[00:00:02] Speaker 03:
Welcome to the Ninth Circuit.

[00:00:04] Speaker 03:
I'm glad to be joined by my colleague, Judge Bumate.

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As you know, Judge Hurwitz is also on this panel.

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He is unable, unfortunately, to attend the argument this morning, but he will be participating, and we will be working through the case with him after the argument.

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We just have this one case set for argument.

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So just pay attention to the time.

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We should have plenty of time for the argument today, given that it's a fairly narrow issue on remand.

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But let us know if you want to reserve time for rebuttal and just watch your time as we go.

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So we'll go ahead and hear argument in the case set for argument today.

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which is United States versus Olivas, case numbers 20-50182 and 21-50270.

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And we'll hear first from Mr. Gunn.

[00:01:07] Speaker 01:
Thank you, Your Honor.

[00:01:08] Speaker 01:
I'm Carl Gunn.

[00:01:09] Speaker 01:
I represent Ms.

[00:01:09] Speaker 01:
Eldebus.

[00:01:10] Speaker 01:
The timer I'm seeing says 20 minutes, but your order had reduced it to 15 minutes.

[00:01:15] Speaker 03:
Perfect.

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Thank you for reminding me.

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We did actually look at this and say we might not need 20 minutes.

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The day sheet didn't get updated and so that communication, it's bad when the staff ignore our own orders.

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It's not a good thing.

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We forget about our own orders.

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I suppose I should have kept my mouth shut.

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No, that's good.

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If you need a little bit of time, we'll give it to you, but I don't think you'll need it.

[00:01:40] Speaker 01:
All right, I'm going to reserve three minutes for rebuttal if I can.

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And I have more.

[00:01:45] Speaker 01:
Great.

[00:01:47] Speaker 01:
Your honors, first of all, let me focus on the Diaz opinion, which, of course, is what this remand is all about.

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In the middle of that opinion, the court gives a hypothetical that I quoted my supplemental brief.

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And it says in that hypothetical,

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that testimony violates the rule if, quote, the expert concluded that the defendant was a part of a group of people that all have a particular mental state, unquote.

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That's exactly what the expert did here.

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He said Ms.

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Olivas was part of a group of people, secretaries, and he said secretaries have a particular mental state.

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They know everything.

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So that fits right into the language of the Diaz opinion.

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And it makes perfect sense if you think about it.

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I think everyone would agree that an expert can't come in and say, Ms.

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Diaz knew everything.

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And all it had, I'm sorry, Ms.

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Olivas knew everything.

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And all that happens here is he breaks it into two steps.

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He says, secretaries know everything and Ms.

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Olivas is a secretary.

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So I think it squarely violates that.

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Can we back up?

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I appreciate that you've jumped into the merits, and there's some interesting issues here.

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But to the standard of review, do you still maintain that anything other than plain error applies here?

[00:03:05] Speaker 01:
I do, Your Honor, as well.

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Yes, and also I think the air is plentiful anyway.

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But I think plain air applies for two reasons.

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First of all, I think the government waived it by not raising it in the Supreme Court cert opposition.

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The government can and often does raise such issues in the cert petitions, their cert oppositions.

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In fact, in the deep.

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But here, I mean, admittedly, the government didn't actually even weigh in on the merits.

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Basically, the government just came in and said, look,

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If you're going to take Diaz, then yeah, we agree that you should probably hold this case.

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It didn't really weigh in to the merits at all.

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It seems a little odd that you would have to preserve all merits-based arguments when you're not even weighing in on the merits.

[00:03:54] Speaker 01:
Well, I think you make your decision about whether to weigh in on the merits.

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But the other reason I think plain air doesn't apply here, Your Honor, is I think there was a sufficient objection.

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Basically, what happens is the government in its pre-trial motion says, we're not going to get into the ultimate issue.

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And then as soon as it starts approaching that, I think the question is about, was she passing messages, et cetera?

[00:04:18] Speaker 03:
uh... the defense attorney of jackson says that's ultimate issue i don't think he has to keep repeating that objection uh... let me ask you on that one would that be controlled by law of the case because we already said plane error applied here uh... i guess because it's gb yard we are not found by that is that what your position would be

[00:04:40] Speaker 01:
Yes, and when I look back at your memo, memorandum of disposition, I don't think you say plain error, Your Honor.

[00:04:45] Speaker 01:
I think you just went to the merits and said it wasn't a direct opinion.

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Well, yeah, it's admittedly the disposition on this issue was a little less than clear, although we do say we do say a plain error in the section.

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But you're right.

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We do say didn't err.

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So.

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Yeah, I don't read your I don't read.

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It's certainly not very clear a lot of the case.

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So I certainly think it's open.

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I'm reading the other.

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The other problem here is given the language I just quoted from the opinion and the testimony we have here, the air is playing after Diaz.

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And of course, you look at whether it's plain in light of the law now, not whether it was plain in light of the law back when the district court had the case or you first had the case.

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Why is that the reason?

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I don't understand that rule.

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I thought the whole point of plain error is that it should have been obvious to the district court judge that there was something wrong.

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But if the appellate decision that says it's an error doesn't come until after trial, how could that be plain?

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There's actually a Supreme Court case that addressed that very concern, Your Honor, and they said the rule about plain air isn't a rule of we got you on the district judge.

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It's a rule of what applies while the case is pending.

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That very argument was made in the Supreme Court Henderson case.

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that I cite in my supplemental brief, and the Supreme Court weighed the two views, and it said the rule is that what controls is whether it's plain at the time of the appellate decision.

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Because we're not... Well, this plain air isn't about, oh, district judge, you screwed up.

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It's about we want to apply the law that is obvious now.

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Okay.

[00:06:25] Speaker 01:
Thank you.

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That makes sense.

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All right.

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Can I ask you on this?

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Because it is an interesting question.

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Because you have the Diaz opinion.

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But what about our prior Ninth Circuit opinions?

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Because we relied on Ninth Circuit precedent in our prior MemDISPO.

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I'm just looking back through it.

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It looks like it's exclusively Ninth Circuit precedent.

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Is that irrelevant?

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because there's an intervening Supreme Court case or do we need to look at, I mean, I guess my question is, do we look solely at Diaz or do we also look at Diaz in conjunction with our prior Ninth Circuit precedent when we're looking at Plain Air?

[00:07:12] Speaker 01:
I think you look solely at Diaz to the extent that Diaz, certainly to the extent that Diaz

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rejects the underlying reasoning of the Ninth Circuit opinion.

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The Ninth Circuit case law basically looked at whether it was a, quote, direct opinion, unquote, which was the language in your memorandum of disposition or an explicit opinion, which was the language in the Diaz memorandum of disposition.

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And I think the Supreme Court has basically said, no, that's not the test anymore.

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The test now is this distinction between most defendants

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where the defendant might not be included, and all the defendants where it necessarily has to include the defendant.

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When the Supreme Court writes an opinion that makes it crystal clear, I think, that that's now the test, then you've got to apply that test.

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And Ninth Circuit case law, probably like the Fleishman case that's inconsistent with that, is no longer good law.

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Some of the Ninth Circuit cases where they upheld expert testimony that said things like,

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oh, the defendant's conduct was, quote, consistent with, unquote, a certain role, that might still be OK, because that leaves open the possibility that the defendant's conduct was not part of a conspiracy.

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But here, you don't have that consistent with.

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You have secretaries know everything, and she is a secretary.

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So I think in terms of Ninth Circuit case law, yes, you ignore it to the extent it's inconsistent with Diaz.

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And I think the key Ninth Circuit case law here is consistent with Diaz.

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The test is no longer direct or explicit opinion.

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The test is an opinion that necessarily includes the defendant or doesn't necessarily include the defendant.

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This most all distinction, or as Justice Gorsuch characterized in his dissent,

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the distinction between a definitive opinion and a probabilistic opinion.

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The government comes in, and most of its briefs have had how, oh, this didn't change the law at all.

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I think it's completely clear this changed the law.

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And I think it's also completely clear, frankly, that our case is on the wrong side, so to speak, for the government of the line.

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Go ahead.

[00:09:33] Speaker 02:
Just going back to the plaintiff question, the objection that you raised, are you talking about the prelim objections or right before the witness was asked what his opinion was on her role, secretary, there was an objection, but that was based off of the question of whether or not they were passing messages to each other.

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Is that the objection you're relying on or is there another objection?

[00:10:01] Speaker 01:
You know, that's the objection I'm relying on, Your Honor.

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And if you think about it, that they're passing messages on as part and parcel of her being a secretary.

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So if that's not objectionable as an ultimate issue, then her being a secretary is not going to be objectionable as an ultimate issue.

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So I think that's why the objection making it again would have been superfluous.

[00:10:20] Speaker 02:
Well, I guess the problem with that is that there are two different issues here.

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One, I mean, the objection is ultimate issue.

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I mean, an expert is allowed to testify to an ultimate issue unless it's about a mental state.

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And so that objection doesn't raise that concern.

[00:10:36] Speaker 01:
Well, if it's part and partial of her being a secretary and then you fit that she's a secretary into the secretary's know everything, I think it is.

[00:10:45] Speaker 01:
I mean, I see the argument, Your Honor, but I don't think you need to get there because the error is plain after Diaz anyway.

[00:10:52] Speaker 02:
Yeah.

[00:10:53] Speaker 01:
Okay.

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And then so my question on that, the plain error, I think you are correct under Diaz if it was one line of testimony that

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secretaries know everything and that Ms.

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Olivas is a secretary, I think that would clearly violate Diaz.

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But given that there was what, you know, 50 pages of testimony in between those two statements, how can you say that that's plain under Diaz?

[00:11:20] Speaker 01:
Well, because he said secretly, I don't think it matters how far apart the testimony is.

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He said a certain class of people know everything,

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And then he said, she's in the class.

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Well, I guess differences is like, you know, what Diaz is concerned about is drawing that direct connection.

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But here, what you're doing is taking two separate statements and building them together, which does present the Diaz concern.

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But as he testified to it, there were just two separate statements.

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When you combine them, then it becomes erroneous.

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But if alone, they're both fine.

[00:12:00] Speaker 01:
I don't think Diaz supports that distinction, Your Honor.

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I will point out, the government likes to point out that it was actually said earlier at another point, the wording was a little different.

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What does this indicate to you?

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And he said it indicates she was a secretary.

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That may be more like 10 pages after the, I can't remember the exact distance there.

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But I just don't think anything at Diaz supports the idea that it matters how far apart the testimony is.

[00:12:30] Speaker 03:
I thought Diaz sort of depends on whether he's opining in a way that the jury would understand that it's unequivocal.

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And that's, I mean, I think that's the distinction that, you know, especially where it's up on plain error, it's not entirely clear what Diaz said.

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I mean, at a minimum, Diaz does say,

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Look, if you say all secretaries know this and she's a secretary and the jury is able to make that connection, that seems to fall under Diaz.

[00:13:04] Speaker 03:
But where it's plain error, it's hard to know whether the Supreme Court would come out the same way or whether Diaz would come out the same way.

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I mean, I think there's arguments on both sides.

[00:13:14] Speaker 03:
It's not clear that it would be plain error if

[00:13:17] Speaker 03:
that testimony comes out that, you know, secretaries generally do this, and then, you know, 10 pages or 50 pages later in the testimony says, well, she's a secretary.

[00:13:30] Speaker 03:
I mean, both of which seem to be true statements.

[00:13:34] Speaker 01:
Well, well, the defense obviously argued differently, Your Honor, but the, I don't think, well, first of all, he didn't say secretaries generally know.

[00:13:44] Speaker 01:
He said secretaries do know everything.

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And I just don't think there's anything in Diaz that says you get to look at how far apart the two statements are.

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I don't see anything in Diaz that supports that.

[00:14:00] Speaker 01:
And then you have to get back to the question of the sufficiency of the objection and the government waiver questions, of course.

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I don't concede that plein air applies here.

[00:14:09] Speaker 03:
Even if we get further, you still have to show that it affects a substantial right.

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I'd be interested in hearing how you think that would, there was pretty overwhelming evidence here

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that a jury could have found guilt.

[00:14:26] Speaker 03:
So could you address that prong if we get that far?

[00:14:29] Speaker 01:
I'd really like to, Your Honor.

[00:14:30] Speaker 01:
Thank you very much.

[00:14:32] Speaker 01:
First of all, this is what defense lawyers very much call a defiable case.

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There are a whole bunch of responses to this evidence the government said was overwhelming.

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First of all, just in terms of a general defense theory, you have really good reasons why Ms.

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Galvadon would be visiting her brother anyway.

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It's her brother.

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You have money laundering getting attached to sending $1,350 over 10 years.

[00:15:06] Speaker 01:
You have a really strong sort of defense

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gestalt or theory here about how this isn't necessarily a sister being a secretary, but it's a sister being an elderly sister, the oldest sister in the family.

[00:15:22] Speaker 01:
Also, all these things the government points to, these sort of damning things in the transcripts, if you look at them more carefully, there's other ways of interpreting those than the government interpret them.

[00:15:34] Speaker 01:
Let me give you just a couple of examples.

[00:15:36] Speaker 01:
On page six of its supplemental brief, the government talks about prison correspondence from Holguin, the supposed earlier shock color to Galvadon, that mentioned to Levis.

[00:15:47] Speaker 01:
And that, quote, further confirmed that Holguin regularly communicated with Galvadon's secretary.

[00:15:53] Speaker 01:
But the first things they cite in support of that, Supplemental Excerpt of Rhetoric Turn 321, all it says is, I still keep in touch with Sylvia.

[00:16:02] Speaker 01:
That's pretty ambiguous.

[00:16:04] Speaker 01:
In footnote four on page six, they have this thing where they say, he's saying, you got to tell Brian the shock collar that he's got to sort of back off on these people.

[00:16:16] Speaker 01:
Well, look at that.

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And she says, I'll tell him.

[00:16:20] Speaker 01:
But if you look at the transcript, the I'll tell him comes five pages after.

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what's basically ranting and raving by Galvadon.

[00:16:27] Speaker 01:
And the defense attorney argues about that in his closing argument at excerpts of record 1944 and 1966.

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He makes the point that when you look at the tape, the recording, which your honors don't have, when you look at the recording, you basically have this guy ranting and raving, and she just basically goes along with it and says, I'll tell him.

[00:16:47] Speaker 01:
So there's a perspective on that.

[00:16:49] Speaker 01:
On page eight, the government cites a letter saying, I told her not to be asking favors in your name.

[00:16:56] Speaker 01:
The government says that means collecting money.

[00:16:59] Speaker 01:
Well, yeah, maybe I suppose, but maybe it means collecting favors.

[00:17:03] Speaker 01:
There's lots and lots of things in these transcripts that this Mexican mafia expert comes in and says mean X, where the defense could argue it means Y.

[00:17:14] Speaker 01:
um your honor reserve uh i well there's no reserve i mean we'll give you time for rebuttal but um i think you've used up your time and and so we'll we'll go ahead and give you some time for rebuttal okay well just one other thing to throw in your honor i think one thing to look at here is the defense attorney's closing argument when you're thinking about prejudice he had a lot to work with he had a lot to argue and you have that in the transcripts but i'll save the rest of my time for rebuttal okay thank you we'll hear from the government

[00:17:45] Speaker 00:
Good morning, Your Honor, may it please the court on behalf of the United States.

[00:17:51] Speaker 00:
Diaz affirmed this court's long standing precedent on which this court relied and holding that and weak as his testimony did not run afoul of rule 704 B.

[00:18:01] Speaker 00:
And that's because Enriquez's testimony did not draw, much less compel, the ultimate conclusion that Miss Olivas intended to further the conduct of the Contas-Ranas enterprise.

[00:18:14] Speaker 00:
And that was the relevant mens rea for this case.

[00:18:17] Speaker 03:
So can I ask about that?

[00:18:19] Speaker 03:
Because you've made the point.

[00:18:20] Speaker 03:
I mean, it is true the Ninth Circuit got affirmed.

[00:18:23] Speaker 03:
Always a good day in the Supreme Court when the Ninth Circuit gets affirmed.

[00:18:28] Speaker 03:
But it didn't really adopt the same test we did.

[00:18:31] Speaker 03:
We have prior case law that says that basically, I forget the words we've used, but it seems like we have to, it's indistinguishable that, or it's very clear that the testimony didn't preclude any other inference.

[00:18:52] Speaker 03:
The Supreme Court didn't actually go quite that far.

[00:18:55] Speaker 03:
It basically, I mean, as a lot of times is true, the Supreme Court, in my view, didn't lay down

[00:19:02] Speaker 03:
you know, a test that can apply in all cases, but at a minimum, it said you can't use all as long as you use most you're okay.

[00:19:11] Speaker 03:
So doesn't that suggest that it isn't a wholesale adoption of the Ninth Circuit's prior cases?

[00:19:18] Speaker 00:
I think that for holding from the Supreme Court is consistent and affirms the reasoning of this long standing precedent from the ninth circuit.

[00:19:26] Speaker 00:
Ultimately, the Supreme Court opined that the agent or the expert there had not stated expressed an opinion about the ultimate.

[00:19:35] Speaker 00:
mens rea of the defendant.

[00:19:38] Speaker 00:
And this court's cases and Morales and which this court cited in its DS memorandum, I'm sorry, in the memorandum of opinion in this case is ultimately that you can speak to predicate matters.

[00:19:51] Speaker 00:
You can say that majority of people have this and defendant is one of these people.

[00:19:57] Speaker 00:
But as long as you're not saying the defendant had this intent, then you're not running afoul of Rule 704B.

[00:20:03] Speaker 00:
And that's exactly what happened here.

[00:20:07] Speaker 00:
The relevant intent was whether Ms.

[00:20:09] Speaker 00:
Olivas intentionally acted with a purpose to help the context run as enterprise.

[00:20:15] Speaker 00:
And Enrique is by testifying that she knew everything, did not opine on that matter.

[00:20:19] Speaker 00:
In fact, to the contrary, he confirmed that there is such thing as a secretary who does not intend to involve herself in or further the content of the enterprise.

[00:20:29] Speaker 03:
Where does that come in?

[00:20:30] Speaker 03:
Cause that does seem to be key.

[00:20:31] Speaker 03:
If that's true, that would seem to fall within Diaz.

[00:20:35] Speaker 00:
So, direct your attention to 6ER 1126-27, and this is Ms.

[00:20:40] Speaker 00:
Olivas's council's cross of Mr. Enriquez.

[00:20:43] Speaker 03:
I'm sorry, 6ER, what was the?

[00:20:45] Speaker 00:
1126-27, and this is council from Ms.

[00:20:49] Speaker 00:
Olivas, and he's crossing René Enriquez, and he's quoting and he's impeaching Mr. Enriquez from his book called Urban Street Terrorism.

[00:20:58] Speaker 00:
And he says, quote, I think you go into detail of the three levels of involvement and there he's talking about involvement of secretaries.

[00:21:06] Speaker 00:
Some were very aware of their involvement in ma activity.

[00:21:09] Speaker 00:
Some had an idea, they were being utilized for something illicit and adopted don't ask don't tell policies and others were kept in the dark and expected to be loyal.

[00:21:18] Speaker 00:
So by Mr. Enriquez's own testimony, which, by the way, Enriquez later confirmed that those were his statements, defense counsel has established a tier system of not just knowledge, but intention among secretaries.

[00:21:32] Speaker 00:
And that became the core of defense counsel's closing.

[00:21:34] Speaker 00:
If you look at 10 ER 1963 to 64, defense counsel repeats that passage

[00:21:42] Speaker 00:
from Urban Street Terrorism, from Enriquez's book.

[00:21:45] Speaker 00:
He draws these three tiers.

[00:21:47] Speaker 00:
There's the very aware secretaries.

[00:21:48] Speaker 00:
There's the don't ask, don't tell secretaries.

[00:21:51] Speaker 00:
And then there's the kept in the dark.

[00:21:52] Speaker 00:
And he says this, the ones that were very aware of their involvement in MA activity, yeah, that's a guilty verdict.

[00:22:00] Speaker 00:
That is the secretary who knows exactly what she's doing and embraces it and gets involved with it.

[00:22:05] Speaker 00:
Some that were, he goes then next into the next category, some that were aware that they were being utilized for something illicit and adopted a don't ask, don't tell policy.

[00:22:15] Speaker 00:
That would be a non guilty verdict on the Rico charge.

[00:22:17] Speaker 00:
You have to know, you have to purposely get yourself involved with this.

[00:22:20] Speaker 00:
It can't be something you can just like turn a blind eye toward like money laundering.

[00:22:25] Speaker 00:
This is something you have to be involved with.

[00:22:27] Speaker 00:
And then finally, he says, others were kept in the dark and expected to be loyal.

[00:22:31] Speaker 00:
Well, that is Mrs. Olivas.

[00:22:33] Speaker 00:
That is a verdict of not guilty.

[00:22:35] Speaker 00:
So by defense counsel's own strategy at trial, you can know everything.

[00:22:40] Speaker 00:
You can know who Jose Loza is.

[00:22:42] Speaker 00:
You can know who Armando Olguin is.

[00:22:44] Speaker 00:
You can know that you're supposed to put money on Laura Hernandez's books.

[00:22:49] Speaker 00:
But whether you intend to further the conduct of the enterprise, which is the required mens rea for the conspiracy, that's a different question.

[00:22:57] Speaker 00:
And that's the issue that defense counsel focused on.

[00:23:01] Speaker 00:
In addition, he also said, look, it's not clear that Sylvia Olivas is herself a secretary.

[00:23:07] Speaker 00:
But even if she is, she's not in this first category of secretaries who are very aware.

[00:23:13] Speaker 00:
So that's why this doesn't run afoul of rule 704B.

[00:23:16] Speaker 00:
It's a little distinct from Diaz, but it's still consistent with this court's longstanding precedent.

[00:23:23] Speaker 02:
Unless the court has- Yeah, so if I could understand your argument, you would agree that Mr. Enriquez did testify that Ms.

[00:23:31] Speaker 02:
Olivas knows everything about the Mexican mafia, but you're saying that that's not the mental state required under the RICO charge.

[00:23:38] Speaker 02:
And so therefore 704B doesn't apply.

[00:23:41] Speaker 00:
That's correct, Your Honor.

[00:23:43] Speaker 02:
Okay.

[00:23:46] Speaker 00:
Basically, we're saying there is such thing as an unwitting or, for lack of a better word, a blind secretary.

[00:23:51] Speaker 00:
And the defense was that this will leave us with that.

[00:23:54] Speaker 03:
That's the distinction that Diaz seemed to rely on is as long as you don't totally, you know, negate the opportunity for that group.

[00:24:06] Speaker 03:
In that case, it was couriers.

[00:24:08] Speaker 03:
As long as you don't say all court, you know, by definition, if you're a courier,

[00:24:12] Speaker 03:
then you have the mental state, then you don't violate 704.

[00:24:17] Speaker 00:
That's correct, Your Honor.

[00:24:18] Speaker 03:
What was the language?

[00:24:19] Speaker 03:
I was just trying to look back.

[00:24:21] Speaker 03:
What was the language that the defense points to here?

[00:24:25] Speaker 03:
Because I was trying to see how much it lines up with all secretaries.

[00:24:32] Speaker 03:
I mean, here it seems like the testimony was that secretaries know everything.

[00:24:40] Speaker 03:
Did it say all secretaries, or is that implied in the testimony that the defense picks up on?

[00:24:51] Speaker 00:
What's your take on that?

[00:24:51] Speaker 00:
It didn't say all secretaries, but even if this court were to interpret it as all secretaries, it still wouldn't run afoul of Diaz or 704B.

[00:25:00] Speaker 03:
Because of the other testimony that you pointed to?

[00:25:03] Speaker 00:
Because, well, correct.

[00:25:05] Speaker 00:
And because a statement that they know everything, which is vague, I think that your honor is alluding to, is still not a statement about the mens rea.

[00:25:13] Speaker 00:
It's still not an opinion, explicit opinion, about the defendant's mens rea and what the mens rea was in this case.

[00:25:19] Speaker 00:
As defense counsel said in his closing, she must intentionally act with a purpose to help the Canto Rana street gang.

[00:25:25] Speaker 03:
Well, if they say secretaries know everything, how does that not get to mens rea?

[00:25:30] Speaker 03:
I mean,

[00:25:31] Speaker 03:
Let's say there wasn't the exculpatory – the three categories that was elicited in cross-examination that you pointed to.

[00:25:44] Speaker 03:
And let's say these came more temporally and the testimony from the expert was all secretaries know everything about the mafia and she was the secretary.

[00:25:55] Speaker 03:
Would we have plain error in that circumstance?

[00:25:58] Speaker 00:
No, your honor, you wouldn't have plein air because you would still need a statement that all secretaries intended further the conduct of the enterprise.

[00:26:07] Speaker 00:
And that evidence is distinct from what they know about the enterprise, you can think about hypothetical professor or in this case, a secretary or and sorry, a former

[00:26:16] Speaker 00:
an MA member who knows everything about how an organization is run.

[00:26:21] Speaker 00:
He knows the different roles.

[00:26:22] Speaker 00:
Does he intend to further the conduct?

[00:26:25] Speaker 00:
No, that's different evidence.

[00:26:26] Speaker 00:
That's her passing the messages, relaying information back to Galvaldo.

[00:26:31] Speaker 00:
That's the other evidence that was elicited at trial, but simply knowing everything about how the activities of an organization, which is what the question was, does not equal an intent to further the activities of the enterprise.

[00:26:45] Speaker 02:
So, counsel, in your view, then it doesn't matter what standard of review we have here.

[00:26:50] Speaker 02:
Even under regular, direct appeal, you think the government wins because it's the wrong mental state that they're arguing, essentially.

[00:26:59] Speaker 00:
That's correct, Your Honor.

[00:27:00] Speaker 00:
It doesn't matter because it wasn't error.

[00:27:02] Speaker 00:
However, we do maintain that this is a plain error standard of review.

[00:27:07] Speaker 02:
But there is the objection that was made right before the question of whether or not she's a secretary that seems to encompass it.

[00:27:15] Speaker 00:
First of all, that's not a specific objection on the basis of 704B, that it's going to the ultimate issue of her mental state, because that question was not about her mental state.

[00:27:27] Speaker 00:
But even so, the rule is very clear in this circuit that it must be a continuing objection and that it must be explicit.

[00:27:35] Speaker 00:
So, objecting to whether Olivas and Gabaldon were passing messages regarding MA Business is not an explicit objection as to the following question, and it's not an explicit continuing objection at that.

[00:27:47] Speaker 00:
Moreover, as we say in our brief, Bennett didn't object to earlier testimony where the expert characterized or described Olivas as his secretary.

[00:28:00] Speaker 00:
that is plainly, it's plain error.

[00:28:03] Speaker 03:
Is that fair to, would that be fair to require or expect them to object when they, when they said she's a secretary before there was an understanding of the import of what that meant?

[00:28:15] Speaker 03:
I don't think anybody's, I don't think anybody's actually denying that she was a secretary.

[00:28:20] Speaker 03:
I think where that became problematic was when, as the defense argues it, you know, the implication was, well, if you're a secretary, that

[00:28:30] Speaker 03:
get you across the mental state hurdle just on its own.

[00:28:35] Speaker 03:
So I understand your point that didn't object earlier.

[00:28:39] Speaker 03:
I'm wondering how much we can hold them to that when there might not have been a reason to object.

[00:28:46] Speaker 00:
Well, I think it was explicit in at least one of the earlier questions about Miss Olivas at 6 ER 1066.

[00:28:53] Speaker 00:
The question is, what does this indicate to you about Olivas' role in Gavildon's group?

[00:28:59] Speaker 00:
Could not be more explicit that the prosecutor is about to elicit testimony about Miss Olivas' role.

[00:29:06] Speaker 00:
Your honor also mentioned that there was no real dispute that Miss Olivas was the secretary.

[00:29:10] Speaker 00:
In fact, there was significant dispute about that.

[00:29:15] Speaker 00:
And so far as that plays into the plainness of the error, I think knowing that being a secretary was a damning accusation and knowing that the prosecutor was specifically eliciting role in the crew earlier on and not objecting there, they haven't preserved that objection.

[00:29:36] Speaker 02:
Can I ask then, assuming that we are talking about the right mental state here, that he was testifying to the mental state required by Rico, do you agree that Diaz would have made that an error because Diaz says, I mean, sorry, that Enriquez first testifies that secretaries know everything and that she's a secretary.

[00:29:59] Speaker 02:
The fact that there's maybe 50 pages of testimony in between doesn't cure that problem.

[00:30:06] Speaker 00:
Look, I think if we look at the arson example and the hypothetical that's in Diaz, I think that if the testimony were all secretaries intend to further the conduct of the enterprise.

[00:30:23] Speaker 00:
and Ms.

[00:30:24] Speaker 00:
Olivas is a secretary, you'd be running closer to the hypothetical that the Supreme Court, Justice Thomas laid out, which is problematic.

[00:30:31] Speaker 00:
But that's not what we had here.

[00:30:32] Speaker 00:
First, I think Judge Nelson draws the right distinction here, which is it was secretaries, it wasn't all secretaries.

[00:30:39] Speaker 00:
And two, it wasn't, as we're saying, it's not the mens rea.

[00:30:43] Speaker 02:
Yeah, but then did you take any, is there any import to the fact that there was a break in between and, you know, 50 pages of other testimony between those two statements?

[00:30:53] Speaker 00:
You know, I don't think Diaz speaks to that.

[00:30:55] Speaker 00:
So insofar as that has not been ruled on, it would not be a plain error.

[00:31:01] Speaker 00:
So I think there is room to argue that and that just the distance made it at least made that connection less tenuous or didn't make that connection explicit to the jury.

[00:31:13] Speaker 00:
But even if we were go to the most extreme of, OK, it did put her in the camp of secretaries and secretaries know everything, we still

[00:31:24] Speaker 03:
Can you address briefly the substantial rights?

[00:31:32] Speaker 03:
Opposing counsel gave a pretty lengthy discussion of why the evidence wasn't as clear cut.

[00:31:42] Speaker 03:
There was not overwhelming evidence of guilt here.

[00:31:45] Speaker 03:
Can you just in the remaining time address that?

[00:31:48] Speaker 00:
Sure.

[00:31:49] Speaker 00:
Well, first, Your Honor, I think you have to look at how everything was used in the trial.

[00:31:53] Speaker 00:
And aside from being elicited at the end of Mr. Enriquez's direct testimony, it was never relied upon by the government in either its closing or rebuttal.

[00:32:02] Speaker 00:
The government never said, look, because Mr. Enriquez testified that she knows everything, she knows everything, and she intended to further the conduct.

[00:32:09] Speaker 00:
That was not how it was used in any way.

[00:32:12] Speaker 00:
It was also the testimony about unwitting secretaries provided by Mr. Enriquez that would have cut against any suggestion that all secretaries intend to further the conduct of the enterprise.

[00:32:24] Speaker 00:
Mr. Enriquez was not a government agent, which has been a significant factor in court's harmlessness analyses.

[00:32:30] Speaker 00:
And finally, there was ample evidence of Mrs.

[00:32:33] Speaker 00:
Olivas's knowledge and intent.

[00:32:36] Speaker 00:
That was in the form of recorded phone calls, recorded jail visits, and written letters, surveillance, a recorded meeting with a CI where she expresses

[00:32:44] Speaker 00:
that you have to be careful about who you talk to.

[00:32:47] Speaker 00:
You never know who is informant.

[00:32:49] Speaker 00:
My phone might be being tapped.

[00:32:51] Speaker 00:
There are statements by co-conspirators acknowledging Ms.

[00:32:54] Speaker 00:
Olivas' role as a secretary and needing to talk to her.

[00:32:56] Speaker 00:
There's putting monies on the books of Contra Serrano's organization members.

[00:33:00] Speaker 00:
I see I'm out of time, but we would ask this court to confirm.

[00:33:04] Speaker 04:
Okay, thank you.

[00:33:05] Speaker 04:
Thank you for the argument.

[00:33:07] Speaker 04:
And we'll give you two minutes for rebuttal, Mr. Gunn.

[00:33:10] Speaker 01:
Thank you, Your Honor.

[00:33:11] Speaker 01:
Let me start on the principles of primacy and recency with the last comment.

[00:33:17] Speaker 01:
The government did rely on this in closing argument, and I'll get to that.

[00:33:21] Speaker 01:
But think about how powerful this is.

[00:33:23] Speaker 01:
It's not the government agent.

[00:33:25] Speaker 01:
It's an expert who probably knows more about the Mexican mafia than anyone out there.

[00:33:29] Speaker 01:
He was in it for 17 years.

[00:33:31] Speaker 01:
He's testified about it over 40 times.

[00:33:34] Speaker 01:
He lectures on it.

[00:33:35] Speaker 01:
He's written books about it.

[00:33:36] Speaker 01:
He's not just an expert.

[00:33:38] Speaker 01:
He's the expert.

[00:33:39] Speaker 01:
And on using it in closing argument, I'd refer you to the very beginning of the government's rebuttal argument.

[00:33:45] Speaker 01:
It's at Excerpts of Record 2022.

[00:33:50] Speaker 01:
His testimony shows you precisely what type of person becomes a Mexican mafia member.

[00:33:55] Speaker 01:
His testimony shows you that the Mexican mafia is an organization built on violence,

[00:34:00] Speaker 01:
and uses control through intimidation and fear.

[00:34:03] Speaker 01:
David Galvadon is a current Mexican mafia member.

[00:34:07] Speaker 01:
Silvia Olivas is his secretary.

[00:34:09] Speaker 01:
I think they did use it in closing argument and they used it at the very beginning of the rebuttal when the jury would be paying the most attention.

[00:34:17] Speaker 02:
So council, can you address the whole issue of the mental states that there are two different mental states being talked about here and that the one required by Rico isn't the one that Enrique has testified to.

[00:34:27] Speaker 01:
That was one of my next points, Your Honor.

[00:34:29] Speaker 01:
I just pulled the instruction on conspiracy.

[00:34:31] Speaker 01:
There's two mental states.

[00:34:32] Speaker 01:
There's two mens reas for conspiracy.

[00:34:35] Speaker 01:
One is the intent to further the objections of the conspiracy, but the other is knowing the objectives of the conspiracy.

[00:34:41] Speaker 01:
The instruction, I'm not sure it's in the excerpts, but it is in the clerk's record, I think, at ECF 3904, page 30.

[00:34:49] Speaker 01:
Defendant became a member of the conspiracy knowing of its object.

[00:34:54] Speaker 01:
and intending to help further.

[00:34:56] Speaker 01:
So there's two mens reas here, and he certainly testified explicitly about one of the mens reas, the knowing, and I think it was Judge Nelson sort of made the point.

[00:35:06] Speaker 01:
It sort of is implicit when they quote, know everything, unquote, that she's also intending to further the objectives.

[00:35:13] Speaker 01:
But I don't think you'd know.

[00:35:16] Speaker 03:
What about secretaries?

[00:35:17] Speaker 03:
It didn't say all secretaries.

[00:35:20] Speaker 03:
He said the testimony was secretaries.

[00:35:23] Speaker 03:
I understand.

[00:35:24] Speaker 03:
But I mean, these nuances, unfortunately, in light of Diaz are in some ways, just positive because Diaz said you can say most, but you can't say all.

[00:35:35] Speaker 03:
And so if you just say secretaries,

[00:35:36] Speaker 03:
So that's one thing.

[00:35:38] Speaker 03:
And then the second part was this other testimony about the three categories that was elicited on cross-examination, where it seemed to sort of delve into this idea that it isn't all secretaries actually, that there's different levels.

[00:35:54] Speaker 01:
That's just impeaching him on the testimony across, Your Honor.

[00:35:58] Speaker 01:
That was just impeaching him with a prior and consistent statement.

[00:36:02] Speaker 01:
He didn't withdraw or deny his prior testimony.

[00:36:06] Speaker 03:
Why shouldn't we interpret that to be a clarification of the prior testimony such that the fact that he didn't say all and he just said secretaries, now cross-examination clarifies that secretaries isn't the entire.

[00:36:22] Speaker 01:
I don't think he agreed with that cross-examination.

[00:36:25] Speaker 01:
He basically disavowed it.

[00:36:27] Speaker 01:
At one point, he says, I'm pretty sure it's my writing, but it could have also been edited by the publisher.

[00:36:32] Speaker 01:
I mean, he's not even admitting that that's what he said.

[00:36:35] Speaker 01:
And of course, this is a book that's 10 years earlier.

[00:36:37] Speaker 01:
He's not disavowing what he said on direct.

[00:36:40] Speaker 01:
And with all due respect, I think

[00:36:42] Speaker 01:
Oh, secretaries know everything without any qualification means all secretaries.

[00:36:48] Speaker 01:
I think that's plain, even if plain error applies.

[00:36:51] Speaker 01:
And I would, if I could, grab on to Judge Bumate's questioning there of opposing counsel.

[00:36:59] Speaker 01:
I do think you can't just expect them.

[00:37:02] Speaker 01:
I mean, the objection he did make to questions earlier was basically part of the ultimate issue testimony, and it got overruled.

[00:37:09] Speaker 01:
And he said ultimate issue.

[00:37:11] Speaker 01:
So I don't think he...

[00:37:13] Speaker 01:
You know, you don't want attorneys jumping up and repeating it after every question in a series of two or three or four or 10 questions.

[00:37:20] Speaker 01:
So I think that was sufficient.

[00:37:22] Speaker 02:
Can I ask one quick question?

[00:37:25] Speaker 02:
So you're saying that there's two mental states.

[00:37:27] Speaker 02:
I'm just looking at at least the pattern jury instructions and it says knowing for a conspiracy, knowing of at least one of its objects and intending to help accomplish it.

[00:37:38] Speaker 02:
That to me seems to be one mental state.

[00:37:41] Speaker 02:
Like, you know what's going on and you're intending to accomplish that.

[00:37:47] Speaker 02:
But you're suggesting we break it into two separate mental states.

[00:37:51] Speaker 01:
I don't know if you need to.

[00:37:52] Speaker 01:
I think no, everything in the context of his testimony means both of those together.

[00:37:59] Speaker 01:
But I think if there's two mens reas, there's two ultimate, you know, if there's, I think that's,

[00:38:08] Speaker 01:
It's in the instruction as one element, but it could be.

[00:38:11] Speaker 01:
I remember when I first started as a trial lawyer, they told me, oh, make it into five elements instead of two.

[00:38:17] Speaker 01:
And prosecutors wanted to have it be two.

[00:38:21] Speaker 01:
However you number it in the instruction, there's two things there.

[00:38:25] Speaker 01:
And you can't do one ultimate issue and not the other and say that's OK.

[00:38:30] Speaker 02:
OK, got it.

[00:38:30] Speaker 02:
Thank you.

[00:38:32] Speaker 03:
All right.

[00:38:32] Speaker 03:
Thank you to both counsel for your arguments in this.

[00:38:36] Speaker 03:
This case is very helpful, and the case is now submitted, and that concludes our argument for this morning.

[00:38:42] Speaker 03:
Thank you, Your Honor.

[00:38:43] Speaker 00:
This court, but this session stands adjourned.