[00:00:00] Speaker 01:
Let me call the case on the record.

[00:00:01] Speaker 01:
We're going to hear USA versus Rogers, case number 23-3152.

[00:00:06] Speaker 01:
Each side will have 15 minutes.

[00:00:10] Speaker 01:
And if the appellants would like to reserve time for rebuttal, please make sure to let me know.

[00:00:14] Speaker 01:
And remember that you are responsible for keeping track of your own time.

[00:00:17] Speaker 03:
I will keep track of my own time if it's OK with you, Your Honor.

[00:00:21] Speaker 03:
I'd like to make that decision at the end of 13 minutes, whether I want to press forward or not.

[00:00:27] Speaker 03:
So I will keep track of that, OK, if it's fine with this court.

[00:00:31] Speaker 01:
That works.

[00:00:32] Speaker 03:
Go ahead.

[00:00:33] Speaker 03:
Members of the panel, the principal issue in this case.

[00:00:35] Speaker 02:
Well, to be fair, I don't mean to cut into your time.

[00:00:39] Speaker 02:
But to be fair, whether you reserve it or whether you don't, we're going to ask you questions which will kind of go over, just like we did with last council.

[00:00:47] Speaker 02:
So it's not a big deal.

[00:00:49] Speaker 02:
So just go forward.

[00:00:50] Speaker 03:
I expect questions.

[00:00:52] Speaker 03:
I'm sorry to interrupt, but I have points that I want to make that I'm going to try to get out.

[00:00:56] Speaker 03:
And if I can't get them out in 13 minutes, I'm going for the 15.

[00:01:00] Speaker 03:
That's the point that I'm making.

[00:01:02] Speaker 01:
I appreciate that.

[00:01:03] Speaker 01:
Make sure you introduce yourself for the record as well.

[00:01:06] Speaker 01:
Thank you.

[00:01:06] Speaker 03:
Good morning, members of the panel.

[00:01:08] Speaker 03:
My name is Michael Humphries.

[00:01:09] Speaker 03:
I represent the appellate, Caleb Rogers, in this case.

[00:01:13] Speaker 03:
The principal issue in this case, members of the panel, is whether the district court abuse its discretion

[00:01:19] Speaker 03:
and denying the appellant severance motion.

[00:01:22] Speaker 03:
Now in evaluating that ruling.

[00:01:25] Speaker 02:
So when we're looking at the appellant severance motion, we're not really challenging the joiner, because it had already happened.

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

[00:01:38] Speaker 02:
We're challenging the severance, that the district court would not sever it after having joined it.

[00:01:46] Speaker 03:
Right.

[00:01:47] Speaker 02:
Alright I just want to make sure because your brief is kind of unclear whether we're really going for Joinder or Severance but if we're in Severance then it is abuse of discretion.

[00:01:58] Speaker 02:
Yes.

[00:01:58] Speaker 02:
Alright so then at that point don't you have to show that the joint trial is so manifestly prejudicial that the judge is required

[00:02:13] Speaker 02:
to exercise his discretion by severing.

[00:02:17] Speaker 02:
Isn't that the standard?

[00:02:18] Speaker 03:
That is absolutely the standard.

[00:02:20] Speaker 02:
All right.

[00:02:21] Speaker 02:
And the prejudice has to be, based on Lewis, of such magnitude that it would come as a specific trial right or prevent the jury from making a reliable judgment about guilt or innocence.

[00:02:40] Speaker 02:
Right?

[00:02:42] Speaker 02:
So you've got to come up with a specific trial right that you've been prejudiced about, or that the jury was prejudiced from making a reliable judgment.

[00:02:53] Speaker 02:
And then, on Thornmorton, you've got to prove that the prejudice is so clear and so manifest and so undue,

[00:03:03] Speaker 02:
That your client was denied a fair trial.

[00:03:07] Speaker 02:
That's the standard, right?

[00:03:09] Speaker 03:
My client, yes.

[00:03:10] Speaker 03:
My client was denied a fair trial.

[00:03:12] Speaker 02:
All right.

[00:03:12] Speaker 02:
I'm trying to figure out because what's the reason then you're challenging the decision not to sever?

[00:03:21] Speaker 03:
Because there was a violation of due process.

[00:03:23] Speaker 02:
What violation?

[00:03:26] Speaker 03:
Because the trial court

[00:03:28] Speaker 03:
should have granted the severance.

[00:03:31] Speaker 02:
I understand that's your argument but what I now gave you reasons you could come up with to challenge this and now I'm saying come up with one as to what happened here that was wrong.

[00:03:43] Speaker 03:
I will and here they are I'm glad you brought it up judges we're going to skip ahead here.

[00:03:51] Speaker 03:
Our position is that

[00:03:52] Speaker 03:
the district court failed to consider the principles that were set forth in Giroir and Johnson.

[00:04:00] Speaker 03:
And those cases, each in their own way, say that prejudice is established whenever there is a dark specter that is raised over the defendant that

[00:04:11] Speaker 03:
that causes the jury to believe he has a criminal disposition.

[00:04:15] Speaker 02:
But it seems to me that your whole argument is simple.

[00:04:19] Speaker 02:
You say the evidence in the real robbery was stronger

[00:04:24] Speaker 02:
And therefore it lapped over into the other robberies, and that was the prejudice.

[00:04:29] Speaker 02:
That was the bottom line of your argument, right?

[00:04:32] Speaker 03:
Yes, that's the bottom line.

[00:04:34] Speaker 02:
And I have... And now, is that clear?

[00:04:37] Speaker 04:
Sorry.

[00:04:38] Speaker 04:
That means the third of the three robberies when he was... That was the third and the last of the three robberies.

[00:04:43] Speaker 02:
The third and the third.

[00:04:44] Speaker 02:
That's the best you can come up with on prejudice.

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that that evidence is so strong that it laps over.

[00:04:52] Speaker 02:
That's what you're really arguing, right?

[00:04:53] Speaker 03:
That is a spillover effect.

[00:04:55] Speaker 03:
That's exactly what I'm arguing.

[00:04:57] Speaker 02:
And I have the... Well, it's not enough under Zafriro, United States Supreme Court case, that the defendant has a better chance of acquittal because they don't sever.

[00:05:15] Speaker 02:
That's not enough.

[00:05:16] Speaker 02:
In other words, just because your client has a better chance of acquittal if they got to sever, that's not enough reason to sever.

[00:05:23] Speaker 03:
Well, the reason that we're setting forth is that the jury was infected by the testimony.

[00:05:31] Speaker 02:
It was lapped over.

[00:05:33] Speaker 02:
But it isn't enough that your defendant has a better chance of acquittal just because of a severance.

[00:05:40] Speaker 02:
And that seems to me to what you're arguing.

[00:05:42] Speaker 02:
That there was a better chance of acquittal for the first two crimes because they weren't severed.

[00:05:49] Speaker 03:
It's not a better chance of acquittal.

[00:05:51] Speaker 03:
It's a better chance of a fair trial with regard to counts one and two.

[00:05:56] Speaker 03:
In other words, the jury had made up its mind when it heard the damning and damaging evidence.

[00:06:04] Speaker 03:
with regard to the real robbery.

[00:06:06] Speaker 03:
And if I could just set forth what they were faced with considering once they heard all the evidence.

[00:06:13] Speaker 03:
They heard, number one, that the appellant had feloniously robbed a casino.

[00:06:18] Speaker 03:
Number two, that he had, as he was absconding, running away from the casino, he turned and faced his pursuers and said, I'm going to kill you.

[00:06:30] Speaker 03:
You don't want to die for this.

[00:06:32] Speaker 03:
This is not your money.

[00:06:34] Speaker 03:
Number three, he followed up that threat by pulling a gun or attempting to pull a gun out of his waistband to do Lord knows what, but he was swarmed by the security officers.

[00:06:48] Speaker 03:
And that's the only reason that somebody wasn't harmed.

[00:06:54] Speaker 02:
Tell me, why is it that the evidence from this last robbery wouldn't have come in anyway?

[00:07:04] Speaker 02:
to prove the same modus operandi.

[00:07:07] Speaker 03:
I don't think that it would have come in, Your Honor, because... It helped to prove the identity.

[00:07:12] Speaker 02:
It wouldn't... I mean, I looked at it and they're all done the same, and he had better evidence that he did that.

[00:07:21] Speaker 02:
Wouldn't it have helped to prove the identity?

[00:07:23] Speaker 02:
And therefore, it would have come in anyway?

[00:07:26] Speaker 03:
If this court orders that the cases be severed, is our position that that

[00:07:31] Speaker 03:
Those damaging and damning statements would not have come in because, number one, they wouldn't have been relevant.

[00:07:39] Speaker 03:
uh... red rock and the alley anti robberies predated the real rob so they're not relevant relevant and even if it had come in it might be subject to a four or four b exclusion because it is extremely prejudicial our position is let's let's move to another i got your idea i don't want to take my my colleagues time but there's a second thing district court worried about just exactly what you're saying

[00:08:07] Speaker 02:
gave instructions, said you must decide each count separately.

[00:08:13] Speaker 02:
The verdict on one count cannot control the verdict on another count.

[00:08:20] Speaker 02:
You've got to do each one separately.

[00:08:24] Speaker 02:
They went overboard to try to make sure that what you're saying happened did not happen.

[00:08:29] Speaker 02:
I disagree.

[00:08:30] Speaker 03:
I disagree.

[00:08:31] Speaker 02:
Well, that was the district court's jury instructions.

[00:08:34] Speaker 03:
I read them.

[00:08:35] Speaker 03:
If you go back and look at the jury instructions, he said basically one sentence.

[00:08:39] Speaker 03:
It was a pro forma generic separation of counts.

[00:08:43] Speaker 03:
And I'm saying because this testimony.

[00:08:46] Speaker 02:
Well, I read, I can give you the site, but I read you must decide each count separately.

[00:08:53] Speaker 02:
Verdict in one count cannot control the verdict on another count.

[00:08:57] Speaker 04:
Mr. Humphrey, volume five of the excerpt of the records, I think.

[00:09:01] Speaker 02:
Yes.

[00:09:02] Speaker 04:
842 to 843, 842 to 843 summarize exactly what Judge Smith has just represented.

[00:09:09] Speaker 04:
It's a matter of the record that the court instructed as follows.

[00:09:13] Speaker 04:
A separate crime is charged against Mr. Rogers in each count, period.

[00:09:18] Speaker 04:
You must decide each count separately, period.

[00:09:22] Speaker 04:
Your verdict on one count should not control your verdict on any other count, and that's in the record.

[00:09:27] Speaker 04:
And then he proceeded to instruct the jury on the elements of Hobbs Act robbery and the three counts charged against Rogers, and similarly advised the jury, again quoting,

[00:09:37] Speaker 04:
Those are the three separate counts of robbery.

[00:09:40] Speaker 04:
Now, what else would you expect the district court to do?

[00:09:43] Speaker 03:
Well, I'm glad you brought that up.

[00:09:45] Speaker 03:
I was going to bring this up in my rebuttal, but let me bring it up now.

[00:09:48] Speaker 03:
I make a request to this court that I found a case just two days ago as I was getting on the plane that I would like to call to this court's attention.

[00:09:57] Speaker 03:
I understand that... Did you give counsel that... He hasn't seen it yet and I'm happy to give it to him because it goes to the heart of your question.

[00:10:07] Speaker 02:
Well why don't you go on with your argument let's talk about that at another time because I'm not even sure you can get that in now since you haven't said anything about it.

[00:10:17] Speaker 03:
Well that's why I'm asking this court's indulgence because I understand under rule 28J I'm supposed to write a letter and I didn't have time to write the letter.

[00:10:25] Speaker 03:
And I think that it's relevant to this court's decision because it carves out a specific exclusion.

[00:10:31] Speaker 01:
How old is the case that you're referencing?

[00:10:33] Speaker 01:
How old is the case that you're referencing?

[00:10:35] Speaker 01:
Is it a new case?

[00:10:36] Speaker 01:
Is there a reason why you couldn't have found it?

[00:10:38] Speaker 03:
In my continuing efforts to lawyer this case, I continue to research even after the briefs have been filed.

[00:10:46] Speaker 03:
But I'm happy to.

[00:10:49] Speaker 01:
Counsel, continue with your argument.

[00:10:54] Speaker 01:
I actually, let me interrupt you.

[00:10:55] Speaker 01:
I do have questions for you.

[00:10:58] Speaker 01:
You know, my colleague, Judge Smith, mentioned Zafiro.

[00:11:03] Speaker 01:
Do you know that case?

[00:11:03] Speaker 01:
Are you familiar with that?

[00:11:04] Speaker 03:
I've read Zafiro.

[00:11:05] Speaker 01:
OK.

[00:11:06] Speaker 01:
Why is this any different?

[00:11:07] Speaker 01:
You said, we're not looking for acquittals.

[00:11:09] Speaker 01:
But aren't you exactly looking for acquittals?

[00:11:11] Speaker 01:
I mean, at the end of the day, isn't that kind of what you're saying is, look, had they severed this, there's a good chance that my client would not have been found guilty as to two of the robberies, because Rio was where all of the evidence was held.

[00:11:24] Speaker 01:
So what are you looking for?

[00:11:27] Speaker 03:
I'm looking for a fair trial, is what I'm saying.

[00:11:31] Speaker 03:
Not an acquittal.

[00:11:32] Speaker 03:
He's got to stand on his own on those two cases.

[00:11:35] Speaker 03:
If this court suffers, he's not exonerated.

[00:11:38] Speaker 03:
He still has to stand accused of those cases.

[00:11:42] Speaker 03:
But what I'm saying is that the prejudice was so incredibly extreme based upon everything that he did.

[00:11:49] Speaker 03:
And we acknowledge that it's his fault that we're even before this court.

[00:11:54] Speaker 03:
But given that, there

[00:11:56] Speaker 03:
It's fair for us to ask that there not be spillover.

[00:12:00] Speaker 03:
He should be held to account for what happened in the real robbery.

[00:12:03] Speaker 03:
All those statements, all those admissions, all those threats, all those violent acts should come in with respect to the real robbery only.

[00:12:12] Speaker 03:
So we're looking for, you've asked the question, a fair trial to say,

[00:12:16] Speaker 03:
Several these trials the other the statements regard these damaging statements whether they come in or not counsel I'd like you to take it one step further.

[00:12:24] Speaker 01:
Let's assume.

[00:12:24] Speaker 01:
We did sever the trials What are you telling this court would likely have happened with the first two?

[00:12:30] Speaker 01:
Robberies that aren't the real robberies.

[00:12:32] Speaker 03:
It's a jump ball judge because these damaging statements don't come in secondly the Alliant a robbery has very very little evidence So are you telling me you think you would be acquitted?

[00:12:43] Speaker 03:
I'm telling you that would be a question for the jury.

[00:12:47] Speaker 03:
And I'm not trying to be flip.

[00:12:49] Speaker 01:
Absolutely.

[00:12:49] Speaker 01:
But what I'm telling you is it seems like it's a distinction without a difference for Zafiro.

[00:12:53] Speaker 01:
That's why I'm trying to ask you, how is your case different?

[00:12:57] Speaker 01:
What Zafiro says, and I'll quote it to you, it is well settled that a defendant is not entitled to severance merely because he may have a better chance of acquittal in separate trials.

[00:13:07] Speaker 01:
Your client may have had a better chance of acquittal in separate trials.

[00:13:10] Speaker 01:
At least that's what it seems like you may be arguing without saying acquittal.

[00:13:13] Speaker 01:
You keep saying he wants a fair trial.

[00:13:15] Speaker 01:
I get that.

[00:13:15] Speaker 01:
But what I'm trying to tell you is I need you to explain to me why that's different than Zafiro.

[00:13:20] Speaker 03:
Because Zafiro also says, or Johnson says, that when you have

[00:13:26] Speaker 03:
evidence that creates quote-unquote a criminal disposition.

[00:13:30] Speaker 03:
That's what I'm asking this court to focus on.

[00:13:33] Speaker 03:
So Severo and Johnson say specifically that.

[00:13:37] Speaker 03:
My question would be, why would they go that far and say, listen, in this circumstance, we understand it's a high standard.

[00:13:44] Speaker 03:
We get it.

[00:13:45] Speaker 03:
It's a high standard.

[00:13:46] Speaker 03:
And one of the ways in which you could prove your case that there has been manifest prejudice if the defendant has been

[00:13:55] Speaker 03:
through the evidence shown to have a criminal disposition.

[00:13:59] Speaker 03:
In other words, not what he did, but who he is.

[00:14:03] Speaker 03:
And that is a part of the opinion as well.

[00:14:06] Speaker 03:
That's a part of the Johnson opinion as well.

[00:14:08] Speaker 03:
So you're saying if they're great against each other,

[00:14:10] Speaker 03:
I mean, I can't justify or rationalize that, but I'm asking this court not to ignore that, because that is a part of the opinion where the court says, listen, if there's been a criminal disposition that has been established by the government, and they have been very successful in establishing his criminal disposition.

[00:14:31] Speaker 01:
Then let me give this back to you.

[00:14:32] Speaker 01:
I mean, I think my colleagues have made it clear here that one of the things the court did do to try to avoid that is say, each case has to stand on its own.

[00:14:40] Speaker 03:
Each count, yes.

[00:14:40] Speaker 01:
Each count, sorry.

[00:14:41] Speaker 01:
Thank you.

[00:14:41] Speaker 01:
Each count has to stand on its own.

[00:14:43] Speaker 03:
Which leads me to the opinion, may I?

[00:14:46] Speaker 01:
We're not going to entertain that right now, that we have procedures here in the Ninth Circuit for you to provide those sorts of cases.

[00:14:50] Speaker 01:
All right, then.

[00:14:51] Speaker 01:
If it was a brand new case, I would say go ahead, but it's not.

[00:14:54] Speaker 03:
OK.

[00:14:55] Speaker 03:
So let me just talk a little bit about the substantially similar problem, because that's what the district court based its decision to join on.

[00:15:06] Speaker 03:
and the substantially similar prong I would submit to you has not been met.

[00:15:10] Speaker 02:
First of all... But now, just a minute.

[00:15:12] Speaker 02:
You just told me that you're not challenging the jointer.

[00:15:16] Speaker 02:
The only thing you're challenging is the failure to sever.

[00:15:22] Speaker 02:
So we can't go back and talk about Joinder now if you're not going to challenge the Joinder.

[00:15:27] Speaker 02:
Because the Joinder is under eight, rule eight.

[00:15:31] Speaker 02:
Right.

[00:15:31] Speaker 02:
The severance is under rule 14.

[00:15:33] Speaker 02:
And your severance, you told me, you were very straight.

[00:15:37] Speaker 02:
We're under, we do not believe that they should have not severed.

[00:15:42] Speaker 02:
That's a rule 14 motion.

[00:15:44] Speaker 02:
It's an abuse of discretion standard to review.

[00:15:48] Speaker 02:
So don't go back and talk about Joinder now in your argument.

[00:15:51] Speaker 02:
You haven't got that much time left.

[00:15:53] Speaker 03:
Well, I think you said that my position is we should not have severed.

[00:15:59] Speaker 03:
They should not have severed.

[00:16:00] Speaker 02:
My position is they should have severed.

[00:16:02] Speaker 02:
I know you did say that.

[00:16:05] Speaker 02:
Okay, under an abuse of discretion standard, generally if it's the judge who has to make those decisions and it's all under

[00:16:15] Speaker 02:
the kind of considerations that are laid out in Johnson.

[00:16:21] Speaker 02:
If I'm going to suggest that that DJ has abused his discretion or her discretion in the failure to sever, I need a case that says based on those same circumstances, they should have severed.

[00:16:41] Speaker 02:
I looked all over for that case.

[00:16:44] Speaker 02:
Couldn't find it and that's why I have you got a case I could only refer this court once again to Juara and Johnson Okay, if your best one is Johnson, then that's all that's all I want to know because the bottom line is Under an abuse of discretion standard you got a tough hill right if you don't have a case, right?

[00:17:07] Speaker 03:
All right well

[00:17:10] Speaker 04:
I can if I can just follow one thing I think my colleagues will just print for a few seconds this case was not totally just about the events of the third and last robbery when he was apprehended I mean because you had the testimony of his brother and his close friend and you've your your brief also attacked the

[00:17:32] Speaker 04:
Coercion, the suggestive coercion by the government in presenting those witnesses and that had to do with photos of a truck used in the first robbery and other matters.

[00:17:42] Speaker 04:
Clearly the evidence in the third and last robbery was significant, but that was not the only evidence presented by the government.

[00:17:48] Speaker 03:
There was certainly lots of other evidence.

[00:17:50] Speaker 03:
I'm going to submit on that because I didn't even bring up the suppression even though I argued in the brief or the jury instructions.

[00:17:59] Speaker 03:
We're going to submit on that.

[00:18:00] Speaker 03:
We're planting our flag on the fact that this case should have been severed because of the evidence that came in in the real robbery.

[00:18:09] Speaker 03:
Thank you for your time.

[00:18:10] Speaker 01:
Thank you, Mr. Humphrey.

[00:18:22] Speaker 00:
Good morning, Your Honor.

[00:18:23] Speaker 00:
May it please the court?

[00:18:25] Speaker 00:
David Keebler on behalf of the United States.

[00:18:29] Speaker 00:
Severing these trials wouldn't have changed anything.

[00:18:33] Speaker 00:
As you brought up, Judge Smith with 404B, evidence of each of these robberies would have come in in three separate trials.

[00:18:45] Speaker 00:
This is the same modus operandi in each of these three cases.

[00:18:49] Speaker 00:
It's a single robber.

[00:18:50] Speaker 02:
And it would have been invented to prove identity, correct?

[00:18:54] Speaker 00:
Correct, Your Honor, because that is the only element that was really challenged in this case.

[00:19:00] Speaker 02:
I was going to say, identity was the element that counsel challenged, right?

[00:19:05] Speaker 02:
Correct, Your Honor.

[00:19:05] Speaker 02:
So the only reason it would have come in is under identity.

[00:19:09] Speaker 02:
So it would have come in, if at all, to prove identity.

[00:19:14] Speaker 00:
Yes, your honor, because the robberies were captured on videotape and the victims of the robberies testified.

[00:19:20] Speaker 00:
So there was no doubt that the robberies occurred.

[00:19:24] Speaker 00:
The only question the jury had to answer was, is this the same person?

[00:19:29] Speaker 00:
Is this the defendant Rogers?

[00:19:31] Speaker 00:
Even if we take a step aside from 404B, there was no prejudicial joiner in the first place under rule 14.

[00:19:41] Speaker 00:
rule eight eight eight rule eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight eight

[00:20:05] Speaker 00:
So under Rule 14... This is where we're clear.

[00:20:07] Speaker 04:
Rule 8A provides, with respect to appropriate joiner of defendants, as to which, as Judge Smith noted, it doesn't appear to have been an initial challenge.

[00:20:16] Speaker 04:
It's a common scheme or plan.

[00:20:18] Speaker 04:
It doesn't mention identity.

[00:20:19] Speaker 04:
It says a common scheme or plan.

[00:20:21] Speaker 04:
That was the basis of the joiner of these... I'm sorry, in terms of the... The joiner of the counts had to do with offenses charged in a common scheme or plan, correct?

[00:20:33] Speaker 00:
Correct, Your Honor.

[00:20:34] Speaker 00:
And that wasn't as we raised it.

[00:20:36] Speaker 04:
And then Rule 14 then applies in terms of whether or not he was prejudiced by that jointer.

[00:20:40] Speaker 00:
Correct, yes.

[00:20:41] Speaker 00:
Prejudiced by that jointer and therefore should have severed.

[00:20:45] Speaker 00:
There are a couple different things this Court's already mentioned.

[00:20:48] Speaker 00:
The jury instructions, that compartmentalization of evidence for the jury.

[00:20:53] Speaker 00:
that the judge gave that remedy to any prejudice.

[00:20:58] Speaker 00:
Additionally, in this case, what this court is most concerned with when you're looking at failure to sever is if there's a spillover.

[00:21:07] Speaker 00:
You've referenced that.

[00:21:08] Speaker 02:
Well, that's his argument.

[00:21:10] Speaker 02:
That's his argument, the spillover.

[00:21:12] Speaker 00:
Yes, Your Honor.

[00:21:13] Speaker 02:
From the third crime.

[00:21:14] Speaker 00:
Right.

[00:21:15] Speaker 00:
Looking at everything through the lens of the third crime and then just having a spillover to what counsel called criminal disposition.

[00:21:22] Speaker 00:
It's not a criminal disposition case.

[00:21:24] Speaker 00:
This is a simple robbery case.

[00:21:26] Speaker 00:
These robberies were all presented very simply in siloed manner.

[00:21:31] Speaker 00:
Each witness, each victim from the casinos presented their evidence.

[00:21:36] Speaker 00:
These robberies occurred at three separate casinos on three separate days and had separate victims.

[00:21:42] Speaker 00:
So you have witnesses testifying about each of those and then the case detective testifying about the, you know, what evidence overlapped and comparing.

[00:21:53] Speaker 04:
And count four was a non-24C charge related to the third and last robbery.

[00:21:57] Speaker 00:
Correct, Your Honor.

[00:21:58] Speaker 00:
So it was derivative of the third and last robbery.

[00:22:02] Speaker 00:
But because of the way

[00:22:03] Speaker 00:
that the government presented the case, that is an independent reason to not find prejudicial joiner.

[00:22:12] Speaker 00:
Additionally, the judge's jury instructions clearly said separate these things.

[00:22:17] Speaker 00:
These are different counts.

[00:22:19] Speaker 00:
One, you can find them guilty on one, essentially, but that doesn't mean you have to find them guilty on all.

[00:22:23] Speaker 00:
This is not an all or nothing case.

[00:22:26] Speaker 00:
Juries are presumed to follow district court's jury instructions, and in fact,

[00:22:31] Speaker 00:
Those are pattern jury instructions from the Ninth Circuit.

[00:22:35] Speaker 00:
So any potential prejudice is further mitigated by that point.

[00:22:42] Speaker 00:
So you have multiple different ways that there was no prejudice.

[00:22:48] Speaker 00:
The instructions, the evidence, as well as the fact that even if we can separate all three of these trials, we still got 404B and everything's coming in that way, given the way

[00:23:00] Speaker 02:
Can I interrupt you?

[00:23:01] Speaker 02:
Because we've kind of gone through this quite a bit.

[00:23:04] Speaker 02:
And he's kind of submitted the rest.

[00:23:05] Speaker 02:
So maybe I shouldn't ask the question.

[00:23:08] Speaker 02:
My worry was, did the district court correctly decline to instruct the jury on attempted robbery?

[00:23:15] Speaker 00:
Yes, Your Honor.

[00:23:17] Speaker 00:
And that is the difference between robbery and attempted robbery is taking versus intending to take.

[00:23:30] Speaker 00:
The evidence in this case was that the appellant, Rogers, jumped over a barrier, snatched money out of a cash register door in a casino sports book.

[00:23:45] Speaker 02:
Okay, I got your argument about the evidence.

[00:23:49] Speaker 02:
But I look for a case that suggests that this is a lesser included offense.

[00:23:57] Speaker 02:
And I couldn't find it.

[00:23:59] Speaker 02:
So I said to myself, was the district court required then to give this instruction because there was no case suggesting it was a lesser included offense?

[00:24:12] Speaker 00:
No, Your Honor.

[00:24:13] Speaker 00:
The district court is not required to give a instruction on a lesser included offense where a rational jury cannot convict the defendant of the lesser included offense without finding an element that would convert the lesser to the greater.

[00:24:29] Speaker 00:
In this case, it's the taking versus intending to take.

[00:24:33] Speaker 00:
The taking occurred.

[00:24:35] Speaker 00:
He's running out of the casino.

[00:24:36] Speaker 04:
He leaves the casino.

[00:24:37] Speaker 04:
He's out in the parking lot.

[00:24:38] Speaker 00:
Correct.

[00:24:39] Speaker 00:
He's running to his car, and he's stopped.

[00:24:42] Speaker 00:
This is in video.

[00:24:43] Speaker 00:
This is in the record.

[00:24:45] Speaker 00:
So he has moved the object, taken it, has physical control of it, and is attempting to escape when he's stopped.

[00:24:56] Speaker 04:
I mean, the standard, I think, is

[00:24:57] Speaker 04:
This court, I think in the Art case, AR&T if I'm pronouncing it correctly, is held that if the evidence would permit a jury rationally to find the defendant guilty of the lesser offense and acquit him of the greater.

[00:25:11] Speaker 04:
And your argument is no rational jury could find that he attempted to but did not commit the Hobzack robbery when he seizes the money, runs out of the casino, and is found out in the parking lot, which is technically within the curtilage of the casino.

[00:25:26] Speaker 04:
to use old property law phrases and that's really the thrust of what appears the defendant was arguing that he was in the curtilage of the casino but not actually in the casino and they might perhaps have been able to convict him of a lesser offense and the position of the government obviously is is that no rational jury could find him guilty of this lesser offense and acquit him of the greater offense and that your attempted robbery when you're out there in the parking lot with the money in your hands as opposed to having actually committed the robbery.

[00:25:53] Speaker 04:
I mean, that's when it comes to a nutshell, I think, is it not?

[00:25:57] Speaker 00:
Yes, Your Honor, and it would create sort of absurd results if we did this curtilage, because how far does the curtilage extend to how, you know, what if he just went up to his hotel room?

[00:26:06] Speaker 00:
All these casinos.

[00:26:07] Speaker 04:
Well, I guess just in fairness, just hypothetically to show my view of how there's no way that there should have been a lesser included offense instruction, but I mean, perhaps if he goes to the counter, goes to seize the money,

[00:26:21] Speaker 04:
grabs the money, somebody pulls the money back from him and he has a panic attack and runs out, so to speak.

[00:26:26] Speaker 04:
Then perhaps on those facts, it might be that a lesser included offense would be you attempted to perform the robbery and took a substantial step in that direction but did not complete it.

[00:26:39] Speaker 04:
That might have borne fruit.

[00:26:40] Speaker 04:
So that's how you would, the two hypotheticals would explain the lack of any validity of that argument in this case, it seems.

[00:26:48] Speaker 00:
Yes, your honor.

[00:26:49] Speaker 00:
I think you're the case that you bring up would be a much closer call.

[00:26:52] Speaker 00:
Sure.

[00:26:53] Speaker 04:
But when I first looked at the case, I thought, well, how far did he go with it?

[00:26:56] Speaker 04:
And he obviously was apprehended with the money and they caught him, but they didn't catch him just standing there at the counter with you just took two steps.

[00:27:03] Speaker 04:
He literally ran out of the building essentially and was, but he was still technically on the curtilage in the parking lot when he was finally apprehended after.

[00:27:10] Speaker 00:
a rather dangerous event occurred, you know, because Las Vegas casinos occupy large spaces, so you can still be on the property and be very far away from the place you stole the money from.

[00:27:22] Speaker 00:
And that's what happened here because the evidence in the trial shows the robbery and then shows the flight from the robbery and shows

[00:27:30] Speaker 00:
the defendant, the appellant running through the parking lot and eventually being apprehended.

[00:27:35] Speaker 00:
So this is not one of those factual close calls where a judge could look at the evidence and say, well, maybe they would convict him on the lesser included, but not the... Again, the standard being whether a jury could rationally find him guilty of the lesser offense and actually acquit him of the more serious offense.

[00:27:51] Speaker 00:
Correct your honor and perhaps a rational jury could in that that Emotional have an emotional moment give the money back or stroke out or something like that, but this is not that circumstance I Have nothing further If the court has nothing further I would just submit on our brief and state and ask the court to affirm the trial court and the jury's verdict in this case Thank you your honor.

[00:28:20] Speaker 01:
Thank you counsel

[00:28:23] Speaker 01:
All right.

[00:28:23] Speaker 01:
I'd like to thank both counsel.

[00:28:26] Speaker 01:
This matter is now submitted.

[00:28:29] Speaker 01:
You want?

[00:28:29] Speaker 02:
I know.

[00:28:30] Speaker 02:
He wanted another.

[00:28:32] Speaker 01:
I think he can give a few minutes.

[00:28:34] Speaker 01:
Yeah.

[00:28:34] Speaker 01:
Yeah, we'll give you a few minutes.

[00:28:36] Speaker 04:
I think Mr. Puppey can give a few minutes.

[00:28:37] Speaker 04:
We can, sure.

[00:28:38] Speaker 04:
All right.

[00:28:39] Speaker 01:
Since you didn't ask, I wasn't sure if you were wanting it.

[00:28:42] Speaker 01:
But we'll give you two more minutes.

[00:28:44] Speaker 03:
Well, I'm just going to submit.

[00:28:48] Speaker 03:
But what I would really like is for the court

[00:28:53] Speaker 03:
reconsider the cases that I found.

[00:28:57] Speaker 03:
I'm happy to give him as much time as the court wants to give him.

[00:29:00] Speaker 03:
I think it's relevant to the issues raised by this case.

[00:29:03] Speaker 02:
Can I just... Have you looked at the rules to see how you do that kind of stuff?

[00:29:08] Speaker 02:
28 J says I'm supposed to do a certified letter I didn't have time to do it and that's why I'm Well and the case and you told my good colleague that the case is not new It's a case that's been in the record for many years.

[00:29:23] Speaker 02:
So I I really think you're kind of

[00:29:25] Speaker 02:
Stuck on this particular case.

[00:29:28] Speaker 02:
I mean if counsel wants to give you a full opportunity You can talk about it, and he'll be able to brief it thereafter, but I don't think it's really worth your while all right Thank you very much for your time.

[00:29:39] Speaker 01:
Thank you Okay, I'd like to thank both counsel on this matter.

[00:29:43] Speaker 01:
We appreciate your arguments and that concludes our arguments for this morning Thanks again to everyone including our court staff for all their wonderful help the court will now stand in recess I