[00:00:00] Speaker 03:
24-3061, U.S.

[00:00:01] Speaker 03:
v. Butler, Giante.

[00:00:08] Speaker 01:
Good morning, Your Honors.

[00:00:09] Speaker 01:
Paige Nichols here on behalf of the appellant, Giante Butler.

[00:00:13] Speaker 01:
May it please the Court, Giante Butler was convicted by a jury of participating in a drive-by shooting, and we have raised several claims of trial error that either individually or cumulatively warrant reversal.

[00:00:29] Speaker 01:
I'll dive right into issue number one.

[00:00:32] Speaker 01:
The government agrees that the district court should have instructed the jury that it could only use Zarian Butler's prior unsworn inconsistent statement to weigh Zarian's credibility.

[00:00:47] Speaker 01:
That prior statement was hearsay because it was unsworn, and so it was only admissible for the jury to judge the credibility of the declarant himself, Zarian.

[00:00:59] Speaker 01:
It was not admissible to support or impeach any other witness, and it was not admissible to prove who was present or what happened at the shooting.

[00:01:09] Speaker 01:
Again, the government agrees the district court erred by not giving that limiting instruction.

[00:01:14] Speaker 01:
And the government admits that absent that limiting instruction, it's at least possible that jurors may have used Zarian's prior statements as substantive evidence.

[00:01:26] Speaker 01:
So how valuable were those statements to the government?

[00:01:31] Speaker 01:
This is familiar territory to this court just two years ago in McGirt.

[00:01:37] Speaker 01:
This court recognized that the use of prior inconsistent statements as substantive evidence can be critical for the party that bears the burden of persuasion, such as the government in a criminal case stuck with a turncoat witness who refuses to implicate the defendant at trial.

[00:01:57] Speaker 01:
This court recognized that in McGirt, and that's exactly what we have here.

[00:02:01] Speaker 03:
Well, I don't think that was the message of McGirt, really.

[00:02:07] Speaker 03:
The opinion spends a lot of time pointing out that in general, violating this standard doesn't affect trials.

[00:02:17] Speaker 03:
That's why all the evidentiary experts didn't want to require the fact that the prior statement had been under oath.

[00:02:28] Speaker 03:
And so I thought the opinion tried to be very careful about saying why McGirt

[00:02:37] Speaker 03:
was an outlier.

[00:02:38] Speaker 03:
There were lots of reasons.

[00:02:41] Speaker 03:
So you can't just say, well McGirt says you can reverse on this ground.

[00:02:48] Speaker 03:
I think the message was you better have something really specific.

[00:02:53] Speaker 03:
And here, if they don't believe, I'm going to get the names wrong.

[00:02:59] Speaker 01:
Our client is Giante, and the government's witness is Chase Lewis.

[00:03:03] Speaker 03:
Yes, but the one who made the prior statement was... That would be Zerion, our client's brother.

[00:03:08] Speaker 03:
If you don't believe Zerion's testimony because he's impeached, how's the jury going to believe your client's brother?

[00:03:19] Speaker 01:
Well, the jury doesn't have to believe our client.

[00:03:21] Speaker 01:
What the jury has to do is decide whether the government has borne its burden beyond a reasonable doubt to prove our client's presence.

[00:03:28] Speaker 01:
So initially, you know, the government,

[00:03:32] Speaker 01:
Our client has the presumption of innocence.

[00:03:34] Speaker 01:
The government's got to get the jury all the way down here, beyond a reasonable doubt.

[00:03:38] Speaker 03:
And initially, they have... Does that argument work every time this rule is violated?

[00:03:46] Speaker 01:
No, not every time, because not every prior statement is going to go to the core question in the case, which is whether our client participated.

[00:03:56] Speaker 01:
Not every case is going to involve a single, the government having, without

[00:04:02] Speaker 01:
Zerion's statement as substantive evidence, the government only has one direct eyewitness to the shooting who says our client was there.

[00:04:11] Speaker 01:
Not every case is going to involve a lot of circumstantial evidence that just doesn't seal the deal for the government.

[00:04:16] Speaker 01:
In fact, this court has said in other cases that when the government relies on circumstantial evidence, it's easier to tip the scales into prejudice.

[00:04:28] Speaker 01:
Not every other case is going to have the government

[00:04:32] Speaker 01:
telling the jurors during closing argument that they have presented everything that they believe happened and that the jury should consider all the evidence and jury instructions telling the jurors that they are permitted to draw such reasonable inferences from the testimony as they feel are justified, which again encourages the jury to use Zerion's statement as substantive

[00:04:56] Speaker 01:
evidence, not just to bolster Chase, but as an additional eyewitness testimony.

[00:05:02] Speaker 01:
That's what the government needed here, because Chase was not that reliable.

[00:05:06] Speaker 01:
He had the same credibility problems that cooperating witnesses always have.

[00:05:14] Speaker 00:
Did the government, in their closing argument, say, you heard Mr. Lewis and you heard the prior statement of Zarian

[00:05:27] Speaker 00:
saying that he was there?

[00:05:29] Speaker 01:
The government did rely on Zarian's statement.

[00:05:33] Speaker 01:
And if you look at that section of the argument with blinders on, it might be just to impeach.

[00:05:40] Speaker 01:
In that moment, they're talking about Zarian's reliability.

[00:05:42] Speaker 01:
But they also, when they are telling the jurors that they ought to believe Chase Lewis, they said, you have to decide whether to believe Chase Lewis's version of events and all the evidence that the government has presented to you, that evidence that the government says the government

[00:05:57] Speaker 01:
uh... presented in meticulous thorough detail exactly what they believe happened so uh... on on the whole with the government talking about it so that's so what i said the government didn't say that i don't think that was the case they didn't they didn't ever come up and say you should consider the prayer statement of zarian they did not but they also did not say you should not consider the prior statements area for any other purpose and this limited purpose but it's because they didn't say it at all

[00:06:25] Speaker 00:
They didn't say he was a liar.

[00:06:28] Speaker 00:
You can't believe what Zarian said.

[00:06:31] Speaker 00:
He's not telling the truth.

[00:06:33] Speaker 00:
You heard his prior statement.

[00:06:34] Speaker 01:
Well, they did say those things, yes.

[00:06:37] Speaker 01:
In their closing?

[00:06:38] Speaker 01:
Yes, they argued about the prior statement.

[00:06:40] Speaker 01:
They argued that it was credible because of the back and forth between Zarian and the Detective Blackmun.

[00:06:47] Speaker 01:
And remember, of course, that prior statement was the last piece of evidence the government put on.

[00:06:52] Speaker 01:
an audio recording that was over an hour long.

[00:06:55] Speaker 01:
They even took a break in the middle of it.

[00:06:56] Speaker 01:
It was so long.

[00:06:57] Speaker 02:
Well, it was put on with the consent of the defendant.

[00:07:00] Speaker 01:
Right.

[00:07:00] Speaker 01:
We're not arguing about the admissibility of it.

[00:07:02] Speaker 01:
We're really just arguing here.

[00:07:04] Speaker 02:
Well, why did you even permit it?

[00:07:06] Speaker 01:
I can't tell your honor why because probably, I don't know why.

[00:07:12] Speaker 01:
There's no strategic benefit to our client to having it in.

[00:07:16] Speaker 01:
But we know they were allowed to use it to impeach Zerion.

[00:07:20] Speaker 03:
And the only problem was... You're not challenging that.

[00:07:24] Speaker 01:
No, no, no.

[00:07:24] Speaker 01:
We're not challenging that.

[00:07:25] Speaker 01:
Right.

[00:07:26] Speaker 01:
We're only challenging the district court's refusal to limit the jury's consideration of it to its weighing of Zerion's credibility.

[00:07:36] Speaker 02:
Well, everybody sort of concedes that was error.

[00:07:38] Speaker 01:
Yes.

[00:07:39] Speaker 01:
Yes.

[00:07:39] Speaker 02:
But why isn't it just harmless error?

[00:07:42] Speaker 01:
Well.

[00:07:43] Speaker 02:
Because there was a ton of other evidence.

[00:07:46] Speaker 02:
Bullets were flying everywhere.

[00:07:47] Speaker 02:
It was a family outing almost.

[00:07:50] Speaker 01:
There were a lot of bullets and there was a lot of physical evidence that put Gionte's gun

[00:07:57] Speaker 01:
at the shooting, but not Giante himself.

[00:08:02] Speaker 01:
Well, his brother testified that his brother used the gun.

[00:08:05] Speaker 02:
That's what I say, it's a family outing and there was plenty of evidence to show what they were doing.

[00:08:11] Speaker 01:
I hope that Your Honors will read the reply brief carefully as I walk through the circumstantial evidence and explain how it is also consistent with Giante's

[00:08:20] Speaker 01:
alibi, and it is circumstantial evidence.

[00:08:22] Speaker 01:
The only direct eyewitness who puts Giante there is a cooperating witness who is trying to get as much out of his agreement as he can get because he is still awaiting his own sentencing.

[00:08:34] Speaker 00:
What was the testimony that he wasn't there?

[00:08:37] Speaker 00:
Aside from Zarian, what was the testimony that he wasn't there?

[00:08:41] Speaker 01:
It was his own testimony.

[00:08:43] Speaker 01:
It was his own testimony.

[00:08:44] Speaker 01:
So if the jurors have a limiting instruction, they might

[00:08:48] Speaker 01:
just very easily say, all right, we're just going to take Zarian out of the picture.

[00:08:52] Speaker 01:
So what do we have left in terms of people who actually know what happened that night?

[00:08:55] Speaker 01:
We have Chase Lewis.

[00:08:56] Speaker 01:
He has credibility problems.

[00:08:58] Speaker 01:
We have Gionte Butler.

[00:08:59] Speaker 01:
He obviously has an interest in testifying about his alibi.

[00:09:03] Speaker 03:
I don't think the analysis is that because Zarian was impeached, we just take him out of the picture.

[00:09:09] Speaker 03:
I think you say the person who gave the identical account was a liar.

[00:09:18] Speaker 03:
And that's worth using.

[00:09:22] Speaker 03:
Can't that be used to impeach Deontay?

[00:09:25] Speaker 01:
Well, what we're doing here is we're trying to figure out how the, yes, what would the jury have done?

[00:09:30] Speaker 01:
And I've suggested one scenario and your honor has suggested another scenario.

[00:09:33] Speaker 01:
And like this court noted in McGirt, it's always risky when we're trying to guess how the jury would have handled evidence with or without a certain instruction.

[00:09:43] Speaker 01:
But it's the government that bears that risk.

[00:09:45] Speaker 01:
It's the government that has to convince this court

[00:09:48] Speaker 01:
that the error here did not influence the jurors' deliberations.

[00:09:53] Speaker 03:
Let me ask in terms of corroboration, because the cooperating witness, there was some good corroboration about that with the phone, when the phone was used.

[00:10:07] Speaker 00:
Sure.

[00:10:08] Speaker 03:
And one thing that didn't get a lot of attention, I didn't think that interested me, was when you look at the video,

[00:10:15] Speaker 03:
It looks like there are four people shooting.

[00:10:19] Speaker 03:
And that would have to mean that Deontay was one of them.

[00:10:23] Speaker 01:
It doesn't have to mean that, because even Chase doesn't know how many people are in the other car that Donnell Hall was in.

[00:10:31] Speaker 01:
And Chase does not say whether or not the driver of that other car got out.

[00:10:37] Speaker 01:
And it was Arian testified that it was another person in that car who was the fourth person.

[00:10:44] Speaker 03:
OK, good.

[00:10:45] Speaker 01:
So again, I just wanted to emphasize that we're also arguing cumulative error, and I'll make a quick point about the Dottie Newsom testimony about the neighbor, the elderly neighbor who nearly got hit by a bullet.

[00:11:03] Speaker 01:
In doing our 403 calculation here, the danger of unfair prejudice doesn't have to be very high to exclude this evidence, and that's because we measure

[00:11:14] Speaker 01:
We measure the unfair prejudice in comparison to the probative value of the testimony, which is really miniscule.

[00:11:19] Speaker 01:
I think the government is reaching sounding sides as a case that points out where evidence adds little, it will be excluded more readily.

[00:11:28] Speaker 01:
So here, the probative value of her testimony is very small.

[00:11:32] Speaker 02:
The prejudicial... Well, you say it was very small.

[00:11:35] Speaker 02:
It seemed to me that it put a very clear

[00:11:42] Speaker 02:
record of what was happening at the time.

[00:11:45] Speaker 02:
Bullets were flying everywhere.

[00:11:48] Speaker 02:
She was scared out of her wits.

[00:11:50] Speaker 02:
A bullet came right through her house.

[00:11:52] Speaker 02:
The judge made a discretionary call under 403 that that was sufficient.

[00:11:59] Speaker 02:
Now, you're telling us that we can't heed the judge's discretionary decision?

[00:12:04] Speaker 01:
Right.

[00:12:04] Speaker 01:
And you can't heat it here because that probative value is very small.

[00:12:10] Speaker 01:
There are seven law enforcement officers who were victims, who were present, who testified about all those bullets flying.

[00:12:17] Speaker 01:
The fact that this woman down the street... So there was plenty of evidence then?

[00:12:21] Speaker 01:
There's plenty.

[00:12:22] Speaker 02:
Tons of evidence.

[00:12:24] Speaker 01:
Yeah, tons of evidence that bullets are flying.

[00:12:26] Speaker 03:
Not that our client is... She didn't affect it at all.

[00:12:29] Speaker 03:
She's the only one without an interest, isn't that?

[00:12:32] Speaker 01:
She's the only one with what?

[00:12:33] Speaker 03:
Without an interest.

[00:12:34] Speaker 03:
She has no personal interest.

[00:12:35] Speaker 03:
She's not trying to get somebody or defend somebody.

[00:12:37] Speaker 03:
She's just a neighbor.

[00:12:39] Speaker 01:
She probably would be very happy to have this young man who the

[00:12:42] Speaker 01:
government believes is a gang member participating in these gang wars in her neighborhood.

[00:12:47] Speaker 01:
She'd probably be very happy to have him locked up.

[00:12:49] Speaker 01:
But I understand what your honor is saying.

[00:12:52] Speaker 01:
And the law enforcement officers were not really tested.

[00:12:55] Speaker 01:
They're not impeached based on their interest in convicting our client.

[00:13:01] Speaker 01:
They're impeached on their

[00:13:03] Speaker 01:
inability to recognize or identify anyone who was shooting at that.

[00:13:07] Speaker 01:
So again, I just want to make it clear that I don't have to prove that her testimony was prejudicial, just that it was the danger that it would be prejudicial was higher than its value.

[00:13:20] Speaker 01:
Substantially higher.

[00:13:21] Speaker 01:
Yes, and it was.

[00:13:22] Speaker 01:
And if I may save my time for rebuttal.

[00:13:24] Speaker 01:
Thank you.

[00:13:32] Speaker 04:
Good morning, Your Honors.

[00:13:33] Speaker 04:
Brian Clark for the United States.

[00:13:35] Speaker 04:
May I please the Court?

[00:13:37] Speaker 04:
Gente Butler's convictions should be affirmed.

[00:13:42] Speaker 04:
Picking up with the first issue regarding the limiting instruction, I agree with Ms.

[00:13:49] Speaker 04:
Nichols that the question is how valuable were Zarian's statements as substantive evidence to the jury in this case?

[00:13:57] Speaker 04:
And the answer is,

[00:13:58] Speaker 04:
not very valuable at all.

[00:14:00] Speaker 04:
And the reason is because, as you all have pointed out, there was ample other evidence.

[00:14:06] Speaker 04:
We have Chase Lewis's eyewitness testimony that was corroborated by a lot of circumstantial evidence that indicated that his testimony was truthful.

[00:14:18] Speaker 04:
And by the time Zerion's prior inconsistent statement is played for the jury,

[00:14:25] Speaker 04:
That is just one drop in an already full bucket of evidence that goes to show that Giante was one of the shooters.

[00:14:35] Speaker 04:
So that doesn't add much and certainly doesn't satisfy the test for showing that his testimony as substantive evidence would have substantially swayed the jury's verdict.

[00:14:49] Speaker 04:
The second point that the defendant has made is that Zerion's prior and consistent statement as substantive evidence would have gone to impeach Giante's testimony.

[00:15:02] Speaker 04:
But Giante's version of events was the same as Zerion's version of events.

[00:15:07] Speaker 04:
And the jury properly considered Zerion's prior statement as impeaching Zerion's testimony at trial.

[00:15:15] Speaker 04:
And so in effect, Zerion's prior and consistent statement

[00:15:18] Speaker 04:
could probably be used to impeach the Butler Brothers version of events.

[00:15:22] Speaker 04:
And so that adds very little, if anything, to the analysis for the jury.

[00:15:31] Speaker 04:
And the difference between having Zerion's prior and consistent statement before the jury as simply impeaching his own testimony as opposed to substantive evidence is really marginal and certainly didn't substantially sway the jury's verdict.

[00:15:49] Speaker 04:
And as you say, Judge Hartz, I agree with you that McGirt was an outlier.

[00:15:56] Speaker 04:
Your Honor, in writing the opinion, did take pains to show that it was an outlier, that there were

[00:16:00] Speaker 04:
a lot of different things that lined up in the defendant's favor in that case, and that simply is not the case here.

[00:16:08] Speaker 04:
For one thing, in McGirt, this court's starting point was that the government had a weak case.

[00:16:13] Speaker 04:
The reason the government had a weak case in McGirt was because it relied on three witnesses who had given inconsistent testimony in different trials, and then they were all impeached.

[00:16:24] Speaker 04:
But here, the government's case was strong.

[00:16:26] Speaker 04:
We had an eyewitness.

[00:16:28] Speaker 04:
That eyewitness, Chase Lewis's testimony, was supported by ample corroborating evidence.

[00:16:33] Speaker 04:
We had Snapchat videos.

[00:16:35] Speaker 04:
We had DNA evidence, ballistics evidence, and all the rest showing that Chase Lewis's testimony was accurate and that Giante was one of the shooters.

[00:16:49] Speaker 04:
The second difference between this case and McGirt is that in McGirt, the defendant had a

[00:16:54] Speaker 04:
a plausible, coherent defense.

[00:16:57] Speaker 04:
But here, Giante's defense, which was based on the Butler brothers' testimony, resulted in them both getting sentencing enhancements for obstruction of justice because the district court found that they both lied on the stand and saying that Giante wasn't a participant.

[00:17:14] Speaker 04:
And that should give this court some indication of how believable that story was about how Giante, for some reason, gave his gun to a cousin

[00:17:24] Speaker 04:
you know, at his parents' house and somehow his brother knew how to, where to go find it, even though that's not where the gun was normally kept.

[00:17:34] Speaker 04:
There are all sorts of holes in the defense.

[00:17:38] Speaker 00:
Was that all brought out on cross-examination?

[00:17:42] Speaker 04:
Yes, cross-examination of the Butler brothers.

[00:17:46] Speaker 04:
Right.

[00:17:47] Speaker 04:
They were asked about, right, the holes in their

[00:17:51] Speaker 04:
in their story, and it was all brought out in closing as well.

[00:17:55] Speaker 04:
And that was a big part of the prosecution, was this sort of competing versions of events in the prosecution pointing out that the Butler Brothers' version of events simply didn't make sense.

[00:18:10] Speaker 04:
And to your question, Judge Carson, about closing,

[00:18:15] Speaker 04:
discussion of whether about Zerion's prior inconsistent statement.

[00:18:20] Speaker 04:
The prosecutor did say that Zerion's prior statement was credible, but the prosecutor discussed that statement in terms of acting as impeachment of Zerion's trial testimony that I recall or could find the prosecutor didn't get up and say, and I think Ms.

[00:18:41] Speaker 04:
Nichols acknowledged this,

[00:18:43] Speaker 04:
didn't get up and say, let's take a look at Zarian's prior statement and impeach Giante with it or support Chase's testimony with it.

[00:18:50] Speaker 04:
That's not, that I recall, what the prosecutor did.

[00:18:54] Speaker 04:
And it's also important to note that this evidence came in in the government's rebuttal case.

[00:18:59] Speaker 04:
There's several statements in the briefing that the government had to have this evidence, that it was essential to the case and core to the dispute.

[00:19:09] Speaker 04:
But that's just not accurate.

[00:19:11] Speaker 04:
By the time this statement gets played, the government has already rested.

[00:19:15] Speaker 04:
The government has already made its case, and amply so.

[00:19:23] Speaker 04:
And then with respect to the circumstantial evidence being consistent with the Butler Brothers' version of events as well, that's not accurate either.

[00:19:34] Speaker 04:
I mean, Giante testified that he wasn't a member of the gang.

[00:19:39] Speaker 04:
a member of a gang, but the testimony overwhelmingly was that he was a member of the gang.

[00:19:44] Speaker 04:
Not only that, but he was the target of the shooting at the Butler's house.

[00:19:50] Speaker 04:
He testified, Giante did, that he wasn't bothered by the shooting at his parents' house and that he was fine just staying in North Kansas City and not doing anything about it.

[00:20:01] Speaker 04:
But we also have testimony that he was in a gang war with Isaiah Shields, who just shot up his parents' house

[00:20:09] Speaker 04:
sent his cousin and fellow gang member, Tamani Boykin, to the hospital.

[00:20:14] Speaker 04:
So it's not plausible that Giante Butler just didn't feel like he had any dog in the fight.

[00:20:20] Speaker 04:
And then another point is that Giante, in his post-arrest statement, lied about the gun.

[00:20:28] Speaker 04:
At that point, he knew that he had to distance himself from the gun because he knew that he'd used the gun in the shooting a week earlier.

[00:20:35] Speaker 04:
So what did he do?

[00:20:36] Speaker 04:
He lied to Detective Blackman.

[00:20:38] Speaker 04:
saying that he didn't get the gun until afterward.

[00:20:40] Speaker 04:
That type of demonstrably false exculpatory statement is circumstantial evidence of sort of knowledge of guilt that would have told the jury that wait a minute, Giante's story isn't adding up and really isn't consistent with all the evidence that the government had presented.

[00:20:59] Speaker 04:
And then finally, I think that Giante's testimony that he

[00:21:04] Speaker 04:
gave up his gun, which was really his only form of protection right after his parents' house got shut up, is not plausible at all.

[00:21:12] Speaker 04:
The Snapchat videos show he had that gun all the time.

[00:21:16] Speaker 04:
He had it earlier that day when he was shooting Snapchat videos with Jace Lewis.

[00:21:21] Speaker 04:
He had it a week later in his pants when he was arrested.

[00:21:24] Speaker 04:
He took it to Chipotle to pick up food.

[00:21:26] Speaker 04:
He always had it.

[00:21:27] Speaker 04:
So the idea that he gave the gun

[00:21:30] Speaker 04:
to a cousin wasn't plausible either.

[00:21:33] Speaker 04:
And that's what the district court found.

[00:21:35] Speaker 04:
Now, with respect to Ms.

[00:21:36] Speaker 04:
Newsom and her testimony, to the 403 test, I think it's important to remember that excluding evidence under Rule 403 is an extraordinary remedy that is supposed to be used rarely.

[00:21:51] Speaker 04:
And when conducting the balancing, the court is required to assume the maximum

[00:21:57] Speaker 04:
probative value and the minimum prejudicial value.

[00:22:01] Speaker 04:
And here, Ms.

[00:22:02] Speaker 04:
Newsome's testimony had probative value.

[00:22:05] Speaker 04:
She was the only neighbor who testified.

[00:22:08] Speaker 04:
The law enforcement officers who testified were impeached on cross-examination for having some kind of vested interest in the investigation, I suppose, because of a bond between law enforcement officers

[00:22:22] Speaker 04:
Now, I know in reply, Giante argues that, no, the impeachment was really just that they were too distracted.

[00:22:29] Speaker 04:
The officers couldn't see who was shooting at them.

[00:22:32] Speaker 04:
But in context, it's not entirely clear to me what that line of impeachment questioning was for.

[00:22:38] Speaker 04:
But it certainly was to call into question the motives or the objectivity of those law enforcement officers.

[00:22:45] Speaker 04:
So calling Ms.

[00:22:45] Speaker 04:
Newsome to give her eyewitness account made sense, because she wasn't subject

[00:22:51] Speaker 04:
to impeachment for those reasons.

[00:22:54] Speaker 04:
The other point is that Ms.

[00:22:55] Speaker 04:
Newsom was a longtime resident.

[00:22:57] Speaker 04:
She was able to testify that numerous other shootings had occurred over the years.

[00:23:02] Speaker 04:
And that was really important because it helped the government explain why there were old shell casings on the scene, why there were more shell casings than what matched the guns that were used that Chase Lewis testified about.

[00:23:14] Speaker 04:
And that was an important piece of the narrative to be able to explain to the jury why the evidence was.

[00:23:21] Speaker 04:
what it was.

[00:23:22] Speaker 04:
And finally, I think it's important to note that just because there's a crime scene investigator or a law enforcement officer that can testify to a particular point doesn't mean that the government is then precluded from calling someone who has firsthand testimony about it.

[00:23:41] Speaker 04:
So just because a law enforcement officer could say, yeah, this shields his house,

[00:23:46] Speaker 04:
is one of the most shot up houses in Kansas City, Kansas, doesn't mean that the government has been precluded from calling Ms.

[00:23:52] Speaker 04:
Newsome, who was an eyewitness or had firsthand testimony that that was true.

[00:23:58] Speaker 04:
And so the idea that the prejudicial value substantially outweighs the probative value of her testimony, I think, just isn't there.

[00:24:10] Speaker 04:
And certainly, in any event, admission of the testimony was harmless.

[00:24:16] Speaker 04:
Unless the court has any questions, I don't believe Ms.

[00:24:23] Speaker 04:
Nichols touched on the closing arguments.

[00:24:25] Speaker 04:
And I think the briefing is sufficient on that to show that none of the prosecutor's statements in closing were improper and certainly not quite improper.

[00:24:35] Speaker 03:
We'll talk about those.

[00:24:37] Speaker 03:
We put on all the evidence we believe was true.

[00:24:40] Speaker 03:
That's improper, is it not?

[00:24:43] Speaker 04:
No, it's not improper in context.

[00:24:45] Speaker 04:
And that's one of the rules that this court applies when assessing statements of a prosecutor in closing, is you have to look at them in context.

[00:24:55] Speaker 04:
What the prosecutor was saying there was just explaining what the evidence was that the government had produced.

[00:25:02] Speaker 03:
And that... But he said, the prosecutor said, we believed that.

[00:25:08] Speaker 03:
He put on the evidence, we believed.

[00:25:10] Speaker 03:
Well, not that- That's not vouching for the evidence?

[00:25:14] Speaker 04:
Right.

[00:25:15] Speaker 04:
So what the prosecutor said, as I recall, was not that we put on the evidence that we believe, that all the witnesses, for example, were telling the truth.

[00:25:25] Speaker 04:
What she said was, we laid out for you what we believe happened.

[00:25:31] Speaker 04:
And here is the evidence that we think supports what we believe happened.

[00:25:36] Speaker 04:
And she walks through Chase Lewis's testimony and the

[00:25:39] Speaker 04:
DNA and the ballistics and all the rest, and says to the jury, you're going to have to decide whether you agree with the government's version of events.

[00:25:48] Speaker 04:
And so, vouching, there are two ways to vouch.

[00:25:51] Speaker 04:
The first is if a prosecutor explicitly states that a witness is telling the truth, and the second way is implicitly if the prosecutor indicates that a witness is telling the truth because of something the prosecutor knows

[00:26:08] Speaker 04:
from out of court that wasn't shown or introduced at the trial.

[00:26:13] Speaker 04:
And that statement that you referenced is neither one of those.

[00:26:16] Speaker 04:
It was just sort of an overarching statement.

[00:26:18] Speaker 04:
We put on the evidence that tells you the story, what we believe happened, and here's that evidence.

[00:26:24] Speaker 04:
You need to decide if you agree with us.

[00:26:27] Speaker 03:
What about the statement that would he lie about that?

[00:26:30] Speaker 03:
No, he wouldn't.

[00:26:32] Speaker 04:
Okay, so I think that's an important point, and I'm glad you asked, because that he wouldn't quote is taken really out of context in Giante's briefing.

[00:26:43] Speaker 04:
And the reason for that is when you look at it in context, and again, it's a really important aspect of this court's analysis.

[00:26:49] Speaker 04:
You can't just pluck a statement out.

[00:26:52] Speaker 04:
You have to look at it in context.

[00:26:54] Speaker 04:
The prosecutor was talking about how Chase Lewis's cooperation agreement actually gave him an incentive to tell the truth.

[00:27:04] Speaker 04:
Not that he was telling the truth, but that his cooperation agreement gave him an incentive to do so.

[00:27:11] Speaker 04:
And the case to support that is this court's decision in Bowie.

[00:27:15] Speaker 04:
And just to unpack that a little bit, in context, what the prosecutor was saying was, you just heard defense counsel get up here and tell you,

[00:27:24] Speaker 04:
that Chase Lewis is lying because he was trying to receive a benefit under his cooperation agreement.

[00:27:30] Speaker 04:
But his cooperation agreement, under his cooperation agreement, he would have gotten no benefit if he was found to have been lying about Giante.

[00:27:40] Speaker 04:
And then the prosecutor posed a rhetorical question.

[00:27:43] Speaker 04:
Why would he roll the dice?

[00:27:45] Speaker 04:
Why would Chase Lewis roll the dice by lying about Giante?

[00:27:50] Speaker 04:
Question mark.

[00:27:51] Speaker 04:
He wouldn't, period.

[00:27:52] Speaker 04:
So the he wouldn't refers to why would he roll the dice?

[00:27:55] Speaker 03:
Why would he take the risk?

[00:28:00] Speaker 03:
I realize in the heat of a trial and all, your expression may not be the most precise or proper, but why couldn't he have just stopped and said, why wouldn't, why would he?

[00:28:13] Speaker 03:
Why does he have to answer the question and say, essentially, he was telling the truth?

[00:28:19] Speaker 04:
So two responses.

[00:28:20] Speaker 04:
The first is, sure, and I see my time is up, I apologize.

[00:28:23] Speaker 03:
He can answer briefly.

[00:28:25] Speaker 04:
The first is, to be sure, to your point, that the prosecutor could have stopped at the end of the rhetorical question, but she didn't.

[00:28:36] Speaker 04:
And as you say, it's in the heat of trial.

[00:28:38] Speaker 04:
This is in rebuttal.

[00:28:39] Speaker 04:
It's responding to defense counsel's arguments.

[00:28:42] Speaker 04:
For all those reasons, we think it's not improper and certainly not plainly improper.

[00:28:47] Speaker 04:
But with respect to the he wouldn't, the he wouldn't, I respectfully submit, isn't telling the jury.

[00:28:53] Speaker 04:
I think he wouldn't because I think Chase Lewis is telling the truth.

[00:29:00] Speaker 04:
What the prosecutor is trying to get across to the jury is he wouldn't lie because then he would lose the benefit of the cooperation agreement.

[00:29:09] Speaker 04:
And that is proper under Bowie.

[00:29:15] Speaker 01:
Thank you.

[00:29:15] Speaker 01:
I just want to clarify.

[00:29:17] Speaker 01:
the standards here for conceded error.

[00:29:21] Speaker 01:
The government has conceded the instructional error.

[00:29:24] Speaker 01:
And that means that the government bears a stringent burden of convincing this court that there's no grave doubt about whether that error influenced the jury's verdict.

[00:29:37] Speaker 01:
And the point I want to make, actually, is that it's not a sufficiency analysis.

[00:29:41] Speaker 01:
The question is not taking away the error.

[00:29:45] Speaker 01:
Was there enough evidence left to convict?

[00:29:47] Speaker 01:
The question is about the relationship of the error to what the jury had to decide.

[00:29:52] Speaker 01:
And here the error goes directly to, it provides the jury with a substantive direct eyewitness to the only contested issue in the case.

[00:30:02] Speaker 01:
Nobody contested that there was a shooting, that there were bullets flying everywhere.

[00:30:07] Speaker 01:
Nobody contested that it was a revenge shooting.

[00:30:10] Speaker 01:
The only thing Giante contested was his presence and participation in that shooting.

[00:30:16] Speaker 01:
I don't know why I'm causing this feedback here.

[00:30:18] Speaker 01:
I apologize for that.

[00:30:20] Speaker 01:
So I just want to make sure that we're clear on where we are on this harm analysis.

[00:30:31] Speaker 01:
And I think I'll leave it at that if the court doesn't have any more questions.

[00:30:34] Speaker 03:
Thank you, counsel.

[00:30:35] Speaker 01:
Thank you.

[00:30:37] Speaker 03:
Case is submitted.