero was reckless and dangerous and therefore that's what had happened in this case.

[00:05:52] Speaker 01:
That this was the natural and probable consequence of the way that he

[00:05:55] Speaker 01:
the character way that he was running his drug enterprise.

[00:05:59] Speaker 00:
Before we run out of time, would you switch gears to the mis-joinder issue?

[00:06:02] Speaker 01:
Yes, Your Honors.

[00:06:03] Speaker 01:
The first problem that the court made, the first error that the district court made with respect to mis-joinder was it concluded, it appears to have accepted the government's legally erroneous theory that two groups of counts can be joined even though they don't satisfy a method of rule eight joiner as to each other because they each somehow independently satisfy a method of rule eight joiner as to a third group of counts.

[00:06:26] Speaker 01:
That's simply not allowed.

[00:06:27] Speaker 01:
There is no magic fourth method of Joinder under Rule 8A.

[00:06:31] Speaker 01:
8A provides for three, and these groups of counts, specifically I'm talking about the firearms and the fentanyl distribution count, did not satisfy a method of Rule 8 Joinder as to each other.

[00:06:43] Speaker 01:
The government waived any argument that it did, and Mr. Quintero was prejudiced by that as well.

[00:06:49] Speaker 00:
Well, I think that's the key for you, right?

[00:06:50] Speaker 00:
I think the harder argument for you is to show actual prejudice that the jury's verdict was impacted by the joiner of these claims.

[00:06:58] Speaker 01:
I don't think so, Your Honor, respectfully.

[00:07:00] Speaker 01:
I think that when we're talking about specifically and especially the firearms offenses, that was incredibly prejudicial for Mr. Quintero.

[00:07:08] Speaker 01:
Mr. Quintero's fentanyl distribution count

[00:07:10] Speaker 01:
In fact, there's no evidence that that involved a gun, right?

[00:07:15] Speaker 01:
That offense occurred in the parking lot of the hospital where he was working at a nurse.

[00:07:19] Speaker 01:
It was a small hand-to-hand transaction between him and a friend of his and colleague.

[00:07:23] Speaker 00:
Sure, you have the strongest argument that there's no connection between the distribution and the firearms charges.

[00:07:28] Speaker 00:
I think the drug premises charge is much harder for you to say.

[00:07:30] Speaker 00:
It shouldn't have been joined with distribution.

[00:07:32] Speaker 00:
But I give you, the gun charge and the distribution charge seem to be different and maybe not joinable.

[00:07:39] Speaker 00:
In order to have a reversible error, you have to show prejudice.

[00:07:41] Speaker 00:
So why is it that we should think that the jury was more likely to convict him on distribution because they were hearing about guns?

[00:07:49] Speaker 01:
Because so in this court's case in United States versus Terry The court recognized that it can be prejudicial for a jury to hear that a gun dealer that a drug dealer carries a gun And in mr. Quintero's case these firearms offenses allowed in evidence of 15 I think there were 15 guns and so we're not just talking about the jury see that they wouldn't have otherwise seen Can you be specific?

[00:08:12] Speaker 04:
Yes, your honor they saw

[00:08:14] Speaker 01:
I'm trying to find the exact pinpoint site, but there was evidence of 15 guns.

[00:08:21] Speaker 01:
They were machine guns, AR-15s, AK-47s, unregistered short-barreled rifle, information about how much Mr. Quintero quote loves guns, his familiarity with guns, his attempt to buy a silencer.

[00:08:36] Speaker 01:
There were photographs of Mr. Quintero that the jury was shown from his phone.

[00:08:41] Speaker 01:
including one that I will find the pinpoint site for, but I was, you know, preparing for today's argument.

[00:08:46] Speaker 01:
I was looking at it, and it's a pretty scary photograph of Mr. Quintero in some sort of, like, scary ski mask holding what looks like a machine gun and then quenching it.

[00:08:54] Speaker 01:
I've seen that photo.

[00:08:54] Speaker 01:
Was that admitted?

[00:08:56] Speaker 01:
It was admitted, Your Honor.

[00:08:56] Speaker 01:
It was, I believe it was exhibit 160, but I'll get the pinpoint site for the court.

[00:09:01] Speaker 01:
So none of those things would have been admissible at a separate trial of the fentanyl distribution county.

[00:09:07] Speaker 00:
I mean, for that, for the prejudice argument to work, it seems to me you have to,

[00:09:10] Speaker 00:
We have to conclude that the jury would have just been inflamed by the gun activity.

[00:09:16] Speaker 00:
And then, oh, he's just a really bad guy.

[00:09:18] Speaker 00:
We want him off the streets.

[00:09:19] Speaker 00:
And so we're going to convict him of the whole sheet of things that were presented to us.

[00:09:22] Speaker 00:
That's the theory you're running with?

[00:09:24] Speaker 01:
It is, Your Honor.

[00:09:24] Speaker 01:
And I would note that there's a presumption of prejudice that the court has found misjoinder.

[00:09:28] Speaker 01:
The government has to rebut that presumption.

[00:09:30] Speaker 01:
And yes, under Terry, even one gun.

[00:09:34] Speaker 01:
And here we're talking about 15.

[00:09:35] Speaker 00:
So one of the factors that we think about is, is there any possibility

[00:09:39] Speaker 00:
that there would have been overlap of evidence had they been tried separately.

[00:09:44] Speaker 00:
So what tells us that if the distribution charge had been tried by itself, or at least without the gun charges, that this jury never would have heard about gun activity at all?

[00:09:53] Speaker 00:
That seems difficult to accept.

[00:09:56] Speaker 01:
I don't think that guns were relevant to the fentanyl distribution count because there was no indication that he brought a gun to the crime.

[00:10:03] Speaker 00:
Sure, but wouldn't the government have been able to explain why they were even able to investigate him and the search and all of that stuff?

[00:10:12] Speaker 00:
That would have brought in at least some of the gun story, maybe not all of it.

[00:10:15] Speaker 01:
Not if it was prejudicial, Your Honor, and I think it was, and especially the extent of gun testimony that was allowed in this case.

[00:10:23] Speaker 03:
Isn't it your burden now to show prejudice here?

[00:10:27] Speaker 01:
No, Your Honor.

[00:10:27] Speaker 03:
Is it the jury that the jury would have come to a different conclusion?

[00:10:32] Speaker 01:
Your Honor, if we have shown misjoinder, which I think we have, then it's the government's burden to rebut the presumption of prejudice that applies by showing it's more probable than not that it material affected the verdict.

[00:10:42] Speaker 03:
And you believe that did not occur here?

[00:10:45] Speaker 01:
Correct.

[00:10:46] Speaker 01:
And one other reason I haven't mentioned is because the evidence of gun possession and the 924C were admittedly very strong in this case.

[00:10:55] Speaker 01:
I will get up here and say that because it was.

[00:10:57] Speaker 01:
But there was a major hole in the government's case with respect to whether Mr. Quintero had actually given Ms.

[00:11:03] Speaker 01:
Molino cocaine or fentanyl.

[00:11:04] Speaker 00:
Sure.

[00:11:05] Speaker 00:
I mean, I agree with you that the evidence, the body of evidence on those different charges had a different

[00:11:10] Speaker 00:
wait, we'll say.

[00:11:12] Speaker 00:
But we have to be able to say that because the gun charge was likely going to be proven, that they're necessarily going to convict him of this other thing.

[00:11:20] Speaker 00:
And that's the part that I'm having a hard time putting all the pieces together.

[00:11:25] Speaker 00:
Because we've got a situation where, as you've already described, the evidence that relates to those two charges is pretty separate.

[00:11:32] Speaker 00:
The jury's not going to be confused about evidence that relates to this is also going to relate to that.

[00:11:36] Speaker 00:
These are two separate things going on.

[00:11:39] Speaker 00:
and then the possibility that even if they had been tried separately, at least some indication of gun activity was coming in anyways.

[00:11:46] Speaker 01:
With respect to the confusion, Your Honor, I think, no, there was not, well,

[00:11:52] Speaker 01:
I don't agree that it was not confusing for the jury to hear the gun evidence.

[00:11:56] Speaker 01:
The jury instruction that was given in this case was that you must consider all these counts separately.

[00:12:00] Speaker 01:
But there was no instruction to the jury about what came in as for what aspect of the guns could be considered.

[00:12:06] Speaker 00:
Why would they need that when the elements of the crime make it pretty clear?

[00:12:10] Speaker 00:
For this charge over here, there's no reference at all to any sort of gun activity.

[00:12:13] Speaker 00:
or possession of guns, or presence of guns.

[00:12:16] Speaker 00:
And over here, there is.

[00:12:18] Speaker 00:
Can't we just assume the jury can read and understand that these two crimes have different elements?

[00:12:22] Speaker 01:
I don't think so, Your Honor, because I think the way that the government got up in closing and presented this evidence was Mr. Quintero is a high-level drug dealer.

[00:12:30] Speaker 01:
He guards all of his stuff with machine guns, and he's very scary, and he's a reckless person, and on this day, his entire business crumbled down because of what he did.

[00:12:39] Speaker 01:
So the government was intertwining the evidence of the firearms with the fentanyl distribution count.

[00:12:45] Speaker 01:
But I think the bigger point for the firearms is how sort of salacious they were.

[00:12:50] Speaker 01:
The fentanyl distribution count was obviously tragic, but the firearms were very scary too.

[00:12:56] Speaker 01:
So it's not that the jury, it's not as much that the jury couldn't keep those separate.

[00:12:59] Speaker 01:
And with respect to the drug premises count, this court has said that when counts are misjoined,

[00:13:04] Speaker 01:
even though they are similar, that that raises the risk of prejudice.

[00:13:08] Speaker 01:
So there was certainly a lot of prejudice from the drug premises count as well.

[00:13:12] Speaker 01:
And specifically, as I mentioned earlier, the fact that this was, you know, kilogram quantities of diluted product which the government argued to the jury despite not having evidence of it, that this was dangerous product and risked hundreds of lives over the course of a year was extremely prejudicial to Mr. Quintero on the fentanyl distribution count.

[00:13:34] Speaker 01:
If there's nothing else at this time, I would like to reserve the remaining time for rebuttal.

[00:13:39] Speaker 00:
Just while you are thinking about it for rebuttal, I mean, as a formal trial judge, I used to think about this a lot in terms of, like, if you had any sort of whiff of a claim about, you know, child sex abuse or something, then yes, like prejudice, right, jumps to mind, and we're really concerned about that.

[00:13:55] Speaker 00:
Not so much in my mind about a drug charge, or I'm sorry, a gun charge.

[00:13:59] Speaker 00:
So do you have authority on the federal side to say that, and again you don't have to answer me right this minute, about a gun charge sort of raising that automatic concern about prejudice?

[00:14:10] Speaker 01:
That would be, Your Honor, in United States versus Terry, which was a case where there was evidence of a drug distribution on one day.

[00:14:17] Speaker 01:
Officers went to execute a warrant, and they found firearms.

[00:14:21] Speaker 01:
And Mr. Terry was charged in a joint indictment.

[00:14:23] Speaker 01:
And this court held that the counts were misjoined and specifically said that a jury would be prejudicial for the defendant to hear that a drug dealer carries a firearm or is associated with firearms.

[00:14:39] Speaker 01:
So that's United States versus Terry and the evidence of drug of firearms in this case was much more counsel you over time.

[00:14:45] Speaker 04:
Thank you For planning purposes when you come back, we'll put a minute on the clock you bet

[00:14:59] Speaker 02:
Good morning, Your Honors.

[00:15:00] Speaker 02:
May it please the Court, Saria Bahadou, on behalf of the United States.

[00:15:04] Speaker 02:
So I will focus on Joinder, which is where the Court just left off, but I want to make one correction of the record.

[00:15:11] Speaker 02:
The government did not call this defendant reckless and dangerous.

[00:15:15] Speaker 02:
In the closing argument, the government explicitly said that he operated a reckless and dangerous business, and that is a fair inference from drug trafficking business.

[00:15:25] Speaker 02:
There's not a reference that the defendant himself was reckless or dangerous.

[00:15:29] Speaker 02:
And just to step back, this case is not a one-off deal with Brianna Molino.

[00:15:35] Speaker 02:
It is about the defendant's drug trafficking business and how he operated it for nearly a year, and that particular count was one example of that business.

[00:15:44] Speaker 02:
So when there is a discussion in the closing talking about the counts altogether, it's because that was the case.

[00:15:51] Speaker 02:
That was the crime.

[00:15:52] Speaker 02:
The defendant operating a drug trafficking business and the guns and the drug deal all being interwoven together.

[00:15:59] Speaker 00:
Was the jury ever told specifically by counsel at argument or by the court the permissible use for the 404B evidence?

[00:16:09] Speaker 02:
for the four four b evidence in in the uh... jury instructions that the court did instruct them that the are you talking about the dave scott and minnesota evidence?

[00:16:18] Speaker 02:
yes that it would it is direct evidence of the drug premises count and it is four four b evidence uh... knowledge intent motive opportunity lack of misdemeanor so it gave the whole long list it gave the list and it didn't actually hone in the jury about like this is how you can use this evidence yes and there was a discussion with the defense counsel about this jury instruction there was no

[00:16:36] Speaker 02:
objection in terms of limiting or narrowing the purposes.

[00:16:40] Speaker 02:
It simply was, we had that discussion and we followed the 404b model instruction from this court.

[00:16:45] Speaker 02:
And plus, that is what Voe, that

[00:16:49] Speaker 02:
In vogue, the court says that prior drug trafficking activity is admissible, knowledge, intent, mode of opportunity, absence of mistake, and lack of accident.

[00:16:58] Speaker 02:
So the court did not abuse its discretion when it admitted that evidence, and it certainly did not when it offered a limiting instruction and wanted to ensure that the jurors were careful in considering the Dave Scott and Minnesota evidence.

[00:17:11] Speaker 02:
And to be clear, the government did not mention

[00:17:14] Speaker 02:
the Dave Scott or the Minnesota evidence when it marshaled through the proof relating to the drug distribution count.

[00:17:20] Speaker 02:
So when the defense counsel says that there's gaps in the government's case, we were not filling gaps.

[00:17:25] Speaker 02:
We do not subscribe that there were gaps, but we were not relying on the Dave Scott or the Minnesota evidence with respect to the drug distribution count.

[00:17:33] Speaker 02:
But going back to Joinder, if I may, I want to make sure that

[00:17:36] Speaker 02:
The inquiry before the court is a Rule 8a inquiry.

[00:17:39] Speaker 02:
It's whether these counts may be permissibly joined together under one of Rule 8a's three requirements.

[00:17:45] Speaker 02:
It is not a Rule 14 inquiry.

[00:17:48] Speaker 02:
It is not whether hearing guns is going to prejudice the jury against the defendant because it's also being told with drug counts.

[00:17:54] Speaker 02:
It is a Rule 8a inquiry.

[00:17:56] Speaker 00:
Those considerations come in on the prejudice analysis.

[00:17:59] Speaker 02:
Sure.

[00:18:00] Speaker 02:
Once the court decides

[00:18:01] Speaker 02:
If the court were to say that there was misjoinder, then we look at prejudice.

[00:18:04] Speaker 02:
But even then, when the court laid out the factors to consider in prejudice in Lane and as they were then applied in Jawara, it doesn't actually take a look at is one count prejudicing the other.

[00:18:16] Speaker 02:
They ask if there was a limiting instruction, which there was.

[00:18:19] Speaker 02:
And when there was a limiting instruction in Jawara, this court said that militates against a finding of prejudice.

[00:18:26] Speaker 02:
It then asked, was there substantial proof proving each of the counts?

[00:18:31] Speaker 02:
Independent, and there absolutely was.

[00:18:33] Speaker 02:
I think the defense just conceded there was substantial proof of the drug premises counts as well as the firearm counts, and there was substantial proof of the drug distribution count.

[00:18:42] Speaker 02:
Then the court asked, I think, is there going to be cross admissibility, which is what you were honing in on with defense counsel, and there absolutely would be cross admissibility.

[00:18:51] Speaker 02:
In any case involving the drug counts, the drug premises charge is going to bring in the firearm counts and that's because

[00:18:59] Speaker 02:
Well, one for two reasons.

[00:19:00] Speaker 02:
One, there is case law that says firearm possession does show known involvement in the drug trade.

[00:19:06] Speaker 02:
That's in Butcher, which we do cite in our brief.

[00:19:09] Speaker 02:
And in Butcher, they rely on a case called Crespo for that exact point.

[00:19:14] Speaker 02:
But two, there would be cross admissibility because in any drug deal case, the government would seek to admit the full picture, the full story of how we then executed a search warrant and found drug trafficking paraphernalia.

[00:19:25] Speaker 02:
All of that drug trafficking paraphernalia absolutely goes to the defendant's state of mind for a drug deal.

[00:19:31] Speaker 02:
But more importantly, the firearms are not just kind of separate in a safe, in a car, in a shed.

[00:19:37] Speaker 02:
They were interwoven with the defendant's drug trafficking paraphernalia.

[00:19:40] Speaker 02:
You had a gun with a scale and with baggies.

[00:19:43] Speaker 02:
You had guns.

[00:19:44] Speaker 02:
Are you talking now about where they were located?

[00:19:47] Speaker 02:
I am, but I'm saying that because

[00:19:49] Speaker 02:
In any case involving the drug trafficking, in any case involving a drug deal, if you had the drug premises count coming in, we would be seeking to admit not just the drug trafficking paraphernalia, but also the gun evidence.

[00:20:01] Speaker 02:
That part I understand.

[00:20:01] Speaker 04:
I was just trying to direct a question where you said the guns were interrelated or interwoven.

[00:20:06] Speaker 04:
They were.

[00:20:07] Speaker 02:
proximity wise now where they were seized is absolutely proximity wise purpose wise the whole I mean he was protecting his business with with these firearms and that's what opposing counsel's point is that that's not true of this charge before for this charge and this very tragic

[00:20:25] Speaker 04:
Distribution of fentanyl it was these were two coke workers.

[00:20:28] Speaker 04:
They were friends This was there were not I don't think there's any allegations that were in but drugs involved in the in the handoff in the parking lot Guns involved you mean well there was not what did I say you said drugs?

[00:20:38] Speaker 02:
Oh, sorry?

[00:20:38] Speaker 02:
That's okay Guns involved right, but we and if we were to have a standalone trial on the drug deal We would absolutely have sought to it which we don't even believe that would be appropriate because we do believe the drug counts are properly joined and

[00:20:50] Speaker 02:
But say we were to have just one trial, we would absolutely seek to admit the drug trafficking paraphernalia, which under this court's four- What about the guns?

[00:20:58] Speaker 04:
It's a lot of guns.

[00:20:59] Speaker 04:
It's some photos that were pretty shocking.

[00:21:02] Speaker 04:
What about that?

[00:21:02] Speaker 04:
That's her strongest prejudice.

[00:21:04] Speaker 02:
We would seek to admit evidence of the guns.

[00:21:06] Speaker 02:
And we do think there's case law that says evidence of firearms does show knowing involvement in narcotics.

[00:21:12] Speaker 04:
And this is just one- That's the problem, counsel.

[00:21:14] Speaker 04:
He didn't deny distributing

[00:21:18] Speaker 04:
He just said, I thought it was cocaine and it was fentanyl, right?

[00:21:24] Speaker 02:
Well, right.

[00:21:25] Speaker 02:
But all of this does show an intimate familiarity with narcotics.

[00:21:29] Speaker 02:
And the government's point at trial was when someone is knowledgeable about the drug business, they're going to know that, one, that they use adulterants to stretch their product.

[00:21:38] Speaker 02:
Two, drugs can have adulterants in it, even when they're selling.

[00:21:41] Speaker 02:
And that was part of our point.

[00:21:42] Speaker 04:
There weren't adulterants here.

[00:21:43] Speaker 04:
That's the problem, right?

[00:21:44] Speaker 04:
Her argument is that wasn't the case here.

[00:21:46] Speaker 04:
This was 100%.

[00:21:47] Speaker 02:
Fentanyl.

[00:21:48] Speaker 02:
But it is absolutely an adulterant when you ask to buy one drug and you get another one.

[00:21:54] Speaker 02:
This is not a high quality, I think in the brief they talk about this being a high quality sale.

[00:21:58] Speaker 02:
I do not think in any stretch of the imagination that it is a high quality sale when someone asks, I would like to buy cocaine and then they end up with Fentanyl.

[00:22:06] Speaker 04:
Well this goes back to what I think you very said right when you came to the podium, which is that

[00:22:13] Speaker 04:
You push back on the notion that you said that this was propensity evidence about his recklessness.

[00:22:17] Speaker 04:
The business that he was operating wasn't careful.

[00:22:20] Speaker 02:
Absolutely, and that's a fair inference from just drug trafficking from the record itself.

[00:22:26] Speaker 02:
I know we're kind of mixing topics here, but that does kind of speak to how there's just a lot of cross admissibility, which gets to the misjointed was not going to prejudice the defendant.

[00:22:36] Speaker 02:
But that was the highly probative value of the Dave Scott and Minnesota evidence, which I should also correct the record on that as well.

[00:22:44] Speaker 02:
This is a limited amount of evidence.

[00:22:46] Speaker 02:
The Minnesota evidence was not 17 exhibits.

[00:22:49] Speaker 02:
If you actually look at the index, there's not even 17 exhibits.

[00:22:54] Speaker 02:
There's some gaps in the exhibit numbers.

[00:22:56] Speaker 02:
There were only six exhibits.

[00:22:59] Speaker 02:
They were admitted through one witness.

[00:23:02] Speaker 02:
And in total, the Minnesota evidence took up 113 pages of transcript out of a thousand-page jury trial.

[00:23:10] Speaker 02:
The Dave Scott evidence, five messages, three shown to the jury, and again, none of this evidence was mentioned.

[00:23:16] Speaker 02:
when the government was marshalling through the proof of the drug distribution count.

[00:23:20] Speaker 02:
The drug distribution count itself was incredibly strong, and I do want to point out that this was not a case that relied on one witness.

[00:23:27] Speaker 02:
If you look at Brianna Molino's testimony, it is heavily punctuated with text messages because there was a significant amount of digital evidence.

[00:23:35] Speaker 02:
Just the logic of the couple waiting for 45 minutes to an hour demonstrates that they had no other cocaine.

[00:23:42] Speaker 02:
There's a text message that says, if we don't buy the cocaine, if not, oh well, no coke.

[00:23:48] Speaker 02:
You had the victim calling the defendant 20 minutes after finding her boyfriend dead.

[00:23:54] Speaker 02:
You then have the victim deleting, sorry, Brianna Molina, deleting only messages with the defendant.

[00:24:00] Speaker 02:
You have the 911 call where she says,

[00:24:03] Speaker 02:
Sean Frick just used cocaine which is again what they bought from the defendant and then you have the photographs of the pile of white powder Pictured as if it was cocaine which is what the couple believed that they were doing up until Sean Frick died so in terms of I know I kind of skipped around but I do think the misjoinder if the court wants to go straight to whether there was any prejudice under the factors after Juara and Lane we there was no prejudice here and

[00:24:27] Speaker 02:
Terry is very distinguishable.

[00:24:30] Speaker 02:
Thirteen days had passed between the counts.

[00:24:33] Speaker 02:
They were in completely different counties.

[00:24:34] Speaker 02:
And of course, as the court said, there was no overlapping evidence.

[00:24:38] Speaker 02:
Here we had at least four witnesses talking about the overdose and the gun counts.

[00:24:44] Speaker 02:
As far as the 404B and Minnesota evidence, any of that would also be harmless for all the reasons I just listed.

[00:24:50] Speaker 02:
And unless the court has any questions about the Fourth Amendment or any other questions, we would ask that the court affirm the convictions in this case.

[00:24:57] Speaker 02:
Mr. Smith, do you have questions?

[00:24:59] Speaker 03:
I have no question.

[00:25:00] Speaker 04:
I think we've asked them all.

[00:25:02] Speaker 02:
Thank you, Your Honor.

[00:25:02] Speaker 04:
Thank you.

[00:25:11] Speaker 01:
Thank you, Your Honor.

[00:25:12] Speaker 01:
I will try to organize my thoughts here.

[00:25:14] Speaker 01:
The opening brief goes through the evidence as to Minnesota and Dave Scott.

[00:25:17] Speaker 01:
The court can go back and look at those exhibits on the record and see how long it was.

[00:25:22] Speaker 01:
Regarding the strength of the government's case on the drug distribution count,

[00:25:26] Speaker 01:
The critical fact of whether the fentanyl that Mr. Frick ingested came from Mr. Quintero, the only evidence on that at trial was Ms.

[00:25:37] Speaker 01:
Molino's testimony.

[00:25:38] Speaker 01:
So that's where I come saying there was a big gap in the government's case and there was a disparity in the strength of those cases.

[00:25:44] Speaker 01:
And that was important because there were reasons to believe that Mr. Quintero would not have sold his friend pure fentanyl, first that it was his friend.

[00:25:53] Speaker 01:
Fentanyl is four times as expensive as cocaine.

[00:25:58] Speaker 01:
In all of the massive amount of evidence from eight cell phones and an informant who flew in from Minnesota and the wiretaps that the government engaged in in Minnesota, there was no evidence that Mr. Quintero had ever dealt fentanyl before.

[00:26:11] Speaker 00:
Is it relevant to this analysis?

[00:26:14] Speaker 00:
As thinking about this case, I was trying to figure out, am I supposed to do a sufficiency of the evidence analysis and try to figure out, did the jury just make a decision that was not supported by the evidence to get there?

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

[00:26:24] Speaker 01:
It is not a sufficiency of the evidence.

[00:26:26] Speaker 01:
It's a much more lenient, from the defense perspective, prejudice standard.

[00:26:32] Speaker 01:
On the 404B, it's whether I think it

[00:26:35] Speaker 01:
had a substantial and injurious effect on the verdict.

[00:26:40] Speaker 01:
And, excuse me, under Ms.

[00:26:41] Speaker 01:
Joinder, whether it was more probable than not that it materially affected the verdict.

[00:26:46] Speaker 01:
And here it did.

[00:26:48] Speaker 01:
Just one last point.

[00:26:49] Speaker 01:
The photograph I was discussing specifically is at ER 1534 to 35.

[00:26:55] Speaker 01:
I see that I'm almost out of time.

[00:26:58] Speaker 01:
You are.

[00:26:58] Speaker 01:
Out of time.

[00:26:59] Speaker 01:
The clock's going back up.

[00:27:00] Speaker 01:
I would just thank you, Your Honor.

[00:27:01] Speaker 01:
I would just ask the court, you know, this was obviously a very serious case.

[00:27:04] Speaker 01:
Mr. Quintero is serving 24 years and we need faith in this verdict and on these facts we don't have it.

[00:27:09] Speaker 01:
Thank you very much.

[00:27:10] Speaker 04:
Thank you all.

[00:27:11] Speaker 04:
We'll take that case under advisement.

[00:27:13] Speaker 04:
We're going to stand and recess for about five minutes and then we'll come back for the last arguments on the calendar.

[00:27:17] Speaker 04:
All rise.

[00:27:21] Speaker 04:
Court stands in recess for five minutes.