[00:00:00] Speaker 01:
Good morning, Your Honors, and may it please the Court?

[00:00:03] Speaker 00:
Would somebody please close the back door?

[00:00:08] Speaker 01:
Alan Moritzon, on behalf of Walter Eddings, I'm going to attempt to reserve a couple of minutes for rebuttal.

[00:00:15] Speaker 01:
I'm going to focus my argument on our contentions related to instruction number 13 and the problems with giving an investigative technique to instruction on these facts and these circumstances.

[00:00:30] Speaker 01:
So I'll first attempt to demonstrate that point and then say, I'll make the argument that even if it was appropriate to give such an instruction, that this instruction in particular, when read in combination with the other instructions, had the impermissible effect of reducing the government's burden of proof by suggesting to the jury that it was precluded from considering certain pieces of evidence.

[00:00:56] Speaker 01:
And then time permitting, I'd like to talk about harmless error.

[00:01:00] Speaker 01:
The government says that this is a classic case for an investigative techniques instruction, but cites no authority, and I've come across no authority, in which such an instruction was used or approved, where the investigative techniques and evidence from those investigative techniques was introduced as part of the government's case in chief.

[00:01:26] Speaker 01:
If you look at Trent, Cota Mesa,

[00:01:30] Speaker 01:
Lemon, Johnson, these court cases, Fourth Circuit in Dennis, Third Circuit in Gourney.

[00:01:38] Speaker 01:
In none of those cases did the government as part of its case in chief introduce evidence from the investigative techniques.

[00:01:48] Speaker 00:
I thought this instruction is used to say, oh you didn't have to, the government didn't have to do a fingerprint check or DNA check on the

[00:01:58] Speaker 00:
glass bag that contained the heroin, things like that.

[00:02:01] Speaker 00:
But in those cases, there was always some investigative technique that was used to prove the case, no?

[00:02:08] Speaker 01:
Some investigative technique, just not the challenge investigative technique, not the investigative technique that the defense counsel was saying was missing from the case.

[00:02:19] Speaker 01:
And so, Your Honor, you're exactly right.

[00:02:21] Speaker 01:
These instructions came to fruition as a result of CSI, funnily enough,

[00:02:27] Speaker 01:
where there was concern that a juror or jury would have an unreasonable expectation about the government's ability to establish proof beyond a reasonable doubt by using all kinds of different forensic tools, ballistics tests, DNA, fingerprint.

[00:02:42] Speaker 01:
And so the government would come in and attempt to prove its case, whether it was based on eyewitness testimony or based on some kind of investigative technique.

[00:02:51] Speaker 01:
And then defense counsel would stand up and say, well, where's the DNA evidence?

[00:02:55] Speaker 01:
Where's the ballistics test?

[00:02:58] Speaker 00:
And here in contrast, they did use photographs.

[00:03:01] Speaker 00:
That's exactly right.

[00:03:03] Speaker 00:
So that's the point you're making.

[00:03:04] Speaker 01:
That's the point I'm making.

[00:03:06] Speaker 01:
And there's two reasons it matters.

[00:03:09] Speaker 01:
One, it only serves to confuse or mislead the jury, because the instruction says certain investigative techniques or methods that were not used.

[00:03:20] Speaker 01:
Well, the only criticism was to photographs and videos, which were used.

[00:03:26] Speaker 01:
And so what's the jury to think in that context about, well, what investigative techniques were not used?

[00:03:32] Speaker 01:
The other problem is that when the government... Let me stop you there.

[00:03:36] Speaker 01:
Yeah.

[00:03:38] Speaker 00:
But then the jury would say, well, I don't see what this has to do with anything because there's no challenge to any investigative techniques.

[00:03:48] Speaker 00:
the instruction to guess we're getting to harmless error didn't hurt anything.

[00:03:52] Speaker 01:
Well, not quite to harmless error, but I think a related point, which is when the government gets to use the fruits of an investigative technique as part of their case in chief to incriminate the defendant, and then the defense counsel stands up and says, well, where's the direct evidence from those investigative techniques of the criminal activity

[00:04:16] Speaker 01:
And then the government gets to pull the court in to tell the jury, hey, they weren't obligated to fully employ those investigative techniques.

[00:04:25] Speaker 01:
They weren't obligated to take the picture defense counsel thought they should have taken.

[00:04:30] Speaker 01:
Then you have this imbalance in terms of putting a thumb on the scale in favor of the government.

[00:04:37] Speaker 02:
Are we on plain error review on this?

[00:04:41] Speaker 01:
No.

[00:04:42] Speaker 02:
Well.

[00:04:44] Speaker 00:
Thank you for your answer.

[00:04:49] Speaker 01:
Well, I thought you wanted to follow up, but I'm happy to explain why.

[00:04:53] Speaker 02:
Well, in the district court, as I see the record, you made three arguments about this instruction, and one of them relying on Trent.

[00:05:05] Speaker 02:
you argue that it was inapplicable to the circumstances here because it didn't, you weren't arguing, it wasn't about whether it would reveal the true culprit of the crime.

[00:05:19] Speaker 02:
That's not what you're arguing now.

[00:05:21] Speaker 01:
Correct.

[00:05:21] Speaker 02:
Okay.

[00:05:22] Speaker 02:
Then you also argued that it was duplicative of pattern instruction 1.8, which addressed the jury's role

[00:05:33] Speaker 02:
to judge the credibility of the evidence.

[00:05:36] Speaker 02:
This argument's different than that.

[00:05:38] Speaker 01:
Well, my second argument I would say is absolutely related to that.

[00:05:44] Speaker 02:
Okay, but there was no argument that if the government presents photographic evidence and my argument to the jury is that's not complete because it misses the critical moment when he's moving the gun,

[00:06:02] Speaker 02:
That argument was not made to the district court.

[00:06:06] Speaker 01:
Well, the argument that was made, and Your Honor may be referring to some of the arguments in writing, which were objecting to the instruction, but then trial counsel followed up with arguments, oral arguments, where he elaborated on the objection.

[00:06:22] Speaker 01:
One thing he did talk about was that I didn't even have the chance to talk about DNA or fingerprint evidence, which is where the investigative techniques instruction

[00:06:32] Speaker 01:
would apply.

[00:06:33] Speaker 01:
And I think that that is part and parcel with the argument that the investigative techniques instruction has to focus on investigative techniques that were not introduced to the jury.

[00:06:47] Speaker 01:
And so that's why I'm arguing that it's not plain error, that it was preserved, because he counsel talked about the fingerprint and DNA evidence.

[00:06:57] Speaker 01:
I wasn't allowed to talk about that.

[00:06:59] Speaker 01:
And that's when the investigative techniques instruction might apply.

[00:07:02] Speaker 02:
because the government did not introduce any evidence of fingerprint or... Can you point me to where in the record I would find these oral arguments that raise the argument you're making now in the district court?

[00:07:18] Speaker 01:
I can on rebuttal if I'm successful in reserving two minutes for rebuttal or one minute for rebuttal.

[00:07:26] Speaker 02:
But you'd prefer for us not to be on plain air.

[00:07:29] Speaker 01:
I would absolutely prefer that we not be on plain air.

[00:07:33] Speaker 01:
And even on, well, the next point I was gonna make was even as to the misleading nature of the instructions.

[00:07:45] Speaker 01:
So I say this respectfully, but there's been kind of an odd development in this court's precedent.

[00:07:53] Speaker 01:
When we started with Cota Mesa and the investigative techniques instruction, we added this precautionary language about

[00:08:02] Speaker 01:
Yes, the government doesn't have a duty to pursue every investigative technique, but you, jury, are allowed to take into account those investigative deficiencies, whatever evidence you think should have been produced that was not, in assessing witness credibility and in weighing whether the government met its burden of proof.

[00:08:24] Speaker 01:
That's the Cota Mesa instruction.

[00:08:27] Speaker 01:
And then we have a series of unpublished decisions

[00:08:30] Speaker 01:
from this court, Trent aside.

[00:08:33] Speaker 01:
But Trent really didn't deal with this issue.

[00:08:38] Speaker 01:
But we have those three unpublished decisions that drop that qualifying language.

[00:08:44] Speaker 01:
And it's a problem.

[00:08:46] Speaker 01:
And every other circuit to have addressed this question, the Second Circuit, the Third Circuit, the Fourth Circuit, they all focus on this qualifying language that makes it clear to the jury

[00:09:00] Speaker 01:
We're telling you the government doesn't have this duty, but we also want to make sure you understand that you can take into account these shortcomings in your evaluation.

[00:09:11] Speaker 01:
And we don't have that here.

[00:09:16] Speaker 01:
And so what we have is they don't have to do it immediately followed up by your job is to consider the evidence presented, right?

[00:09:26] Speaker 01:
in my mind, only reinforces the message to the jury that you should not consider what the government did not produce and the evidence they did not submit to you.

[00:09:38] Speaker 00:
Did defense counsel at trial argue these deficiencies in the techniques they did use?

[00:09:45] Speaker 01:
Well, defense counsel argued, and this was, again, more in the oral argument.

[00:09:50] Speaker 00:
I don't mean argued to the judge.

[00:09:52] Speaker 00:
I'm sorry.

[00:09:53] Speaker 00:
I meant arguing to the jury.

[00:09:56] Speaker 00:
I see.

[00:09:57] Speaker 00:
I apologize.

[00:09:58] Speaker 01:
No, no, my fault for misunderstanding.

[00:09:59] Speaker 01:
Argued what to the jury?

[00:10:01] Speaker 01:
Sorry, Your Honor.

[00:10:02] Speaker 00:
That the techniques that the officers did use were performed deficiently.

[00:10:09] Speaker 00:
And that should raise questions about their credibility.

[00:10:13] Speaker 00:
He says this happened, but he didn't take a picture of that.

[00:10:16] Speaker 00:
He took a picture of everything else.

[00:10:19] Speaker 01:
It certainly was argued.

[00:10:21] Speaker 00:
Yeah.

[00:10:21] Speaker 00:
And there was no

[00:10:25] Speaker 00:
ruling by the court that that was an improper argument or no argument by the prosecutor that, oh, they can't, they can't.

[00:10:34] Speaker 00:
The defense can't argue that we did this poorly.

[00:10:37] Speaker 00:
Was there?

[00:10:38] Speaker 01:
There was not.

[00:10:39] Speaker 01:
But the jury instruction told the jury they're not obligated to do that and your focus should be on the evidence presented.

[00:10:50] Speaker 01:
And so I

[00:10:56] Speaker 00:
I guess now we're too late to flee anyway, so.

[00:11:02] Speaker 02:
Natasha, could you find out anything?

[00:11:07] Speaker 00:
It was an emergency system.

[00:11:08] Speaker 02:
Oh.

[00:11:08] Speaker 02:
So not real?

[00:11:09] Speaker 01:
Not real.

[00:11:11] Speaker 01:
No.

[00:11:12] Speaker 00:
We might suggest they not do it while court's in session in the future, which is 99% of the time when it's working.

[00:11:20] Speaker 00:
OK.

[00:11:21] Speaker 00:
Sorry.

[00:11:22] Speaker 00:
Continue.

[00:11:22] Speaker 00:
Yeah.

[00:11:25] Speaker 01:
So the argument about credibility was made, and there were jury instructions, but I think that this highlights... Do you just want me to talk over it?

[00:11:39] Speaker 01:
No, stop the clock, don't you think?

[00:11:44] Speaker 00:
Did you find out anything?

[00:11:49] Speaker 00:
Yeah.

[00:11:49] Speaker 00:
She has better connections than we do.

[00:11:53] Speaker 03:
Not to interrupt your train of thought or anything.

[00:12:08] Speaker 00:
We'll give you some extra time to make up for this.

[00:12:11] Speaker 00:
Thank you.

[00:12:12] Speaker 00:
It's not just taking your time, but we all lose our trains of thought.

[00:12:28] Speaker 00:
What can you tell us?

[00:12:46] Speaker 03:
Oh, city and county.

[00:12:58] Speaker 00:
Would it help if we issued an order of some sort?

[00:13:00] Speaker 00:
It would be too late.

[00:13:05] Speaker 02:
Probably not.

[00:13:05] Speaker 00:
Okay.

[00:13:05] Speaker 00:
Would you add a minute to it?

[00:13:08] Speaker 00:
Make it five minutes.

[00:13:11] Speaker 01:
Thank you, Your Honor.

[00:13:19] Speaker 01:
This is part of what I think the problem is with what happened in the court's case laws.

[00:13:24] Speaker 01:
Cota Meza said, well, what matters is that the jury's not prevented from assessing this missing evidence or the investigative deficiencies.

[00:13:32] Speaker 01:
And this instruction in Cota Meza goes on, like I talked about, with that qualifying language.

[00:13:38] Speaker 01:
And then the unpublished decision in Lemmon says, well, Cota Meza adopted this three-part test.

[00:13:45] Speaker 01:
But we're going to rely on these other instructions to fix the problem.

[00:13:49] Speaker 01:
But that's not what Cota Mesa said.

[00:13:50] Speaker 01:
Cota Mesa said the key language is this additional qualifying language because it's in the context of they don't have to do this, right?

[00:13:59] Speaker 01:
And so we want to remind you that even though they don't have to do it, you're allowed to take into account what's missing when you evaluate whether they've met their burden of proof.

[00:14:09] Speaker 00:
Well, the way that usually works is the first opinion says there's no problem here.

[00:14:15] Speaker 00:
because the only challenge to the instruction we can think of is taking care of in the instruction itself.

[00:14:22] Speaker 00:
So that's okay.

[00:14:23] Speaker 00:
It's not saying that it had to be done that way.

[00:14:26] Speaker 00:
And then the unpublished opinions are saying, essentially, that it doesn't have to be in the same instruction.

[00:14:33] Speaker 00:
There could be other instructions saying that.

[00:14:35] Speaker 00:
What's wrong if that's the reasoning?

[00:14:37] Speaker 00:
What's wrong with that reasoning?

[00:14:38] Speaker 01:
Because it's in the context of that instruction.

[00:14:42] Speaker 01:
There's nothing anywhere else in the instructions that says you jury can take into account the missing evidence.

[00:14:50] Speaker 01:
You jury can take into account the investigative deficiencies.

[00:14:54] Speaker 01:
All they're told that's specific to investigative deficiencies is the government doesn't have to do it.

[00:15:01] Speaker 01:
And what your focus should be on is the evidence presented.

[00:15:05] Speaker 01:
And so I think the combination of those instructions suggests to a jury

[00:15:10] Speaker 01:
And you could easily imagine a discussion in the jury room.

[00:15:13] Speaker 01:
Look, government introduced evidence of eddings in the passenger seat coming out of the stairwell.

[00:15:20] Speaker 01:
And the other juror says, well, where's the photo of him holding the rifle?

[00:15:24] Speaker 01:
Well, we're not allowed to take that into account, because the instruction tells us that the government is not obligated to pursue that investigative technique.

[00:15:33] Speaker 01:
That's the fundamental problem with what happened here.

[00:15:36] Speaker 00:
It's a very interesting argument, and I missed it in the brief.

[00:15:39] Speaker 00:
And it's a nice point, but I'm having a little trouble seeing how it would really have affected the jurors, that they would think that they should ignore your argument that the cops who took pictures should have taken the picture at the critical moment, which would have proved or disproved their case.

[00:15:57] Speaker 01:
Well, I think the key point is that every court, besides the unpublished decisions of the 10th Circuit,

[00:16:05] Speaker 01:
So not the published.

[00:16:06] Speaker 01:
Every court, besides the unpublished decisions of the 10th Circuit, have emphasized the qualifying language in an investigative techniques instruction.

[00:16:14] Speaker 00:
They said that the qualifying language is necessary in the instruction.

[00:16:18] Speaker 01:
Well, they've all highlighted its importance in rejecting the defendant's argument that the jury was precluded from taking into account missing evidence.

[00:16:27] Speaker 01:
They've all said, well, look at this qualifying language that reminds the jury

[00:16:32] Speaker 01:
You are free to take that into account in your evaluation.

[00:16:35] Speaker 00:
We would be the first court to reverse because that language is not in the instruction.

[00:16:41] Speaker 00:
Is that right?

[00:16:42] Speaker 01:
That's right.

[00:16:43] Speaker 01:
That's right.

[00:16:44] Speaker 01:
But it's a problem that needs fixing, Your Honor.

[00:16:47] Speaker 01:
And if there are no other questions at this time, I'll reserve the remainder of my time for you.

[00:16:52] Speaker 01:
So you can report to us on that.

[00:16:53] Speaker 01:
Yes, thank you.

[00:16:54] Speaker 00:
Thank you.

[00:17:00] Speaker 00:
Ms.

[00:17:00] Speaker 00:
Walters?

[00:17:03] Speaker 03:
Good morning.

[00:17:04] Speaker 03:
May it please the court, Tiffany Walters for the United States.

[00:17:07] Speaker 03:
I'm hoping my argument will be slightly less eventful than the counsel's.

[00:17:11] Speaker 03:
The district court did not err here by giving a legally correct investigative instruction that this court has previously approved.

[00:17:20] Speaker 03:
Specifically going to the discussion that we were just having.

[00:17:22] Speaker 02:
Have you previously approved this instruction in a published decision

[00:17:30] Speaker 02:
meaning without the qualifying language in CODA?

[00:17:35] Speaker 03:
Yes.

[00:17:36] Speaker 03:
Trent doesn't list out the language of the instruction, but if you pull the briefs, you can see that they're talking about the exact identical instruction.

[00:17:46] Speaker 03:
So this court has approved of it in a published decision.

[00:17:49] Speaker 00:
Did it address this particular issue?

[00:17:51] Speaker 03:
It did not address the specific issue.

[00:17:52] Speaker 00:
So this argument was not made.

[00:17:54] Speaker 00:
Correct.

[00:17:54] Speaker 03:
Correct.

[00:17:54] Speaker 03:
But it did approve of it.

[00:17:55] Speaker 03:
And it did use that same language from Cota Mesa saying that it didn't preclude the jury from considering this evidence.

[00:18:04] Speaker 03:
So I don't think that that has so much sway.

[00:18:08] Speaker 03:
And I also think that Cota Mesa, the instruction used there, didn't include some of the information that is, in fact, included in this instruction.

[00:18:15] Speaker 03:
And that's that last sentence.

[00:18:17] Speaker 03:
And that sentence, I'd like to read the whole thing because I think it's not just about the evidence presented, but the question is whether the evidence presented is sufficient to convince you beyond a reasonable doubt of the defendant's guilt.

[00:18:29] Speaker 03:
And this language is sufficient that any reasonable jury would have understood that if the evidence presented is not sufficient, then the jury must acquit.

[00:18:38] Speaker 03:
And this is essentially the argument that was raised in Petty regarding the reasonable doubt instruction.

[00:18:43] Speaker 03:
And the reasonable doubt instruction has similar language to this.

[00:18:45] Speaker 03:
And the court said that that was sufficient to instruct the jury that it could consider the absence of evidence.

[00:18:51] Speaker 03:
So I don't think that this language is misleading in any way.

[00:18:54] Speaker 00:
Well, what was the number of the instruction we're talking about?

[00:18:58] Speaker 03:
Instruction number 13.

[00:19:00] Speaker 03:
It's on page 351 of the fourth volume of the record.

[00:19:03] Speaker 00:
OK.

[00:19:09] Speaker 03:
And this instruction, you know,

[00:19:12] Speaker 03:
Mr. Eddings talks a lot about what it told the jury.

[00:19:16] Speaker 03:
But when we actually look at the language of the instruction, it's quite a modest instruction.

[00:19:20] Speaker 03:
So it says that you've heard testimony as to the manner in which the government conducted its investigation in this case, including investigative methods that were used and those that were not used.

[00:19:29] Speaker 03:
In attempting to prove its case, the government is under no obligation to use all of the investigative methods that are available to it or to use any particular method.

[00:19:37] Speaker 00:
Don't you think that sentence is

[00:19:39] Speaker 00:
Is misleading confusing to the jury when there was no challenge to the failure to use any particular method?

[00:19:46] Speaker 03:
I think I would quibble with defendants setting it up as there being no challenge to the absence of a particular investigative method.

[00:19:53] Speaker 03:
And I'd like to explain that further.

[00:19:55] Speaker 03:
So when we're talking about the moment in which Eddings repositions the rifle in the car, which is the evidence that we're most concerned about.

[00:20:03] Speaker 03:
Sergeant Entezola testifies that he's using an investigative technique at that point.

[00:20:08] Speaker 03:
And that investigative technique is observation.

[00:20:09] Speaker 03:
He's watching through his binoculars and he sees this happen.

[00:20:12] Speaker 03:
And he admits in cross-examination that he did not use the technique at that moment of photographing it.

[00:20:18] Speaker 03:
He did not use the technique of videoing it.

[00:20:21] Speaker 03:
So while, yes, other photographs and a video were introduced,

[00:20:27] Speaker 03:
With regards to photographic and video evidence, we're not talking about a binary test like DNA or photographs or fingerprints.

[00:20:34] Speaker 03:
Either you did do the DNA test or you didn't.

[00:20:37] Speaker 03:
With photographs, I mean, did you use the investigative technique if you took any photograph at any point in the case?

[00:20:43] Speaker 03:
What if you used a photograph for one element but not another?

[00:20:46] Speaker 03:
What if you used a video camera but the resolution or perspective wasn't sufficient to capture it?

[00:20:52] Speaker 03:
I mean, specifically with the video camera, this court may well have already taken a look at the footage.

[00:20:56] Speaker 03:
But if you look at it, there's really no exculpatory inference to be gained from that.

[00:21:00] Speaker 03:
I mean, when you look at it, the quality and the perspective are such that there's no way in which that video would have ever shown what was happening inside that car.

[00:21:07] Speaker 03:
And so I think the defense was very focused throughout trial on what the government didn't do.

[00:21:13] Speaker 03:
And any reasonable juror would have understood after hearing cross-examination

[00:21:18] Speaker 03:
that that's what this instruction was talking about, these photographs and videos that the government didn't take of the moment of Eddings repositioning the rifle.

[00:21:32] Speaker 03:
I'd like to also point to the arguments that the defense did make, and I think the defense really focused on what's

[00:21:39] Speaker 03:
fundamentally a legally incorrect argument at trial, which is that testimonial evidence is not sufficient and the government had an obligation to prove its case through photos and videos.

[00:21:51] Speaker 03:
And that's present throughout the cross-examination and it became crystallized in the closing argument where the defense counsel referred to, which is

[00:22:00] Speaker 03:
different than appellate counsel here, but he referred to Sergeant Andazola's testimony as just a talking head and said that the government presented no evidence because it didn't present photos or videos.

[00:22:11] Speaker 03:
And that's exactly the sort of improper inference that this instruction is designed to counter.

[00:22:22] Speaker 02:
I'm not sure.

[00:22:23] Speaker 02:
I mean, this instruction has to do with investigative techniques, not

[00:22:28] Speaker 02:
whether you can use testimonial evidence instead of evidence of testimonial techniques.

[00:22:35] Speaker 03:
It's a little confusing because when you look at the first sentence talking about investigative techniques but then you look to the second sentence and it starts

[00:22:43] Speaker 03:
In attempting to prove its case, the government is under no obligation to use all of the investigative methods that are available to it or use any particular method.

[00:22:51] Speaker 03:
So I think that starts to get into how the government's proving its case at trial.

[00:22:54] Speaker 02:
They're not talking about investigative methods.

[00:22:56] Speaker 02:
They're not talking about offering testimony versus fingerprints or DNA.

[00:23:05] Speaker 03:
Well, it's not identifying specific techniques.

[00:23:07] Speaker 03:
And I think that might, if we were to do that.

[00:23:10] Speaker 02:
Testimony isn't an investigative test technique.

[00:23:13] Speaker 02:
Testimony isn't, but observation is.

[00:23:15] Speaker 03:
Observation through binoculars is.

[00:23:16] Speaker 03:
And if someone's doing that, if they have the binoculars up, they're not going to be able to make, take a video or take a photograph.

[00:23:22] Speaker 03:
That's a choice between techniques.

[00:23:24] Speaker 03:
And the government made that choice in this case.

[00:23:26] Speaker 03:
And because of that, the evidence that was produced from that technique is the eyewitness testimony.

[00:23:30] Speaker 03:
And that has value, and to say that that just isn't evidence at all is legally incorrect.

[00:23:38] Speaker 03:
Ultimately, this instruction focused the jury on what it needed to do, and that was to look at the evidence in front of it and determine whether it was sufficient to show the defendant's guilt beyond a reasonable doubt.

[00:23:47] Speaker 03:
And there's nothing misleading about that.

[00:23:49] Speaker 02:
What the defendant's arguing is that the crux to their argument is that you picked an investigative technique and there's a gap.

[00:24:00] Speaker 02:
in that technique of the critical moment, so to speak, for the possession charge.

[00:24:10] Speaker 02:
That seems, I mean, if you tell the jury they can't consider the absence of evidence, doesn't it undermine the defense's main argument here?

[00:24:23] Speaker 03:
I think I would focus on whether or not the instruction told the jury that it can't consider the absence of evidence.

[00:24:29] Speaker 03:
And I don't think that's what the instruction did.

[00:24:31] Speaker 03:
I think by focusing the jury on what was presented, if sufficient evidence wasn't presented, then the jury has to quit.

[00:24:37] Speaker 03:
And so I think that's necessarily part of that piece, is that missing evidence may mean that the government can't meet its burden.

[00:24:45] Speaker 03:
But just because the government doesn't present a specific type of evidence is not in and of itself

[00:24:50] Speaker 03:
you know, the end of the story.

[00:24:51] Speaker 03:
That's not, you know, if you don't have a photograph, then you can't prove your case.

[00:24:55] Speaker 03:
That is not legally correct.

[00:25:01] Speaker 02:
Could I get you to address the preservation issue?

[00:25:05] Speaker 03:
Yes.

[00:25:06] Speaker 03:
So I think it's best understood defendant's argument in two pieces, turning to the sort of combo argument that the investigative techniques instruction combined with a reasonable doubt instruction, that that is somehow misleading.

[00:25:20] Speaker 03:
There's absolutely no discussion in the record on the reasonable doubt instruction whatsoever in terms of objections to the jury instructions, and that argument was clearly not raised below.

[00:25:29] Speaker 03:
So I think that one certainly was not preserved.

[00:25:32] Speaker 03:
As to the other piece, which is the idea that this instruction doesn't apply where an investigative technique is used, but it produces no incriminating evidence, the defendant argued below that this impeded his defense and that he

[00:25:49] Speaker 03:
wasn't able to attack the credibility of the officer, and that's part of his argument on appeal, but this argument that the evidence was presented, and because of that, the investigative techniques' instruction was not appropriate, was not presented anywhere below, and I'm not sure that the Finns even argue for plain error review in their reply brief on that, so we would argue that that is waived.

[00:26:11] Speaker 03:
Now, to the extent the court does,

[00:26:13] Speaker 03:
decide that plain error review is appropriate in this case.

[00:26:15] Speaker 03:
I'd also like to point out that in plain error review, the court has to consider whether the error was plain or obvious.

[00:26:21] Speaker 03:
And here we have no court case adopting defendant's position on this.

[00:26:26] Speaker 03:
And for that reason alone, the defendant cannot meet his burden on either of the arguments, because no court has endorsed his position, much less this court or the Supreme Court.

[00:26:34] Speaker 02:
Thank you.

[00:26:36] Speaker 03:
Briefly, I'd like to touch on harmlessness.

[00:26:39] Speaker 03:
I think that is fully addressed in the briefs, but I just would like to point out in the reply brief that the defendant has still not challenged the evidence on count two, which is the count that the defense essentially conceded during closing arguments that there was sufficient evidence of.

[00:26:54] Speaker 03:
So I think regardless of what the court finds on the jury instruction, there's no way to say that that had any impact on the conviction on count two.

[00:27:04] Speaker 03:
And then also just briefly as to the argument on suppression raised for the first time in the reply brief, the United States would encourage the court not to consider that because that's a way two times over and it's an inherently factual argument on the community caretaking doctrine.

[00:27:18] Speaker 03:
There's no record to support this court's review on it in any event.

[00:27:26] Speaker 02:
There also seems to be an argument that you have to have physical contact

[00:27:32] Speaker 02:
in order to have possession.

[00:27:34] Speaker 02:
Would you agree with that?

[00:27:36] Speaker 03:
I would not agree with that, and I would point the court to the Johnson decision.

[00:27:40] Speaker 03:
And in that case, the court was sort of discussing the possibility that someone might have a gun in a holster, that somehow someone had helped them put it in the holster and they had not actually touched it.

[00:27:50] Speaker 03:
And in that case, the court suggested that that would be sufficient physical contact.

[00:27:55] Speaker 03:
Here, we're not even sure whether there was physical contact or not.

[00:27:58] Speaker 03:
Sergeant Idesola testified that he repositioned the rifle, and part of the rifle was sticking out.

[00:28:02] Speaker 03:
So it's entirely actually possible that he did touch the rifle.

[00:28:06] Speaker 03:
But either way, touching a rifle just inside a bag is sufficient to exercise direct physical control.

[00:28:13] Speaker 02:
And are you relying on actual possession or constructive?

[00:28:20] Speaker 03:
I think the record supports both.

[00:28:23] Speaker 03:
Logically coherent theory is actual possession because he actually touched the rifle or the bag containing the rifle and that's sort of the clearest example of when you have actual physical possession.

[00:28:35] Speaker 03:
But that same evidence supports that he had access and an intent to control the weapon because he's actually manipulating it, moving it from one place to the other while he's cleaning out the car.

[00:28:45] Speaker 03:
So I think either way you look at it, the evidence is sufficient.

[00:28:51] Speaker 03:
If there are no further questions,

[00:28:53] Speaker 03:
The United States will rest on its brief.

[00:28:55] Speaker 03:
Thank you, Your Honor.

[00:29:07] Speaker 01:
Thank you, Your Honors.

[00:29:09] Speaker 01:
Just two quick points.

[00:29:10] Speaker 01:
First, as to the oral objection, I certainly hope my citations in the opening brief are correct, but this is pages 319 to 321 of volume 4.

[00:29:21] Speaker 01:
as well as page 351, where counsel walks through the objections to the jury instruction.

[00:29:34] Speaker 01:
The main point I wanted to make on rebuttal is that there is, I did not hear a meaningful response to the contention that offering an investigative techniques instruction

[00:29:50] Speaker 01:
in circumstances like these has ever been approved or authorized in any court across the country.

[00:29:58] Speaker 01:
And every case that has approved the instruction has involved the classic anti-CSI instruction circumstance, which is where's the DNA?

[00:30:12] Speaker 01:
Where's the fingerprints?

[00:30:14] Speaker 01:
Where's the ballistics?

[00:30:15] Speaker 01:
not a challenge to the deficiencies in what was introduced using the investigative techniques the government introduced as part of its case in chief.

[00:30:27] Speaker 01:
And again, it places a thumb on the scale in favor of the government to allow them to incriminate the defendant using those investigative techniques and then telling the jury that they're not obligated to pursue those techniques when defense counsel points out the deficiencies.

[00:30:46] Speaker 01:
If there are no questions, I'd ask the court to reverse.

[00:30:50] Speaker 01:
Thank you very much, counsel.

[00:30:51] Speaker 01:
Thank you.

[00:30:53] Speaker 00:
Case is submitted.

[00:30:53] Speaker 00:
Counselor excused.