[00:00:08] Speaker 04: Good morning and may it please the court, Rachel Robinson for defendant and appellant Irina Sadowsky. [00:00:13] Speaker 04: I'd like to reserve three minutes for rebuttal. [00:00:17] Speaker 04: With the court's permission, I'll first address the indictment issue and then I'll turn to the loss calculation in count five unless the court has other questions. [00:00:26] Speaker 04: I'd like to start with first principles here. [00:00:29] Speaker 04: This was a weak case built on the testimony of a serial fraudster, Yegal Karen, who repeatedly referred to Ms. [00:00:36] Speaker 04: Sadowski as a sucker, a fool, someone who knew nothing of his criminal scheme, until he was advised that it was in his interest to change his story. [00:00:47] Speaker 04: Only the Allen instruction, followed by the indictment, got the jury over the finish line to the compromised verdict here. [00:00:55] Speaker 04: And this court has long held that a district court's generally broad discretion to interact with the jury significantly limits... Do we have to conclude with regard to the indictment? [00:01:07] Speaker 03: You said only the indictment pushed him over the line. [00:01:10] Speaker 03: Do we have to include that that's... What is the standard? [00:01:13] Speaker 03: Do we have to include that that is true? [00:01:16] Speaker 03: That the indictment must have pushed him over the line? [00:01:19] Speaker 03: That the indictment likely pushed him over the line? [00:01:21] Speaker 03: That it's possible that the indictment pushed him over the line? [00:01:23] Speaker 03: What do we have to conclude? [00:01:24] Speaker 04: Sure. [00:01:24] Speaker 04: So I would point the court to the Sewell analysis where the district, or where this court, excuse me, found that a second Allen charge requires per se reversal. [00:01:35] Speaker 03: I believe that this is akin to a second Allen charge and in some ways even more coercive because... So if it's like, so it's, you know, if you do this then for sure, what if it, what if we conclude it's less than that? [00:01:46] Speaker 03: What would be the standard then? [00:01:47] Speaker 03: Would it be that it's possible that [00:01:49] Speaker 03: indictment change the outcome or would it be that we need to show this more likely than not? [00:01:54] Speaker 04: Under Sullivan this court presumes prejudice and then the court would look to the totality of the circumstances to determine whether or not the government can overcome that presumption. [00:02:04] Speaker 04: But I think here, Ms. [00:02:06] Speaker 04: Sadowsky did not rest on a presumption of prejudice. [00:02:09] Speaker 04: She attempted to show actual coercion through the declaration of a holdout juror. [00:02:16] Speaker 04: And I think that highlights the wisdom of this court's opinion in Sewell that a per se rule requiring reversal is required here. [00:02:24] Speaker 04: Because Ms. [00:02:25] Speaker 04: Sadowsky came up against those insurmountable hurdles in proving actual coercion that this court specifically [00:02:33] Speaker 04: addressed in Sewell. [00:02:35] Speaker 04: And unlike a second Allen charge, which reminds the jury not to let go of an honestly held belief here, providing the enlightenment, was done without any reminder that the jury should not let go of an honestly held belief. [00:02:51] Speaker 04: Instead, it invited the jury [00:02:53] Speaker 04: to reconsider the government's theory of the case and cross-reference that theory with the evidence at trial to the exclusion of Ms. [00:03:01] Speaker 04: Sadowsky's theory of the case and evidence at trial. [00:03:05] Speaker 04: The jury did just that and it reached the... So what could have been done here? [00:03:11] Speaker 02: I mean, is there anything that... Is it just sending the indictment in that was problematic or, I mean, could the judge have done that in combination with something else? [00:03:23] Speaker 02: given a countervailing position on what the defense was or... I think that after the Allen instruction was given, the judge should not have, the district court should not have... Anything at that point was error. [00:03:37] Speaker 02: That's right. [00:03:38] Speaker 02: There was nothing he could have done, he couldn't have given any limiting instruction that would have gone along with it. [00:03:43] Speaker 04: I believe that that's right. [00:03:45] Speaker 04: And this court's holding... What if the jury asks a question? [00:03:49] Speaker 01: Are you saying the judge can't respond to a written question from the jury after the Allen charge? [00:03:54] Speaker 04: I believe after the Allen charge, the judge would be extraordinarily limited in what response he could give to the jury at that point because at that point any further interactions is presumptively coercive. [00:04:08] Speaker 03: I mean, do we need to conclude that anything after in this case or do we seem to conclude that the absence of a limiting instruct? [00:04:15] Speaker 03: In other words, we don't have a case in front of us that has a giving an indictment and a really, really good limiting instruction along with the indictment saying, hey, hey, hey, I know I just gave you an island charge last night but do not use this indictment. [00:04:30] Speaker 04: I think that's right. [00:04:31] Speaker 04: I think that the court doesn't need to consider what limiting instruction would have been appropriate here because none was given when the indictment was provided to the jury. [00:04:40] Speaker 03: In the timeline, can you walk through it? [00:04:42] Speaker 03: So the timeline was it went to the jury. [00:04:44] Speaker 03: The jury had told them the night before that they were deadlocked. [00:04:47] Speaker 03: That's right. [00:04:49] Speaker 03: There was a limiting instruction given when the court figured out what had happened, but that was after the jury had come back and said we're only deadlocked on one [00:04:57] Speaker 04: That's correct. [00:04:58] Speaker 04: So the jury came back at 9 AM the next morning. [00:05:03] Speaker 04: It looks like from the emails that around 10, 1009 is when the indictment went back to the jury. [00:05:09] Speaker 04: But even assuming it was at 9 AM, by 1115, there was the follow on note saying we are only deadlocked as to one count. [00:05:16] Speaker 04: So it was likely less than an hour that the jury deliberated once it had the indictment. [00:05:22] Speaker 04: At the longest, it was two hours. [00:05:26] Speaker 04: And so, and then the judge did not give the limiting instruction that the indictment was not evidence again until after it received that second note that the jury was only deadlocked as to the one count. [00:05:39] Speaker 03: So even if that instruction was appropriate and we would argue that that was- That was because defense counsel at that point realized, wait, we sent the indictment and it was never sent earlier. [00:05:49] Speaker 04: That's correct. [00:05:50] Speaker 03: And so asked for that limiting instruction. [00:05:52] Speaker 04: That's correct. [00:05:53] Speaker 04: And it's important here to note that the district court who oversaw this case was not the district court who provided the indictment. [00:06:00] Speaker 04: And the district court who understood the evidence had declined to refer the jury to the indictment when the jury was asking for guidance as to how to resolve some of its confusion for the evidence underlying the counts of conviction. [00:06:14] Speaker 04: The district court recognized and acknowledged that the indictment was, excuse me, just the government's version of the case. [00:06:23] Speaker 04: And critically, the district court recognized that there were allegations in the indictment that he was not sure were proven at trial. [00:06:31] Speaker 04: I imagine that if that district court had been there on that last day of deliberation, the indictment would never have gone back at that point. [00:06:38] Speaker 03: Or with a really strong. [00:06:39] Speaker 04: Right, or with a really strong limiting instruction, we had neither. [00:06:45] Speaker 04: It would be a more uphill battle, I imagine, at that point. [00:06:50] Speaker 04: But the indictment was provided with no indication as to how the jury should use it. [00:06:54] Speaker 04: And unless the court has other questions about that, we would ask that you reverse on that ground. [00:07:02] Speaker 04: And I turn to the loss calculation in count five. [00:07:07] Speaker 02: And to be clear, if we agreed with you on that, that would not end the case. [00:07:15] Speaker 02: We'd still have to decide these other issues. [00:07:19] Speaker 03: If we agree with you on that, we'd just be sending it, we'd be? [00:07:21] Speaker 04: We would be asking for a reversal for a retrial. [00:07:24] Speaker 03: Retrial, right. [00:07:25] Speaker 03: Okay, got it. [00:07:26] Speaker 04: Yes, and so count five is if the court reaches the sentencing issue, which we would ask that it doesn't and reverse on the indictment issue. [00:07:36] Speaker 04: But Ms. [00:07:36] Speaker 04: Sadowsky, because count one and count five grouped, she was sentenced under the fraud guideline, the former fraud guideline, to be 1.1. [00:07:44] Speaker 04: And as this court stated in Boramo in January of this year, loss as used in to be 1.1 [00:07:53] Speaker 04: is not so ambiguous as to allow for a gain that does not approximate the victim's loss. [00:07:58] Speaker 04: The court said something similar in Abu Amo in December. [00:08:01] Speaker 04: That loss cannot mean gain. [00:08:03] Speaker 04: It has to be associated with an approximation of a victim's loss. [00:08:08] Speaker 04: Here, count one was the conspiracy to commit Medicare and Medi-Cal fraud. [00:08:12] Speaker 04: Medicare and Medi-Cal were the two identified victims. [00:08:15] Speaker 04: The district court calculated all loss as to those victims in count one. [00:08:20] Speaker 04: Count five was the distribution count, and the district court [00:08:24] Speaker 04: misunderstood or misapplied loss in that count when it calculated loss as the fair market value of the drugs. [00:08:32] Speaker 04: That is a calculation based on intended ill-gotten gain. [00:08:36] Speaker 04: And under the guideline which Ms. [00:08:39] Speaker 04: Titovsky was sentenced, that was a misunderstanding of the guideline and that as well requires a reversal for re-sentencing. [00:08:48] Speaker 01: Your view it should have been measured how? [00:08:51] Speaker 04: I believe that there was no loss associated with count five because all of the loss to the only two victims was calculated in count one and the counts grouped and both probation and the district court used the fraud guideline to calculate the sentence here. [00:09:07] Speaker 01: Could you have intended loss or something? [00:09:10] Speaker 04: There still was no intended loss because there was no intended pecuniary harm associated with count five as to Medicare and Medi-Cal, the two victims. [00:09:19] Speaker 04: All actual and intended loss was calculated in count one, the Medicare fraud count. [00:09:26] Speaker 04: So the distribution count. [00:09:28] Speaker 04: just involve, not just, but the distribution count involved taking those prescription drugs associated with count one and attempting to sell them on the black market. [00:09:39] Speaker 04: So there was all lost to the two victims was calculated in count one. [00:09:51] Speaker 04: If the court doesn't have any other questions, I'll reserve the rest of my time for rebuttal. [00:09:55] Speaker 04: Thank you. [00:09:55] Speaker 04: Thank you. [00:10:08] Speaker 00: Good morning, Your Honors, and may it please the court, Javier Sinha on behalf of the United States. [00:10:13] Speaker 00: I'd like to begin with count one. [00:10:16] Speaker 03: We think that... Can I ask you, you know, about the Allen charge then the indictment. [00:10:21] Speaker 03: I'm trying to figure out what standard we should apply here and I think their preferred standard is per se error and I assume that you agree. [00:10:32] Speaker 03: No, I assume you don't agree. [00:10:33] Speaker 03: So assuming that that's not the standard per se error, [00:10:36] Speaker 03: then the next standard is seen would be some sort of presumption of, the next thing that would be most favorable to their client would be some sort of presumption but the government could rebut the presumption. [00:10:48] Speaker 03: And then the next standard would be that they need to show something, the problem with the last standard, the lowest one is, [00:10:55] Speaker 03: I mean, they actually tried in this case, right? [00:10:58] Speaker 03: And they have an affidavit and you can't, the rules don't allow it. [00:11:01] Speaker 03: So it seems harsh and a bit of a classic catch-22 to require the last standard. [00:11:08] Speaker 03: So can you maybe tell me what standard you think is the right one, what your backup standard is and why there isn't this catch-22 problem if you go with the standard I think you want us to accept. [00:11:20] Speaker 00: So this court's cases say what it looks at is the totality of the circumstances to see if there was improper coercion. [00:11:25] Speaker 00: It doesn't necessarily say where the burden lies. [00:11:28] Speaker 00: And on a rule of therapy motion, the burden usually lies on the defendant. [00:11:30] Speaker 03: But the problem with the totality of the circumstances is we don't get to know the totality of the circumstances and the evidentiary rules don't let us see some of those circumstances. [00:11:39] Speaker 03: So if there isn't at least some presumption, maybe not a per se, but presumption, how can anybody ever win? [00:11:45] Speaker 03: That's what's getting me. [00:11:47] Speaker 03: How could anybody ever show prejudice, I guess? [00:11:50] Speaker 00: I think you show prejudice by showing the facts in the record show there was coercion. [00:11:53] Speaker 00: So you still need to show coercion. [00:11:55] Speaker 00: We have to use the facts in the record that are properly in the record to show it. [00:11:58] Speaker 00: And defendants have one. [00:12:00] Speaker 00: We list in our brief certain factors courts look at when they're determining coercion. [00:12:04] Speaker 00: One of them is how long after, usually an hour in charge of the jury deliberates. [00:12:09] Speaker 00: Another is the jury instructions here. [00:12:10] Speaker 00: Another is what is the verdict. [00:12:12] Speaker 00: In this case... [00:12:13] Speaker 03: Doesn't help you here right because it was pretty quick. [00:12:16] Speaker 03: It was two hours or one hour from I mean I know when you're in the briefing I think you talked about a longer timeline because you went from when it was sent to when the case ended but from the time to when they Presumably make went from a hung jury on more to not being a hung jury on them on the on the Things that matter here because they remained a home jury on the last one [00:12:37] Speaker 03: was two hours? [00:12:38] Speaker 03: Do you disagree with that timeline? [00:12:40] Speaker 00: You disagree with that, Your Honor. [00:12:41] Speaker 00: There's no record in the evidence of what the jury was hung on when they sent their first note saying we're deadlocked. [00:12:48] Speaker 03: OK, so I see your point. [00:12:50] Speaker 03: They could have been hung on one and then switched. [00:12:53] Speaker 03: But that seems kind of, you know, they were hung on more than one. [00:12:55] Speaker 03: Then they went from, they got the indictment. [00:12:59] Speaker 03: Now they're only hung on, they come back and say two hours later, or most two hours later, and say they're only hung on one. [00:13:05] Speaker 03: They remain hung on one. [00:13:07] Speaker 03: It seems likely that the one that they were hung on was the same one that they remained hung on to the very end. [00:13:11] Speaker 00: In their first note, they never say we were hung on more than one. [00:13:15] Speaker 00: They say we are deadlocked. [00:13:16] Speaker 00: And the second note says we're deadlocked on only one count. [00:13:18] Speaker 00: But we don't know how many that are deadlocked on. [00:13:22] Speaker 03: But it seems kind of weird to come back and say, okay, we're still deadlocked on one count and not say we're deadlocked on one count earlier. [00:13:28] Speaker 00: We just don't know what was happening. [00:13:30] Speaker 03: To the extent that, I guess what I'm getting at is to the extent that it's, [00:13:36] Speaker 03: to the extent that they have to show some sort of evidentiary showing, whatever that standard is. [00:13:41] Speaker 03: This seems to be that case. [00:13:43] Speaker 03: That's what I'm struggling with. [00:13:44] Speaker 03: This seems to be that case. [00:13:45] Speaker 03: You've got a shorter time frame. [00:13:47] Speaker 03: You know, unless you take a whole bunch of inferences in favor of the government and really bend over backwards, it seems like there's a pretty strong, and that's ignoring the fact that a juror actually has told us that they were changed by this, which, you know, none of us are considering, right? [00:14:06] Speaker 03: When could they ever win if they couldn't win in this case? [00:14:09] Speaker 03: Like, ever show it? [00:14:09] Speaker 00: Well, I think this case is not actually as strong as you make it out to be. [00:14:12] Speaker 00: And I'd like to tell you why, I think, using the facts here. [00:14:15] Speaker 00: So first, even if it was only two hours, we think it was four hours, because we simply don't know what they were hung on. [00:14:20] Speaker 00: But the jury got the indictment around, assuming, 10 o'clock. [00:14:23] Speaker 00: They still deliberated until 2 o'clock. [00:14:27] Speaker 00: So that's four hours until they finally finished deliberating. [00:14:30] Speaker 00: We know during that time what they were doing was reviewing evidence. [00:14:33] Speaker 00: So they weren't just coercion to decide on the case. [00:14:36] Speaker 00: The jury four person came out into open court and said, we've been reviewing the evidence. [00:14:40] Speaker 00: We're going to keep reviewing the evidence. [00:14:42] Speaker 00: And their very next note after saying we're hung on one count. [00:14:44] Speaker 03: To say whether or not we're reviewing the evidence alongside the [00:14:48] Speaker 03: Indictment that we got that we think is really important. [00:14:50] Speaker 03: Otherwise, why would you have given it to us at this moment? [00:14:53] Speaker 00: They didn't say that but of course the court told them then as Sadowski asked for the curative instruction that Indictments are not evidence. [00:15:00] Speaker 00: They don't prove anything. [00:15:01] Speaker 00: So the jury was told again indictment They've been told this twice before they were told again the indictment doesn't prove anything. [00:15:06] Speaker 03: It's not evidence at that point. [00:15:08] Speaker 03: We already know that they were They were only hung on one one. [00:15:14] Speaker 03: They were only deadlocked hung on one [00:15:16] Speaker 03: By then now you're saying we don't know could be a different you know we simply don't know and I know that they that they had that they had narrowed down to only being deadlocked on one and we know before they got the curative instruction we know that right I'm not sure we do that they just said in the first and it was technically a second jury note but the first about them being deadlocked they said we are deadlocked we want to know what to do next it's all they said is we are deadlocked they also came back and said we are only deadlocked on one now [00:15:40] Speaker 03: And that was before they got the curative instruction but after they had gotten the indictment that's correct We simply don't know if they're deadlocked on totally different counts on just one count on multiple counts It's just the jury's a black box in this case and so all we know is they were deadlocked before if what it takes So if if it takes something more than the evidence that they we have in this case whatever that standard is Wouldn't they have to come back and say that indictment was really helpful. [00:16:04] Speaker 03: Thank you your honor. [00:16:06] Speaker 03: It really helped [00:16:07] Speaker 03: us decide this and we moved from being hung on more counts to one count. [00:16:11] Speaker 03: Is that what would be required? [00:16:13] Speaker 03: We don't need that much. [00:16:17] Speaker 00: I point this court to what this court said before. [00:16:18] Speaker 00: It's things like the form of the jury charge, any period of instruction, the time between getting sort of the charge or whatever they think is coercive, and then deciding. [00:16:26] Speaker 00: So here the court gave the period of instruction that Sotowski asked for, which is that the indictment is not [00:16:33] Speaker 03: After they had moved to being only deadlocked on one issue which they remain deadlocked on one issue all the way till the end so effectively after they had decided everything that was decided in this case [00:16:45] Speaker 00: Even after they got that creative instruction, they deliberated, which, again, was the one that Sadowski asked for. [00:16:49] Speaker 00: She could have asked for something different and she didn't. [00:16:51] Speaker 00: They kept deliberating then for about two hours. [00:16:53] Speaker 00: And their very next jury note was, can we get testimony from a defense witness about a certain issue? [00:16:58] Speaker 00: And so we know that they were still reviewing the evidence closely, though. [00:17:01] Speaker 00: They weren't just sort of coerced into making decisions. [00:17:03] Speaker 00: They were still reviewing the evidence. [00:17:04] Speaker 00: I think the split verdict here is also pretty good evidence that they weren't coerced. [00:17:08] Speaker 00: The fact that the jury found Tadowsky not guilty on 10 counts shows they weren't coerced into finding her guilty and the fact that they hung on one count shows they weren't coerced into teaching her verdict at all. [00:17:18] Speaker 03: The problem I have with that argument is the other way that evidence cuts or that argument cuts is that it means that the jury found this to be a tough close case and so, [00:17:31] Speaker 03: If you think that it could mean that, and I don't know how you could argue that it couldn't mean that, I don't know if it does, then all the more so, something like an indictment that just shows up on the second or third day of trial might have more so, and if it's a super easy case, maybe an indictment wouldn't have affected the outcome, but it seems like if it was a hard case, maybe it did. [00:17:55] Speaker 00: We don't know what the jury thought about this case. [00:17:57] Speaker 00: We know what their verdict was, and we know they had time to deliberate here. [00:18:01] Speaker 00: But I think it'd be a different case if the jury was never told anything about the indictment. [00:18:04] Speaker 00: But they were told both before and after the indictment went to them, this isn't evidence. [00:18:08] Speaker 00: And so we presume that the juries followed their instructions, and we presume the jury knew this simply is not evidence. [00:18:14] Speaker 00: And the fact that the jury said, even after they got the indictment, what we've been doing is reviewing evidence. [00:18:18] Speaker 00: What we're going to keep going back to do is review more evidence, shows they weren't just reviewing the indictment. [00:18:22] Speaker 00: They were told in the jury instructions, which again, we presume they follow, the evidence that you have to look at to decide this case is evidence adduced at trial and testimony adduced at trial. [00:18:31] Speaker 00: So the jury knew what the evidence was. [00:18:32] Speaker 00: It was the evidence at trial. [00:18:34] Speaker 00: There's no reason to think they thought this [00:18:36] Speaker 00: And that meant was with evidence and the fact that they kept reviewing well no reason. [00:18:42] Speaker 01: I mean they got the indictment and Two hours later. [00:18:46] Speaker 01: They've got a verdict on at least one count [00:18:50] Speaker 00: I disagree on that. [00:18:52] Speaker 00: We don't know exactly what happened and what they're locked on before and after. [00:18:55] Speaker 01: We're never going to know, right? [00:18:56] Speaker 01: That's one of the whole keys of a jury system is that you're not supposed to know what goes on in the jury room. [00:19:02] Speaker 01: I'm not sure you can keep pointing to that as favoring you. [00:19:06] Speaker 01: We don't know because we intentionally don't want to know. [00:19:11] Speaker 00: That's correct. [00:19:12] Speaker 00: I just want to make sure the court doesn't say well we knew they were deadlocked on five counts before then they were only deadlocked on one later. [00:19:17] Speaker 00: That's something we just don't know. [00:19:18] Speaker 00: We don't know how many are deadlocked before and how many are there. [00:19:20] Speaker 00: We only know they're deadlocked before and after. [00:19:23] Speaker 00: But I think the fact that they were told three separate times this indictment is not evidence. [00:19:27] Speaker 03: Just on that my recollection is I get your point that like we didn't have a number before we have a number the second time the jury. [00:19:32] Speaker 00: That's correct. [00:19:33] Speaker 03: But as I recall the way the jury said it [00:19:35] Speaker 03: Person ordinary human communication would make you think that they had narrowed the range on which they were deadlocked But maybe I'm mr.. So can you tell me what I probably have it here somewhere? [00:19:46] Speaker 03: But what did they say the first time and what did they say the second time? [00:19:51] Speaker 00: The first jury note said we are currently deadlocked and need instruction from the judge. [00:19:55] Speaker 00: We'd like to break for the day, too Okay, that's the note the second note said [00:19:59] Speaker 00: Let me find it here. [00:20:01] Speaker 00: We are deadlocked on only one count. [00:20:02] Speaker 03: If I tell my colleagues, you know, I don't agree with you on this. [00:20:11] Speaker 03: Now I only don't agree with you on one thing. [00:20:13] Speaker 03: Usually, if you're an ordinary human, you think that something's narrowed. [00:20:18] Speaker 00: I just think we just don't know. [00:20:19] Speaker 00: I think this court could maybe say it's possible, but I don't think we know. [00:20:23] Speaker 00: And I just want to make sure that the facts are clear, that we simply don't know what the jury was saying. [00:20:26] Speaker 00: But again, even if we think that's true, this court has said two hours after an Alan charge, when the jury comes back, that's more than enough time. [00:20:33] Speaker 00: This court has approved up to 90 minutes after an Alan charge. [00:20:36] Speaker 03: You mean just one Alan charge with nothing more? [00:20:38] Speaker 03: Is that what you're saying? [00:20:38] Speaker 00: That's correct. [00:20:39] Speaker 00: And here, of course, the defendant isn't challenging the Alan charge. [00:20:42] Speaker 00: The defendant is only challenging the indictment looked at in the context of the entire deliberation process. [00:20:47] Speaker 00: And I'll remind the court, the island charge happened the night before on the first day of the liberation. [00:20:51] Speaker 00: So they got the island charge, which the court gave this court's pattern mild island charge instruction. [00:20:57] Speaker 00: And that instruction also said, do not change an honest belief just to reach a verdict, which is very clear that the court heard that instruction. [00:21:05] Speaker 00: The jury then went home, came back the next day, and never received the indictment. [00:21:10] Speaker 00: So if there was a course of effect of that island charge, it would have dissipated overnight before they came back the next day. [00:21:15] Speaker 01: But in terms of the jury itself, if we just look at the time when the jury was together, it was immediately after the Allen charge, right? [00:21:22] Speaker 01: I mean, because they broke right then. [00:21:25] Speaker 01: If we're just looking at jury time, within ten minutes of the Allen charge, they had the indictment. [00:21:31] Speaker 00: That's correct. [00:21:32] Speaker 00: Something like that. [00:21:32] Speaker 00: Yeah, they got it when they got back, presumably around ten o'clock. [00:21:36] Speaker 00: It's not totally clear from the record when they got it. [00:21:38] Speaker 02: Can you address Evanston? [00:21:40] Speaker 02: I mean, why doesn't Evanston control here? [00:21:44] Speaker 02: That was where an indictment, I think, was given after an Allen charge, and we said, [00:21:50] Speaker 02: that was coercive. [00:21:52] Speaker 02: And I understand we have to look at totality of circumstance, so maybe there's something in there. [00:21:59] Speaker 02: I'd like to hear what your position is. [00:22:01] Speaker 00: Everything's an entirely different case your honor, and it wasn't an indictment that went back But I was gonna have what happened in Evanston was the jury was was hung the court asked the jury What are the factual issues you're hung up on the jury told the court what those facts were and the court had the parties? [00:22:15] Speaker 00: Give supplementary argument during the liberation to help the jury break a deadlock. [00:22:20] Speaker 03: That's that's a wildly different point Why is that not actually why is this not a worst case because essentially by just giving an indictment? [00:22:27] Speaker 03: that you're essentially letting the government come in and give their argument of what they think the facts are in the case and not letting the defense give the counter indictment or their counter facts. [00:22:38] Speaker 03: It just seems like it's almost worse than that. [00:22:40] Speaker 00: I think there's a couple of pretty important differences. [00:22:42] Speaker 00: The main one being, arguments by counsel, courts instruct juries about this, are designed to help the jury interpret the evidence. [00:22:49] Speaker 00: Indictments are not that. [00:22:50] Speaker 00: The jury was very clearly told, arguments are how to help you determine what the evidence meant. [00:22:54] Speaker 03: The challenge here is, I get that, but the challenge here is, I mean, am I a juror? [00:22:59] Speaker 03: Tell the court I told the judge the night before listen. [00:23:03] Speaker 03: We're deadlocked the judge says you know Alan charge and sends him home immediately next morning they come in and at some time very close to when they come in they get this thing and I I just Isn't it? [00:23:17] Speaker 03: I think even likely but certainly Possible that they thought this thing was responsive to what they had told the judge just before they got sent home the night before [00:23:25] Speaker 00: A few points on that but the first is that the judge said When I respond to a jury note from you, it'll be either in writing or in person in court So the indictment was neither of those it wasn't a jury response in writing It was an open court so the jury wouldn't have seen that as responsive to its second jury note from the night before and given the timeline I think that also wouldn't have affected the jury wouldn't have thought that this indictment is a response to something We got a day before especially when they were already given what do you think they thought it was? [00:23:50] Speaker 03: what do you think they thought when they got this thing and and [00:23:54] Speaker 00: We simply can't know, Your Honor. [00:23:55] Speaker 00: But again, when they came back an hour later and said we're still deadlocked, the jury told them, this indictment is not evidence. [00:24:01] Speaker 00: It's just a charging document. [00:24:02] Speaker 00: It doesn't prove anything. [00:24:04] Speaker 00: So the jury knew this was not evidence. [00:24:06] Speaker 00: And they were told the night before, don't change an honest belief you have just to reach a verdict. [00:24:10] Speaker 00: And so they were given that instruction. [00:24:12] Speaker 00: They were given the additional instruction that indictment is not evidence. [00:24:15] Speaker 00: Deliberated for four hours. [00:24:16] Speaker 00: We know they weren't just sort of being coerced into reaching a verdict They didn't reach a verdict on one count if I'm not guilty on some counts And they told us what we're doing is reviewing the evidence here So they were not just coerced or carefully reviewing the evidence in this case to determine guilt or not guilt I Mean you probably can see though. [00:24:36] Speaker 01: It wasn't great that the indictment went back without a limiting instruction, right? [00:24:40] Speaker ?: I [00:24:41] Speaker 00: I think had we known he would have perhaps asked for one, and I think this is probably not best practice. [00:24:46] Speaker 00: But it doesn't rise to the level of coercion here, Your Honor, because the jury was given these instructions that were very clear. [00:24:51] Speaker 00: They deliberated for about four hours after they got it. [00:24:54] Speaker 00: And the split verdict, I think, is probably the best evidence that shows they weren't coerced to reach any verdict at all, let alone a verdict of guilty. [00:25:00] Speaker 03: My time is running up. [00:25:01] Speaker 03: I'm happy to- So if the court had a rule, like if our brother Judge Cole goes back to [00:25:09] Speaker 03: and decides every time he has a deadline jury, he just sends them the indictment. [00:25:12] Speaker 03: That would not be a good rule to have. [00:25:14] Speaker 00: Probably not best practice. [00:25:16] Speaker 00: But of course, this court will look to the totality of circumstances. [00:25:18] Speaker 03: It might be effective in getting the case moved along. [00:25:21] Speaker 00: Totality of circumstances. [00:25:22] Speaker 00: And so it looks to all the facts in the record. [00:25:25] Speaker 00: In this case, the specific facts here show there was no jury coercion. [00:25:28] Speaker 00: I think that the timing of the verdict, I think the instructions of the jury was given multiple times about the indictment, and the fact that they were told don't change an honest belief, and the fact that they came back with verdicts of not guilty. [00:25:38] Speaker 00: And one still hung verdict, which shows they weren't coerced into just reaching a verdict no matter what. [00:25:43] Speaker 04: Thank you very much your honor you have time for a bottle Thank you, I'd like to hone in on something that the government council argued multiple times here Which is that we don't know what happened with the jury and that the jury is a black box this is precisely why this court should apply see well to the facts here because [00:26:11] Speaker 04: we could have known, but for the prohibition against learning about internal jury deliberations. [00:26:20] Speaker 04: And because we don't know, again, the government cannot overcome a presumption, if that is the standard this court applies, that there was coercion here. [00:26:28] Speaker 04: I think, Judge Medaik, you're right that the Evanston court, Evanston case is instructive here, and in fact, this case is worse, because there was no opportunity [00:26:39] Speaker 04: for defense counsel to highlight its theory of the case and its evidence and for the reasons we've addressed the late reminder that the indictment is not evidence was insufficient to cure the coercion that existed. [00:26:54] Speaker 01: When the jury received the indictment and unless I mean the problem is sort of as we've been saying and as government counsel said the jury's a black box So if there's a presumption, it's gonna be very hard for them to overcome it If it's your burden, it's gonna be very hard for you to meet it. [00:27:10] Speaker 01: It just it seems like whichever Whoever bears the burden is pre-destined to lose almost because we're not gonna allow investigation of what's going on in the jury room [00:27:20] Speaker 04: And I think that's why in Sewell, the court has found that the Sixth Amendment rights of the defendant must control in a case like this. [00:27:28] Speaker 04: And perhaps in some instances, that's an unfair rule for the government, but it must be this way in order to protect the defendant's rights to a fair trial. [00:27:38] Speaker 03: Well, and this, I mean, this was an unfortunate accident. [00:27:41] Speaker 03: Nobody's really fault. [00:27:42] Speaker 03: There's just the two different. [00:27:43] Speaker 03: And so I doubt, I expect this would not happen very often. [00:27:47] Speaker 04: I think this is a unique case. [00:27:50] Speaker 03: Unless he takes my advice, and I give him an indictment every time he has a hangover. [00:27:54] Speaker 03: That'll be the sixth sentence. [00:27:55] Speaker 01: Well, that will be your problem, right, yeah. [00:27:58] Speaker 04: But yes, unless the court has any other questions, we would ask the court to reverse the convictions, and I'd submit on that. [00:28:05] Speaker 02: OK, thank you. [00:28:06] Speaker 02: Thank you to both counsel for your arguments in a unique case, for sure. [00:28:10] Speaker 02: The case is now submitted, and that concludes our arguments for the day. [00:28:33] Speaker 00: Hear ye, hear ye, all persons having had business with the Honorable the United States Court of Appeals for the Ninth Circuit will now depart for this session.