[00:00:06] Speaker 03:
Please be seated.

[00:00:13] Speaker 03:
We have five cases on the docket this morning, but we'll only hear oral argument in four out of the five.

[00:00:22] Speaker 03:
Just for housekeeping purposes, we'll take a short break after the second case, which is 24-1387.

[00:00:31] Speaker 03:
United States versus Hutu.

[00:00:34] Speaker 03:
With that said, in the first case this morning, 24-7077, United States versus Cole.

[00:00:41] Speaker 03:
Council for Appellant, if you'll make your appearance and proceed, please.

[00:01:06] Speaker 05:
May it please the court, my honorable opponent, I'm Blaine Myrie, counsel for defendant appellate Brett Cole.

[00:01:15] Speaker 05:
The district court permitted the government to introduce evidence of other acts of child molestation that occurred when Mr. Cole was a juvenile.

[00:01:26] Speaker 05:
The court admitted that under federal rule of evidence 414.

[00:01:31] Speaker 05:
We contend that that was reversible error because Mr. Cole was a juvenile at the time and therefore the acts did not meet the requirements of the rule that it be a crime under federal law or under state law.

[00:01:47] Speaker 00:
Does the Federal Juvenile Delinquency Act eliminate the criminality of conduct by

[00:01:58] Speaker 00:
a minor or does it simply say that minor shall not be punished in certain ways?

[00:02:06] Speaker 05:
It distinguishes between juvenile delinquency on the one hand and crimes on the other and the definition section 531

[00:02:19] Speaker 05:
describes a juvenile delinquency as the violation of a law.

[00:02:23] Speaker 05:
So it is a violation of the law committed by a person prior to his 18th birthday.

[00:02:30] Speaker 00:
And if it's a violation of a criminal law, a law that is in our criminal books, isn't that the definition of a criminal violation?

[00:02:41] Speaker 05:
No, because the next part of the definition of juvenile delinquency says, act prior to his 18th birthday, which would have been a crime if committed by an adult.

[00:02:56] Speaker 05:
So the use of the conditional tense there changes what a crime is, and for a crime

[00:03:07] Speaker 05:
to occur, it must be committed by an adult, someone over 18, or it must be something where the juvenile has been adjudged to be tried as an adult and run through an adult criminal prosecution.

[00:03:22] Speaker 04:
I mean, doesn't that last statement you just made cut against your whole argument, though?

[00:03:28] Speaker 04:
Because if it's capable, if a juvenile is capable of being charged as an adult,

[00:03:35] Speaker 04:
for this act?

[00:03:37] Speaker 04:
I mean, doesn't it then by definition meet the definition of crime and the rule?

[00:03:42] Speaker 05:
No, because the presumption is that it is an act of juvenile delinquency unless and until the criminal justice process steps in and says, no, we're going to elevate this to an adult criminal prosecution.

[00:03:59] Speaker 05:
There are cases where that occurs.

[00:04:03] Speaker 04:
What about cases that were, let's just talk about cases that were not charged, prior acts that are arguably criminal but not adjudicated to be so.

[00:04:16] Speaker 04:
I mean, we can consider those, but they've never actually been adjudicated to be a crime.

[00:04:24] Speaker 04:
They've never definitionally become a crime, have they?

[00:04:29] Speaker 05:
No, but the presumption is that when someone is under 18, it's an act of juvenile delinquency unless a statute provides otherwise or unless the person has been charged and that charge has been elevated from an act of juvenile delinquency to an actual adult criminal prosecution.

[00:04:47] Speaker 05:
We don't have that here.

[00:04:48] Speaker 04:
What do you have that would argue in favor of this?

[00:04:54] Speaker 04:
I look at the rule, and I think this rule uses the word crime to describe conduct, not the technical nomenclature of whether something has been defined elsewhere in the code as a crime or an act of juvenile delinquency.

[00:05:10] Speaker 04:
What do you have that says when they were drafting the rule that they were not thinking about the conduct as opposed to technical nomenclature?

[00:05:19] Speaker 05:
Well, it's the plain language of the rule.

[00:05:23] Speaker 05:
And it's an easy fix if Congress or the Supreme Court wanted to fix it.

[00:05:28] Speaker 04:
I mean, it is plain language.

[00:05:29] Speaker 05:
There are definitions abound that define this conduct as criminal.

[00:05:37] Speaker 05:
Crime under federal law or under state law.

[00:05:40] Speaker 05:
That requires a specific federal statute or a specific state statute that the other act

[00:05:49] Speaker 05:
supposedly violated.

[00:05:52] Speaker 03:
You accept, however, that crime is used in Rule 414 doesn't have to be a crime for which one was adjudicated to convict it, to use that word.

[00:06:04] Speaker 03:
We're not talking about conviction.

[00:06:06] Speaker 05:
No, we're not talking about that.

[00:06:07] Speaker 05:
It doesn't have to be a prior conviction or a prior charge.

[00:06:10] Speaker 05:
It just has to be an act.

[00:06:12] Speaker 05:
that constitutes factually and legally a crime under either federal law or under state law.

[00:06:24] Speaker 03:
Let me turn your attention to Sweeney.

[00:06:27] Speaker 03:
In this case, on its face, Sweeney would seem to help you.

[00:06:33] Speaker 03:
But one thing that I'm puzzled by is in Sweeney, the bankruptcy discharge statute that was used as sort of the statute in question to determine where they played off the term crime and the interplay between that and the Federal Juvenile Delinquency Act, in that case,

[00:06:54] Speaker 03:
It spoke of crime of conviction.

[00:06:57] Speaker 03:
It did not speak of crime, apparently, in the sense of Rule 414.

[00:07:03] Speaker 03:
And what that raises as a question for me is whether the result in Sweeney really would map onto this situation at all.

[00:07:12] Speaker 03:
In other words, the court in Sweeney took the position that there was the Juvenile Delinquency Act spoke of, talked about, as we know, whether something would be classified as a crime or not, and therefore the

[00:07:28] Speaker 03:
The discharge provision was not operational because it wasn't a crime, but also in that discharge provision it was a crime of conviction, not just a crime in this instance.

[00:07:41] Speaker 03:
Do you follow where I'm going?

[00:07:44] Speaker 05:
I can try to.

[00:07:45] Speaker 05:
The issue in Sweeney was the restitution order that resulted from the juvenile charge, arson charge, for which the person who was 12 years old at the time was a judge, a juvenile delinquent, and ordered as part of that adjudication to pay a $90,000 restitution charge, declares bankruptcy as an adult,

[00:08:09] Speaker 05:
and has 85,000 remaining on that.

[00:08:12] Speaker 05:
And the Colorado Judicial Department says, well, that was a restitution order that resulted from the conviction for a crime.

[00:08:21] Speaker 05:
And this court said, no, it didn't.

[00:08:23] Speaker 05:
because it was an adjudication of the juvenile delinquency.

[00:08:28] Speaker 05:
It was part of the juvenile delinquency adjudication, not sentence conviction.

[00:08:36] Speaker 05:
So I don't think Sweeney cuts against us.

[00:08:39] Speaker 05:
It obviously is a fundamentally different case being a bankruptcy case.

[00:08:43] Speaker 03:
Well, not only is it a fundamentally different case being a bankruptcy case, but I guess what I was trying to get at, maybe inartfully, was the notion that

[00:08:51] Speaker 03:
In Sweeney, what you had was the notion of a, you had a conviction under a juvenile statute, okay, for a judge, a delinquent, and you had a statute that required a criminal conviction.

[00:09:05] Speaker 03:
And what I'm saying is in this instance, you don't have

[00:09:08] Speaker 03:
a statute that requires a criminal conviction, it could be criminal activity that would fall under federal or state law.

[00:09:16] Speaker 03:
And so why would not that criminal activity, that same criminal activity, if otherwise committed then by a juvenile, why wouldn't that same criminal activity be merged in a way that it could not in Sweeney?

[00:09:32] Speaker 03:
Because of the obstacle of a criminal conviction.

[00:09:35] Speaker 05:
Your Honor, I think it goes back to the plain language of Rule 414D2.

[00:09:42] Speaker 05:
It says a crime under federal law or under state law.

[00:09:47] Speaker 05:
Now, when you're talking about the prior acts of a defendant, you have to look at the specific

[00:09:54] Speaker 05:
If you look, for example, in the Willis case, there you had a defendant who argued that, didn't argue the argument we had, which is I was a juvenile at the time, but made a different type of argument, which was what I did was not a crime.

[00:10:07] Speaker 05:
This was, I think he described it as a teenaged, quote, make-out session.

[00:10:13] Speaker 05:
So factually that would not constitute a crime under federal law if it was just, you know, if it didn't meet the requirements of, I guess, either a state or federal statute, sexual assault statute.

[00:10:28] Speaker 05:
Here the difference is it is not a crime that the juvenile commits.

[00:10:36] Speaker 05:
It is an act of juvenile delinquency.

[00:10:38] Speaker 03:
It has not been classified.

[00:10:40] Speaker 03:
as a crime.

[00:10:41] Speaker 03:
I mean, this goes back to, I think Judge Ebell used the word criminal activity.

[00:10:46] Speaker 03:
And if you have criminal activity that would otherwise be a violation of federal or state law, but for the fact that it is a juvenile, then why is it not a crime

[00:11:00] Speaker 03:
under federal or state law, and the point that I was trying to at least get at was there is no impediment of a judification or conviction in Rule 414.

[00:11:12] Speaker 03:
So why are we talking about the substance of the offense, the substance of what is at play?

[00:11:19] Speaker 03:
And if certain acts, Act A would subject you to criminal liability under federal or state law,

[00:11:28] Speaker 03:
and then you get over into the juvenile context, and that same act would subject you to criminal liability under federal or state law, but for the fact that the decision is made not to transfer you to adult status so that you are a judge to delinquent, then why isn't that same substance, that same criminal activity at play in both instances?

[00:11:54] Speaker 05:
Because it's not criminal activity, it's juvenile delinquency activity.

[00:11:58] Speaker 03:
It hasn't been classified as a crime, but the same act has taken place, the same substance has been played.

[00:12:05] Speaker 05:
I would agree the same act takes place, but the plain language of the rule says crime under federal law.

[00:12:11] Speaker 05:
And it's our contention that an act of juvenile delinquency is not a crime under federal law based on 18503.

[00:12:18] Speaker 00:
What if you have a mentally incompetent defendant?

[00:12:25] Speaker 00:
and he commits a crime.

[00:12:27] Speaker 00:
Would you say, I'm sorry you did not commit a crime under federal or state law?

[00:12:33] Speaker 00:
Or would you say, you did commit a crime under federal or state law, but we are not going to hold you personally accountable for it.

[00:12:41] Speaker 00:
But that doesn't mean you didn't do a crime.

[00:12:44] Speaker 00:
Isn't that what we would say for a mentally incompetent?

[00:12:46] Speaker 00:
And that's a disability.

[00:12:48] Speaker 00:
Mental competence is a disability very similar to being a minor, being a disability from being sued for criminal activity.

[00:12:58] Speaker 05:
We don't impose criminal liability on the juvenile.

[00:13:00] Speaker 05:
We impose juvenile delinquency consequences.

[00:13:04] Speaker 05:
The incompetent defendant

[00:13:07] Speaker 05:
We don't try them.

[00:13:09] Speaker 05:
There can't be liability if the person is incompetent.

[00:13:13] Speaker 00:
I guess your time is getting short, but it seems to me you've got a couple of cases that are pretty big obstacles to get around.

[00:13:20] Speaker 00:
US v. Willis and US v. Brian, what do you have to say about those two cases?

[00:13:25] Speaker 05:
Well, Willis didn't make the argument we made.

[00:13:28] Speaker 05:
The argument there by the defendant was factually what I did wasn't a crime.

[00:13:33] Speaker 05:
In other words, it didn't constitute a sexual assault.

[00:13:37] Speaker 05:
And I think that argument would work for him if the facts lined up.

[00:13:42] Speaker 05:
So I don't think Willis is opposed to us.

[00:13:44] Speaker 05:
And Willis doesn't address the legal question we raise about 5031.

[00:13:49] Speaker 05:
And I'm drawing a blank on the Brian case, but if I recall, I don't think that addressed the 5031 issue either.

[00:13:59] Speaker 05:
I don't think any of these cases have addressed the specific argument that I raise here.

[00:14:03] Speaker 03:
And let me ask you this question about the interpretation of that phrase, federal or state law.

[00:14:09] Speaker 03:
If it contemplates that the activity would be one that would be a crime under federal or state law, and now I'm focusing on the state law piece, does that interpretation contemplate that admissibility could turn on the state where the offense takes place?

[00:14:27] Speaker 05:
Absolutely.

[00:14:27] Speaker 05:
Because under state law, it presumes that one of the elements of any crime is you have to be in the jurisdiction that makes it a crime.

[00:14:37] Speaker 05:
It's not a Colorado crime.

[00:14:39] Speaker 05:
to commit a robbery in Oklahoma.

[00:14:44] Speaker 05:
So I think it does matter.

[00:14:46] Speaker 05:
I'd like to reserve the balance of my time for rebuttal if there are no further questions.

[00:14:51] Speaker 03:
That's fine.

[00:15:15] Speaker 01:
Good morning, Your Honors.

[00:15:16] Speaker 01:
Good morning.

[00:15:16] Speaker 01:
Lisa Williams, representing the United States of America.

[00:15:20] Speaker 01:
Juveniles commit crimes.

[00:15:22] Speaker 01:
They don't commit some other act.

[00:15:24] Speaker 01:
They don't commit acts of delinquency.

[00:15:27] Speaker 01:
The behavior that lands them in court is criminal in nature.

[00:15:30] Speaker 01:
They commit violations of state or federal law.

[00:15:34] Speaker 01:
What the difference is is that they are not convicted of their criminal behavior.

[00:15:41] Speaker 01:
Instead, they are adjudicated delinquent.

[00:15:44] Speaker 01:
And that is the difference between adult and juvenile criminal process.

[00:15:51] Speaker 01:
But the underlying substance of what they do to land themselves in court is criminal in nature.

[00:15:59] Speaker 01:
Because of that, juvenile conduct is a crime.

[00:16:03] Speaker 03:
By the terms of the Federal Juvenile Delinquency Act, it uses language, and I was going to take the time to pull it up, but I'll just paraphrase, would be a crime.

[00:16:15] Speaker 03:
Well, that implies that it wasn't a crime because they're a juvenile.

[00:16:21] Speaker 03:
I mean, it would be a crime if they were transferred for adult prosecution.

[00:16:26] Speaker 03:
But it's not a crime because they're not being transferred for adult prosecution.

[00:16:30] Speaker 03:
So what do you do with the fact that the plain language of the statute suggests that it is not a crime?

[00:16:36] Speaker 01:
Well, Your Honor, I think you can read that would be as an is as well.

[00:16:39] Speaker 01:
It is a crime, except they are moved and adjudicated delinquent.

[00:16:45] Speaker 01:
The acts that they did to land themselves in court are crimes, except they are not 18.

[00:16:54] Speaker 03:
You can read the would-be as an is.

[00:16:58] Speaker 03:
So how does that work?

[00:17:00] Speaker 03:
Go ahead, please.

[00:17:01] Speaker 01:
So what you did would be a crime.

[00:17:04] Speaker 01:
What you did was a crime.

[00:17:06] Speaker 01:
What you did is a crime.

[00:17:08] Speaker 01:
But they're all different tenses of the two.

[00:17:11] Speaker 03:
Well, they are different tenses, but tenses have meaning.

[00:17:14] Speaker 03:
And I mean, would be suggests that it is not in that state now.

[00:17:18] Speaker 03:
I mean, because of some reason.

[00:17:21] Speaker 03:
It would be a crime, but it is not a crime.

[00:17:25] Speaker 01:
And the only reason is because of their age.

[00:17:28] Speaker 01:
It's, for example, again, taking the example of a mentally incompetent person.

[00:17:33] Speaker 01:
It would be a crime except they didn't form the proper mens rea to commit the crime because they're mentally incompetent.

[00:17:41] Speaker 01:
But that's not the case.

[00:17:42] Speaker 01:
The only thing standing in the way of a juvenile being convicted of a crime is age.

[00:17:48] Speaker 01:
It's not mental status.

[00:17:50] Speaker 01:
It's not some sort of other exculpatory reason.

[00:17:55] Speaker 01:
It's a bright line, hard and fast age.

[00:17:59] Speaker 01:
And so with something like that, Your Honor, there's not a gray area.

[00:18:04] Speaker 01:
It's white or black.

[00:18:05] Speaker 01:
You're a juvenile or you're not a juvenile.

[00:18:08] Speaker 01:
It is a crime, except for their age.

[00:18:12] Speaker 03:
And Mr. Cole,

[00:18:13] Speaker 03:
in his reply brief said that you did not respond to the contention that the other acts at issue here could be considered crimes under, could not be considered crimes under Oklahoma law.

[00:18:25] Speaker 03:
Do you agree that they could not be considered crimes under Oklahoma law?

[00:18:29] Speaker 01:
I don't think there's enough in the record to make that determination because of how and

[00:18:34] Speaker 01:
when people or juveniles get waived to adult court and under what circumstances.

[00:18:39] Speaker 01:
And that's one of the governments.

[00:18:41] Speaker 03:
Well, do you think that's a relevant inquiry as to how state law turns and specific state law turns?

[00:18:49] Speaker 01:
I mean, I think that if this court were to rule that juvenile convictions didn't fall within the scope of 414, then yes, it is a relevant inquiry whether or not the act would constitute juvenile

[00:19:01] Speaker 01:
adjudication, but the government feels that that is just so far from the right result in this case that it shouldn't be an issue that the court has to address because 414 brings into its scope criminal acts, not convictions, not adjudications.

[00:19:20] Speaker 01:
The way that the defense is using the FGDA is really to, again, reverse engineer the definition of what a crime is, because that act doesn't say a crime is an act committed by an adult.

[00:19:34] Speaker 01:
It's using the definition to then get to where they want to go.

[00:19:40] Speaker 01:
And then the text of 18, I think it's 5031, says, as used in this statute, right?

[00:19:50] Speaker 01:
that statutory definition is limited to the FGDA, but then they want to apply it to the rules of evidence.

[00:19:59] Speaker 01:
And that is just way too many links to get to the result that the defense wishes this court to adopt.

[00:20:09] Speaker 01:
The Congress and the drafters of this rule were very clear that 414 is to be liberally applied.

[00:20:16] Speaker 01:
And if they had intended

[00:20:18] Speaker 01:
for juvenile acts to be excluded from the scope of 414, they would have done that.

[00:20:24] Speaker 01:
And we know that they knew how to do that because this court can look at Rule 609, which is evidence of crimes, and when evidence of criminal convictions come in.

[00:20:35] Speaker 01:
And they've caveated out in 609 a whole section about juvenile adjudications.

[00:20:40] Speaker 01:
So if the drafters wanted courts to apply this hyper-technical definition of crime to 414, they would have provided more context.

[00:20:52] Speaker 01:
But instead, what they want is for the courts to use an ordinary meaning of the definition of the word crime.

[00:21:01] Speaker 01:
And when you apply that ordinary meaning to 414, we don't have this hyper-technical debate.

[00:21:07] Speaker 01:
It's what is the activity?

[00:21:10] Speaker 01:
Criminal in nature.

[00:21:11] Speaker 00:
It seems to me that we have two different points here.

[00:21:15] Speaker 00:
One is, what was violated?

[00:21:18] Speaker 00:
What was the standard that was breached?

[00:21:24] Speaker 00:
And is that criminal or something other than criminal?

[00:21:27] Speaker 00:
So first we ask, what was done?

[00:21:29] Speaker 00:
And then a completely separate question is, who did it?

[00:21:34] Speaker 00:
And I think that the way it looks to me,

[00:21:40] Speaker 00:
We're saying that a crime is this child molestation, but then in the definition section, it doesn't say, now we're going to define crime at all.

[00:21:54] Speaker 00:
That issue has now been resolved or is out of this question.

[00:21:57] Speaker 00:
All we're defining in the definition section is who did it.

[00:22:02] Speaker 00:
And it says a juvenile did it.

[00:22:05] Speaker 00:
And now we're defining a juvenile to say that the juvenile isn't going to be held responsible.

[00:22:15] Speaker 01:
In the Federal Juvenile Delinquency Act.

[00:22:19] Speaker 01:
Yes.

[00:22:21] Speaker 00:
I'm not even addressing the Oklahoma.

[00:22:23] Speaker 00:
I mean, that was kind of underdeveloped, I thought.

[00:22:28] Speaker 01:
And I think that,

[00:22:31] Speaker 01:
You're right, Your Honor.

[00:22:34] Speaker 01:
The first turn is the substance of the conduct.

[00:22:39] Speaker 01:
What happened?

[00:22:40] Speaker 03:
Is it entirely the substance of the conduct?

[00:22:42] Speaker 03:
Rule 414 speaks of under federal or state law.

[00:22:46] Speaker 03:
I mean, it could have just as easily said would have been a crime.

[00:22:49] Speaker 03:
I mean, it didn't say that.

[00:22:51] Speaker 03:
It referenced specific law.

[00:22:53] Speaker 03:
And if it references specific law, and we accept for the moment that the state law piece of that is underdeveloped, then we're focusing on the federal law piece of that.

[00:23:03] Speaker 03:
And if we focus on the federal law piece of that, we're focusing on the Juvenile Delinquency Act.

[00:23:07] Speaker 03:
And the Juvenile Delinquency Act speaks in terms of what would have been a crime, but for.

[00:23:13] Speaker 03:
And so why does that language not have power when 414 references us to federal law?

[00:23:22] Speaker 03:
And that's what we're talking about now.

[00:23:24] Speaker 01:
Well, I think the response to that is to pick apart the very first part of the chain of reasoning, Your Honor, with all due respect.

[00:23:32] Speaker 01:
But it says it's a crime under state or federal law, and the court

[00:23:37] Speaker 01:
seems to think that that narrows things, but the only other law left, I guess, would be city or municipality law.

[00:23:43] Speaker 02:
Tribal law.

[00:23:44] Speaker 01:
Tribal law.

[00:23:45] Speaker 01:
You're right.

[00:23:46] Speaker 01:
But state and federal law is very broad.

[00:23:48] Speaker 03:
Well, it could have been.

[00:23:50] Speaker 03:
Look, you've got the model penal code.

[00:23:52] Speaker 03:
You've got a number of ways you can define what the law is.

[00:23:55] Speaker 03:
or you could have us infer criminal conduct.

[00:23:59] Speaker 03:
Conduct, you know, there are dictionary definitions that say what is a crime.

[00:24:04] Speaker 03:
And so there are a number of ways you could have done this without referencing actually federal law.

[00:24:09] Speaker 03:
And in fact, they went beyond that and referenced state law.

[00:24:12] Speaker 03:
So I mean, it does have a narrowing effect.

[00:24:15] Speaker 03:
I mean, there are other ways you could do this.

[00:24:18] Speaker 01:
I agree.

[00:24:18] Speaker 01:
Absolutely, there are other ways that this rule could have been written.

[00:24:21] Speaker 01:
But that doesn't mean that the way that Congress chose to adopt

[00:24:25] Speaker 01:
and how the drafters of the rule chose to write the rule, narrow it to exclude juvenile adjudications.

[00:24:30] Speaker 03:
Well, if they narrow it to mean federal law, then you are transported into a world of saying, okay, at this point, what would this person have been subject to under federal law?

[00:24:41] Speaker 03:
And that leads you to the Juvenile Delinquency Act.

[00:24:44] Speaker 03:
And the Juvenile Delinquency Act tells you what they would have been subject to is being classified as a juvenile delinquent and not as a committer of a crime.

[00:24:54] Speaker 01:
Well, I do wonder, Your Honor, if it did just say federal law, if then Title II, the Assimilation Act, would apply to rope in all of the underlying state criminal law.

[00:25:05] Speaker 01:
So I guess, I don't think that we're roped in and limited under the FJDA.

[00:25:12] Speaker 01:
I think there's no evidence that when writing this rule, Congress had the FJDA and on its mind or on its radar or anything like it,

[00:25:21] Speaker 01:
What we do know from the congressional hearings is that they wanted this rule to be applied liberally and wide in scope, and that's why they don't require a conviction.

[00:25:31] Speaker 01:
They just want to know, were you engaged in the conduct?

[00:25:35] Speaker 01:
I do think the Bryan case is a hard hurdle for the defense to overcome.

[00:25:39] Speaker 01:
because it recognizes that the FGDA doesn't create some sort of new type of law violation, but it's a procedural.

[00:25:49] Speaker 01:
The purpose of it is to remove juveniles from the ordinary criminal process in order to avoid the stigma of a prior criminal conviction and to encourage treatment and rehabilitation.

[00:26:00] Speaker 01:
So this court has acknowledged that juvenile delinquency is a procedural

[00:26:07] Speaker 01:
process, not a substantive.

[00:26:10] Speaker 01:
The juvenile, as I started off with, they still commit crimes.

[00:26:14] Speaker 01:
The conduct that they are engaging in is criminal.

[00:26:18] Speaker 01:
And then the FGDA sweeps in to remove them from the criminal process in order to avoid stigma, give them a chance to rehabilitate, and all that.

[00:26:28] Speaker 01:
But they still engage in criminal conduct.

[00:26:36] Speaker 02:
Well, I'm going to be off topic.

[00:26:37] Speaker 02:
You go ahead.

[00:26:38] Speaker 02:
What do you do with Sweeney?

[00:26:40] Speaker 01:
Sweeney, I think, we cited Sweeney in our brief, and the defense didn't cite.

[00:26:45] Speaker 01:
I actually think that Sweeney also recognizes that the juvenile, because it says juvenile delinquency is an adjudication of status.

[00:26:55] Speaker 01:
That's what the FGDA does.

[00:26:57] Speaker 01:
It's a status adjudication, but it doesn't say that you didn't commit the crime.

[00:27:01] Speaker 01:
You didn't engage in a criminal conduct.

[00:27:03] Speaker 03:
Well, it also did not allow for the discharge provision at play in tweeny to be operative, which suggests that it doesn't entirely help you.

[00:27:10] Speaker 03:
At least on the face of it, it doesn't.

[00:27:12] Speaker 01:
Well, I would disagree, Your Honor, because the bankruptcy discharge required a criminal conviction.

[00:27:16] Speaker 01:
And so what Sweeney recognizes is that you weren't criminally convicted.

[00:27:20] Speaker 01:
And I agree, if 415 required a criminal conviction, this would be a very different situation, because juveniles are not criminally convicted of adult crimes.

[00:27:30] Speaker 01:
But they are engaging in criminal conduct.

[00:27:34] Speaker 01:
OK.

[00:27:36] Speaker 04:
Now, I want to ask you if it makes any difference to you

[00:27:41] Speaker 04:
that a juvenile can be charged as an adult in certain situations.

[00:27:48] Speaker 04:
And what I'm thinking through here is that if that's the case, then some juveniles can be committed of a crime.

[00:27:57] Speaker 04:
They're still a juvenile.

[00:27:59] Speaker 04:
There's just been a procedural mechanism to bring charges against them as an adult.

[00:28:04] Speaker 04:
So does that make any difference in this case?

[00:28:07] Speaker 01:
I would absolutely, Your Honor.

[00:28:08] Speaker 01:
The government's position would be if the court did determine that acts of juvenile delinquency don't fall under the ambit of Rule 414, if a juvenile did commit a act of child molestation and was waived to adult court and had a criminal conviction, that would fall.

[00:28:24] Speaker 04:
I want you to assume they could have been waived.

[00:28:26] Speaker 04:
I mean, this is all hypothetical, because these are uncharged juvenile acts.

[00:28:32] Speaker 01:
And if they could have been waived, then yes.

[00:28:35] Speaker 01:
To me, at that point, that's an adult conviction or it's subject to becoming an adult conviction and you're no longer living in juvenile world.

[00:28:45] Speaker 01:
You're treated just like any other adult would be under 414.

[00:28:50] Speaker 01:
I do want to use my remaining time.

[00:28:53] Speaker 01:
This is a really interesting argument, and I do love legal arguments, but the court doesn't even need to reach the 414 issue in this case because, of course, the district court also amended this evidence under 403, and then there's the harmless error analysis.

[00:29:11] Speaker 01:
The 403 argument, the defense takes issue with how the court weighed the various factors, but the defense does not point to any legal error that the court committed in the Huddleston analysis in performing its 403 balancing.

[00:29:27] Speaker 03:
And a difference... Well, wait a minute.

[00:29:31] Speaker 03:
You seem to be conflating 403 and 40... I'm sorry, Your Honor.

[00:29:34] Speaker 01:
You're right.

[00:29:34] Speaker 01:
That's why... 404B.

[00:29:36] Speaker 01:
I am so sorry.

[00:29:37] Speaker 01:
I apologize.

[00:29:37] Speaker 01:
That's why you were looking at me because I misspoke.

[00:29:39] Speaker 01:
Sorry.

[00:29:40] Speaker 01:
No, totally right.

[00:29:42] Speaker 01:
The 404B analysis, the defendant doesn't take issue with the legal way that the court structured its 404B analysis.

[00:29:50] Speaker 01:
It just would weigh the factors differently.

[00:29:52] Speaker 01:
And this court shouldn't find that that's an abuse of discretion.

[00:29:57] Speaker 01:
The court thoughtfully, thoroughly weighed the factors and found that this evidence was admissible alternatively under 404B.

[00:30:05] Speaker 01:
The jury instruction issue,

[00:30:08] Speaker 01:
The Huddleston factor says you have to ask for the instruction.

[00:30:12] Speaker 01:
They blessed the instruction that was offered.

[00:30:14] Speaker 01:
And then harmless error, of course, the government submits that this is actually a really strong case in terms of child sexual assault cases.

[00:30:23] Speaker 01:
And I see that I have run out of time.

[00:30:26] Speaker 03:
Thank you.

[00:30:37] Speaker 05:
The Bryan case, first of all, was a pre-414 case.

[00:30:44] Speaker 05:
I'm not sure that necessarily impacts what it means.

[00:30:48] Speaker 05:
But that case was really focused on you can't go forward with a juvenile delinquency proceeding before

[00:31:00] Speaker 05:
obtaining all the juvenile records before the information is filed.

[00:31:05] Speaker 05:
So I don't think Bryant is really particularly on point for this case.

[00:31:11] Speaker 05:
Yes, it talks about an adjudication of status, but in our view

[00:31:16] Speaker 05:
adjudicating someone a criminal convict is also an adjudication of status, that the person is a criminal.

[00:31:22] Speaker 05:
A juvenile delinquent is not a criminal.

[00:31:25] Speaker 05:
They have engaged in acts of juvenile delinquency, not crimes.

[00:31:29] Speaker 05:
Congress could change the rule.

[00:31:31] Speaker 05:
It certainly could.

[00:31:33] Speaker 05:
I mean, if this had gone through the regular rules process, we might have gotten a better rule that didn't have the narrowing effect that the plain language of the rule has.

[00:31:44] Speaker 05:
And to the extent Congress meant otherwise, it should have used different language.

[00:31:47] Speaker 03:
What do we do with the government's reference to 404B and the interplay between those two here?

[00:31:58] Speaker 03:
Because it seems to me that they are

[00:32:01] Speaker 03:
on diametrically opposed ends of the spectrum.

[00:32:04] Speaker 03:
In other words, if the court says it's emitting something under 414 and then gives an instruction accordingly as to how this evidence can be used under 414, how can it give a Huddleston instruction which says don't consider it for propensity when in fact the instruction that the court is giving says

[00:32:25] Speaker 03:
use it for any purpose that you want to use it for under 414, those two things don't seem to mesh.

[00:32:32] Speaker 05:
They don't at all.

[00:32:33] Speaker 05:
It's an irreconcilable conflict.

[00:32:35] Speaker 05:
And I think that where there is a 414 admission, there shouldn't be an alternate admission under 404b, because you cannot properly instruct a jury on both.

[00:32:48] Speaker 04:
Can I ask you a proceed?

[00:32:49] Speaker 04:
Of course.

[00:32:50] Speaker 04:
So procedurally, how did this go down in the district court?

[00:32:53] Speaker 04:
Was there any discussion at the time of instructing about 404B?

[00:32:59] Speaker 05:
No, there wasn't any discussion of that.

[00:33:02] Speaker 04:
Was there any argument about the admission of this evidence that it was admissible under 404B?

[00:33:09] Speaker 05:
No, it was all done pre-trial.

[00:33:12] Speaker 04:
Okay, so there was in the proceeding below discussion about 404b though.

[00:33:17] Speaker 05:
Yeah, the government moved alternatively to omit it under 404b.

[00:33:20] Speaker 04:
Okay, and I assume that was opposed.

[00:33:23] Speaker 05:
It was opposed, but they did not raise the specific 404b argument.

[00:33:28] Speaker 05:
They did challenge the 403 basis for 414.

[00:33:30] Speaker 05:
403 analysis applies in both.

[00:33:34] Speaker 04:
Yeah, I'm just trying to see how this would play out at the time of instructing, because if the district court had made some kind of ruling that it was properly admitted under 404B, then either somebody has to submit an instruction, somebody has to say there's an inherent conflict here.

[00:33:51] Speaker 04:
And then if you didn't, then when you get here, we have to be talking about plain air, don't we?

[00:33:57] Speaker 02:
Correct.

[00:33:58] Speaker 03:
I guess my recollection and help me would be that, yes, the government raised alternatively 404B when the defendant challenged, they challenged only on 414, right?

[00:34:11] Speaker 03:
And then the district court, when it issued its decision, accepted the government's alternative ground on 404B.

[00:34:17] Speaker 05:
And went through the 404B analysis.

[00:34:19] Speaker 03:
Yes, yes.

[00:34:20] Speaker 05:
So it did rule on it, correct.

[00:34:22] Speaker 03:
All right.

[00:34:22] Speaker 03:
Thank you, counsel.

[00:34:24] Speaker 03:
Case is admitted.

[00:34:25] Speaker 03:
Thank you for your arguments.