[00:00:00] Speaker 04:
All right, we'll next hear the United States versus Gaines, number 25-5-0-0-0.

[00:00:10] Speaker 04:
Council, you may proceed.

[00:00:13] Speaker 04:
Mr. Casey.

[00:00:15] Speaker 01:
Justices, and may it please the court, my name is Andrew Casey, and I'm honored to be able to represent Mr. Gaines today.

[00:00:22] Speaker 01:
The question before this court is whether the district court

[00:00:25] Speaker 01:
allowed Exhibit 4 to be admitted to the record, despite Eric Williams not appearing to be confronted and cross-examined, and despite the district court not properly analyzing whether good cause existed for the government to fail to produce Eric Williams as a witness.

[00:00:43] Speaker 01:
Because neither of those conditions exist, it was error to admit the exhibit, and without the exhibit, the government failed to meet its burden by preponderance of evidence that Mr. Gaines violated his supervised release,

[00:00:54] Speaker 01:
I would ask for the court to reverse the district court judgment with instructions to dismiss.

[00:00:59] Speaker 01:
I'll move to the first argument, which is the actual statements themselves and whether the exhibit was improperly admitted under 32.1 BC2.

[00:01:10] Speaker 01:
And what I would note is that there are a number of cases from this circuit that I think squarely prevail in favor of the appellant.

[00:01:19] Speaker 01:
The first is actually a decision by you, Your Honor, Judge Matheson.

[00:01:23] Speaker 01:
It was United States versus Jones.

[00:01:26] Speaker 01:
And in that opinion, you and the panel had indicated that we would adopt the balancing test instead of the reliability test.

[00:01:35] Speaker 01:
In that case, there was a murder accusation, but a witness had refused to testify after giving a lot of statements to a detective.

[00:01:44] Speaker 01:
But there was no subpoena, no attempt to contact the victim to show up at the actual sentencing.

[00:01:53] Speaker 01:
And that evidence also contained quite a few different things in it.

[00:01:57] Speaker 01:
But that case led to a ruling where a district court had to be reversed and remanded based upon.

[00:02:04] Speaker 01:
I have two cases that I cited.

[00:02:07] Speaker 04:
Mr. Casey, could we back up a little bit?

[00:02:12] Speaker 04:
First of all, I take it you're not contesting that

[00:02:18] Speaker 04:
the statements at issue in Exhibit 4 would meet the requirements for an excited utterance under Evidence Rule 803.

[00:02:29] Speaker 04:
You're not challenging that.

[00:02:34] Speaker 01:
No, but I would also say that it did happen after he was detained, after 911 calls that Mr. Williams did not make, and after some period of time, at least eight minutes had passed by.

[00:02:48] Speaker 04:
All right.

[00:02:49] Speaker 04:
So moving on, we get to rule 32.1 B2C.

[00:02:58] Speaker 04:
Does it apply to hearsay statements that are admissible under a hearsay exception?

[00:03:06] Speaker 01:
So it would apply and confrontation for that adverse witness would still have to be protected even if the hearsay statement itself was something that could be admissible at a trial.

[00:03:19] Speaker 01:
So what I would note is that the old reliability test said that you have to allow the hearsay evidence without cause regarding availability if it was sufficiently reliable, which isn't that different from sentencing.

[00:03:33] Speaker 01:
But for here, the balancing test that was adopted by Jones, that had been adopted from the 2002 amendment, makes it very clear that you have to assess the confrontation interest, and then you have to balance that with the good cause shown by the government.

[00:03:49] Speaker 04:
Council, that assumes that rule 32 applies.

[00:03:55] Speaker 04:
And my question is, does it apply at all when you have hearsay that would

[00:04:02] Speaker 04:
qualify for a hearsay exception.

[00:04:05] Speaker 04:
I guess what I'm going for with this question counsel is it seems like this court hasn't addressed that specific question and other courts have.

[00:04:18] Speaker 04:
So what should we do about that?

[00:04:23] Speaker 01:
I would indicate, Your Honor, and there's a couple of cases that I've cited that I think can apply to that answer.

[00:04:29] Speaker 01:
So I would note that here you're still under the balancing test.

[00:04:34] Speaker 04:
Why don't you talk about your best authority?

[00:04:39] Speaker 04:
Is there a case that supports your position that you think we should follow?

[00:04:45] Speaker 01:
I would ask the court to look at page 23 of my brief.

[00:04:50] Speaker 01:
I've got two citations I want the court to consider from the Eighth Circuit.

[00:04:54] Speaker 01:
First is United States versus Timmons, which is 950, Fed Third, 1047.

[00:05:02] Speaker 01:
And I want the court to consider United States versus Sutton, which is another Eighth Circuit case, 916, Fed Third, 1134.

[00:05:12] Speaker 01:
In Timmons, there was a body-worn camera of an alleged victim after a 9-11 hang-up call.

[00:05:20] Speaker 01:
And the district court had admitted it as an excited utterance.

[00:05:24] Speaker 01:
And the circuit court in the Eighth Circuit said that because the victim was in the same state as the proceedings and the statements weren't corroborated except by a 9-1-1 call, that it had to be subject to the balancing test

[00:05:40] Speaker 01:
And the government had failed to prove that the balancing test had protected the statements.

[00:05:46] Speaker 01:
Here, the rule on 32.1 is plain that Mr. Gaines has the right to confront an adverse witness, which Eric Williams was at this point, based upon his statements.

[00:05:58] Speaker 01:
And under those two cases, I would indicate to you that there's significant authority to say that rule 32.1 applies on that basic due process component.

[00:06:11] Speaker 00:
Does that answer that question?

[00:06:13] Speaker 00:
In your view, does, I'm sorry, please finish your answer to Judge Matheson's question.

[00:06:20] Speaker 01:
I think I finished it.

[00:06:21] Speaker 00:
I'm ready for it.

[00:06:23] Speaker 00:
In your view, how did the district court understand this video?

[00:06:31] Speaker 00:
Do you think the court thought it was hearsay that had to come within an exception?

[00:06:36] Speaker 00:
I mean, the district court gave a number of different

[00:06:41] Speaker 00:
rulings, it seemed, or thoughts about what this was, you know, excited utterance, a present sense impression, effect on the listener, things like that.

[00:06:49] Speaker 00:
So what is your understanding of what the district court's ruling is that we should evaluate that either triggers Rule 32 or the balancing obligations there or does

[00:07:04] Speaker 01:
I'm looking at the record from volume three, pages 42 to 44, which is the discussion with the district court, where it analyzes just the reliability of the hearsay statements.

[00:07:16] Speaker 01:
That, to me, left the impression that the district court evaluated this as one would have the reliability test that was under Kell before we had United States versus Jones.

[00:07:28] Speaker 00:
Well, that actually that actually makes me wonder about something else.

[00:07:32] Speaker 00:
And it's a much more antecedent question about sort of preservation here, which the government hasn't raised.

[00:07:39] Speaker 00:
And maybe for good reason.

[00:07:40] Speaker 00:
But, you know, Jones came.

[00:07:43] Speaker 00:
Jones was available to you at the time that you were you were making this objection and you cited to the district court, you know, we object under under Rule 32 and

[00:07:57] Speaker 00:
Morrissey and 10th Circuit Law.

[00:08:00] Speaker 00:
But you didn't focus the district court on Jones.

[00:08:02] Speaker 00:
And Jones is really the case that understood what the advisory committee notes were all about, that this was a shift from reliability to this balancing test.

[00:08:15] Speaker 00:
So without mentioning Jones to the district court,

[00:08:21] Speaker 00:
Why should we think the district court was on notice about what its obligations were under Jones?

[00:08:29] Speaker 01:
Because rule 32.1 B2C was specifically cited.

[00:08:34] Speaker 01:
And that was the rule specifically recognized in Jones.

[00:08:38] Speaker 01:
And I don't think that raising Jones at that moment would alleviate the fact that the statutory authority and how the 2002 amendments happened

[00:08:48] Speaker 01:
was not raised and presented to the court.

[00:08:51] Speaker 01:
And in that, then the discussion of what in the interest of justice requires for whether or not that happens.

[00:08:58] Speaker 01:
The rest of the analysis that is there is all related to that part of it.

[00:09:04] Speaker 01:
And so that's what leaves me with the impression that the error is preserved as far as that goes.

[00:09:13] Speaker 02:
Let me ask you a quick question.

[00:09:16] Speaker 02:
What would be the outcome of your case if the district court had done everything exactly like he did, but at the end of the colloquy, when he was getting ready to overrule your objection, he said, I have balanced all of these factors under rule 32.1 and deny your motion?

[00:09:42] Speaker 01:
I think that the case, I'm sorry.

[00:09:45] Speaker 01:
Go ahead.

[00:09:47] Speaker 01:
The case law is very clear that simply mentioning the analysis, simply mentioning that you went through balancing, is not enough to actually conduct balancing.

[00:09:57] Speaker 01:
And here the record shows significant information to you about how there was discussions about how the witness was uncooperative, but there was nothing to suggest that he was under subpoena, that the subpoena would be futile, that there was anything that was done as far as it goes, and so I would say that

[00:10:14] Speaker 01:
The judgment was still incorrect, even if you mentioned the balancing test at the end.

[00:10:21] Speaker 02:
I guess the problem I'm having is what happened at the court.

[00:10:24] Speaker 02:
And I don't know if you were trial counsel or not.

[00:10:26] Speaker 02:
I'm not faulting anyone at trial at the district court because it's fast and furious.

[00:10:34] Speaker 02:
It seems like what happened is it was like, I object under rule 32.1 because I want to confront the witness.

[00:10:42] Speaker 02:
I want to cross-examine them.

[00:10:43] Speaker 02:
There are a lot of questions I would like to ask, period.

[00:10:48] Speaker 02:
But nobody suggested to the district court that the method he used to analyze this was wrong.

[00:10:58] Speaker 02:
Maybe the distinct point that you wanted to cross-examine and confront the witness was made, but nobody suggested that the district court had not engaged in balancing at that point.

[00:11:13] Speaker 01:
I would indicate, Your Honor, I think that one of the statements that you said is precisely my viewpoint from having been in the room, which is that we're working through, and Your Honor is very fast, he's very direct, and I'm answering questions and we are moving on very quickly before we get the overruled to the objections.

[00:11:33] Speaker 01:
And so I tried to note that I had issues with the accuracy of the statements that I wanted to cross-examine on.

[00:11:40] Speaker 01:
that Rule 32.1 had to be preserved.

[00:11:43] Speaker 01:
And I think even the way that that had happened was there was an attempt to admit another exhibit.

[00:11:49] Speaker 01:
I had noted that I was going to make that objection.

[00:11:51] Speaker 01:
We kind of slowed down, and then I made the objection, and it went very quickly after that.

[00:11:56] Speaker 01:
And so I think that the error was preserved as far as 32.1 goes.

[00:12:01] Speaker 01:
except that he had indicated that he thinks that the district court thought justice so required the overrule.

[00:12:08] Speaker 01:
And on that, I don't think that there's enough information to confirm that.

[00:12:13] Speaker 01:
And I do believe that that was error too.

[00:12:17] Speaker 04:
Ron, I know that a couple of other things- Council, can I just, sorry to interrupt, but

[00:12:27] Speaker 04:
Let's say we agree with you and Exhibit 4 is out.

[00:12:34] Speaker 04:
Apart from Exhibit 4, why didn't the evidence show by a preponderance, and I'm talking about the remaining evidence, that Mr. Gaines possessed a firearm and shot Mr. Williams?

[00:12:51] Speaker 01:
Thank you, Your Honor.

[00:12:51] Speaker 01:
I think that Officer Awad's testimony and even the exhibits themselves all leave significant concerns about whether they've met the burden under preponderance of evidence.

[00:13:03] Speaker 01:
For instance, Officer Awad, whenever he discusses the exhibits where there was a claim to see something in Mr. Gaines's hand, had indicated he has no idea what that object is and there was nothing further as far as it goes.

[00:13:18] Speaker 01:
There was a holster inside a car, and there was no indication that that holster would fit the particular weapon in the case.

[00:13:26] Speaker 01:
There are iron sights, but I think that I have a unique problem with the iron sights, because one, iron sights on a handgun are just not something you can take off and equip and measure.

[00:13:38] Speaker 01:
And there's two of them in two separate rooms, and I think that the cross-examination of Officer Watt said,

[00:13:45] Speaker 01:
This is for an AR, and most certainly there's no indication that anybody was shot with an AR.

[00:13:51] Speaker 01:
So the iron sights don't confirm anything as well.

[00:13:54] Speaker 01:
And then there's just an empty box that has an ammunition label on it, but there's no other portions of its part that are there.

[00:14:03] Speaker 01:
Mixed with the statements from Mr. Gaines denying it, there's just nothing to corroborate it besides what's in exhibit four, and so that's

[00:14:14] Speaker 02:
So tell me if this, I'm sorry, do you want to go ahead?

[00:14:19] Speaker 04:
Just to clarify though, is your answer the same if you break it into possession of a firearm on the one hand and the shooting on the other?

[00:14:32] Speaker 04:
Your argument seemed to go more to the shooting part than whether there was enough to show possession.

[00:14:39] Speaker 04:
That's true.

[00:14:41] Speaker 01:
That's true, but I have one other good argument that also goes to possession, and I think those earlier ones do speak to possession.

[00:14:47] Speaker 01:
I would note for the court that with the testimony from Officer Lawd talking about Mr. Gaines being intoxicated, and with no one corroborating any idea that a gun was handed off or that Mr. Gaines had run away and hit it,

[00:15:02] Speaker 01:
and with two things from law enforcement, the quick reaction to get to the scene, and then the thorough search of the area, none of which produced a firearm at all, there's just no evidence that corroborates that he had a firearm at that time.

[00:15:18] Speaker 01:
It's mere speculation based on items in a truck, and they have no evidence to say that he went near the truck at that time.

[00:15:25] Speaker 01:
And then iron sites that have no evidence

[00:15:29] Speaker 01:
relevance to fitting a particular firewall.

[00:15:31] Speaker 01:
And so, the old adage that there's smoke, there's fire.

[00:15:35] Speaker 01:
We don't have smoke as far as this goes.

[00:15:38] Speaker 01:
What we just have are things that wouldn't surpass and won't survive the ponderance of evidence.

[00:15:44] Speaker 01:
And that's also why I think that this is

[00:15:46] Speaker 01:
not harmless error as well, simply because if exhibit four is out, they just haven't met the burden to show that he possessed the gun or that he shot somebody with that.

[00:15:58] Speaker 01:
And I think that the evidence is, and I think that's ultimately why cross-examination of Mr. Williams was so important.

[00:16:06] Speaker 01:
because it got to the ability to test his accuracy, test his viewpoint, bring up things like his criminal history, his level of intoxication, whether he's lying about Mr. Gaines, whether he's protecting somebody else.

[00:16:18] Speaker 01:
All of these would be fair game.

[00:16:21] Speaker 02:
Judge Matheson?

[00:16:22] Speaker 02:
Judge Carson, go ahead.

[00:16:24] Speaker 02:
Would you indulge me in one quick question?

[00:16:26] Speaker 02:
Oh, please, please.

[00:16:27] Speaker 02:
I'm anxious to hear it.

[00:16:30] Speaker 02:
You'll probably regret it.

[00:16:36] Speaker 02:
I may be remembering this wrong, but I seem to remember testimony in the record from the officer that he understood from the other officers that the defendant admitted or that the victim said the defendant shot him.

[00:16:57] Speaker 02:
Do you recall that testimony in the record?

[00:17:00] Speaker 01:
There was a, the way that I remember it was when he was being explained the call out.

[00:17:07] Speaker 01:
There was a discussion that Williams was shot as far as what was really to him to show up to the scene and that they had a suspect.

[00:17:18] Speaker 01:
But I don't remember getting to a point where there was an actual statement that this is the shooter.

[00:17:25] Speaker 01:
And then of course they had Mr. Williams detained at the scene.

[00:17:28] Speaker 01:
Uh, whenever, whenever the body went camera officer, which was an officer.

[00:17:33] Speaker 02:
I don't, I don't want to drag.

[00:17:34] Speaker 02:
I don't want to make you drag on there.

[00:17:36] Speaker 02:
I, I just had a discreet question and it sounds like I'm just going to have to get back in there and take a look.

[00:17:41] Speaker 02:
Thanks.

[00:17:42] Speaker 02:
Thanks for trying to answer that though.

[00:17:44] Speaker 02:
Thank you.

[00:17:45] Speaker 04:
Thank you, council council.

[00:17:47] Speaker 04:
I think your time is up and we're, we're going to move over to Mr. Anderson.

[00:17:51] Speaker 01:
It flies by your honor.

[00:17:52] Speaker 01:
Thank you all so much.

[00:17:54] Speaker 04:
Thank you.

[00:17:55] Speaker 04:
Uh, Mr. Anderson.

[00:17:57] Speaker 03:
May I please the court, Elliott Anderson for the United States.

[00:18:01] Speaker 03:
I'd like to begin with answering Judge Matheson's question and to that I will say that I'm not aware that the 10th Circuit has ever held that rule 32.1 B2C can exclude otherwise admissible hearsay from a revocation hearing.

[00:18:18] Speaker 03:
In Jones itself, the hearsay would not otherwise have been admissible.

[00:18:21] Speaker 03:
The victim or the witness had spoken with the detective and then was unavailable and the detective was going to take the stand and repeat what had been told to him.

[00:18:29] Speaker 03:
That would not have been admissible at trial.

[00:18:32] Speaker 03:
The other cases that the appellant relies on largely involve cooperative witnesses that the government did not work hard enough to get to trial.

[00:18:41] Speaker 03:
They largely do not involve otherwise admissible hearsay.

[00:18:45] Speaker 03:
And the 10th circuit certainly is not.

[00:18:47] Speaker 03:
The second reason I think this is the correct answer is that it would be error.

[00:18:51] Speaker 04:
Council, I'm not sure.

[00:18:55] Speaker 04:
Let me throw out that it seems like there are other circuits that have addressed this issue, but there may, I think there's a circuit split.

[00:19:07] Speaker 04:
Are you seeing a circuit split on that issue?

[00:19:10] Speaker 03:
I can, I see cases coming out either way.

[00:19:13] Speaker 03:
I don't know that I've seen a lot of cases directly phrasing the question in those terms and answering it.

[00:19:18] Speaker 03:
I think the better answer though, is that rule 32.1 cannot be read to make the standard of admissibility more restrictive at a revocation hearing than it would be a trial.

[00:19:29] Speaker 03:
It would be error to read rule 32.1 under Jones and under all of this court's precedent on revocation, which all acknowledge

[00:19:38] Speaker 03:
that a defendant at a revocation hearing, it's not a criminal prosecution.

[00:19:42] Speaker 03:
They do not have the full panoply of trial rights.

[00:19:44] Speaker 03:
But then to read rule 32.1 to exclude an excited utterance that would come in a trial, regardless of the declarant's availability, that is a misreading of the rule.

[00:19:59] Speaker 04:
Well, counsel, I don't see anything in the rule that speaks to this at all.

[00:20:05] Speaker 04:
It says the defendant's entitled to an opportunity to appear, present evidence and question any adverse witness.

[00:20:11] Speaker 04:
Doesn't say anything about hearsay, exceptions to hearsay.

[00:20:15] Speaker 04:
Just says that the defendant's entitled to do that.

[00:20:19] Speaker 04:
So I don't see, based on the text of the rule, an answer to this question about if we have an excited utterance here, does it really matter?

[00:20:32] Speaker 04:
He still has an interest in cross-examining Mr. Williams.

[00:20:37] Speaker 03:
The rule goes on to say, Your Honor, if I'm recalling correctly, unless the judge determines that the interests of justice don't warrant cross-examination.

[00:20:44] Speaker 04:
Oh, well, that gets us to the balancing test, right?

[00:20:47] Speaker 03:
The balancing test that appears in the advisory committee note.

[00:20:50] Speaker 04:
Well, doesn't that, doesn't the advisory committee note about the balancing test relate to that portion of the rule?

[00:20:57] Speaker 03:
It does, Your Honor.

[00:20:58] Speaker 04:
Okay.

[00:20:59] Speaker 04:
And if the rule does apply, we said in Jones, as Mr. Casey pointed out, that just mentioning the rule,

[00:21:11] Speaker 03:
um isn't enough just mentioning balancing isn't enough so how did the district court here actually apply the balancing test three ways your honor first the court examined the reliability of the evidence which jones says is very important and here the evidence was extremely reliable mr williams in exhibit four is excited under the stress of the moment and had been shot somewhere between five and ten minutes earlier second the court

[00:21:38] Speaker 03:
quizzed defense counsel on why exactly did he need to cross-examine this witness.

[00:21:43] Speaker 03:
The district court directly engaged on that point and defense counsel's only answer was the reliability of the statements.

[00:21:50] Speaker 03:
He did not contest that Mr. Williams said what he said.

[00:21:53] Speaker 03:
Now as the reliability of those statements, those are baked into the circumstantial guarantees of trustworthiness in the hearsay exception.

[00:22:00] Speaker 03:
The third reason, and this goes to Judge Rossman's question,

[00:22:03] Speaker 03:
is that defense counsel conceded at the hearing that Mr. Williams was uncooperative and unavailable for testimony.

[00:22:11] Speaker 03:
So Officer Awad testified, I attempted to contact him repeatedly after the incident, he was uncooperative.

[00:22:18] Speaker 03:
Defense counsel not only didn't object to that, defense counsel at volume three page 39 says on the record that he understands Mr. Williams is uncooperative.

[00:22:28] Speaker 03:
It would have been a meaningless exercise and it would be a meaningless exercise to remand just so that the judge could say the magic words.

[00:22:36] Speaker 03:
I have heard both sides agree that the witness is uncooperative and now I understand that the witness is uncooperative.

[00:22:41] Speaker 03:
That part was implicit in the holding.

[00:22:45] Speaker 04:
A lot of counsel, a lot of witnesses are uncooperative, but you subpoenaed them in.

[00:22:51] Speaker 04:
Did the government subpoena Mr. Williams?

[00:22:53] Speaker 03:
I could not find a case, Your Honor, where the government has been required to subpoena.

[00:22:57] Speaker 04:
Well, I didn't ask that question.

[00:22:59] Speaker 03:
To my knowledge, they did not.

[00:23:01] Speaker 03:
All right.

[00:23:02] Speaker 03:
To my knowledge, they did not.

[00:23:03] Speaker 03:
And the cases that were cited in both briefs that faulted the government for not subpoenaing a witness, all involved cases where the witness had cooperated.

[00:23:11] Speaker 03:
So in Dentgraf, in Timmons, in Sutton, in Coleman, the witness had spent hours talking to law enforcement, and then law enforcement didn't subpoena them.

[00:23:21] Speaker 03:
In contrast,

[00:23:23] Speaker 03:
In Williams, they made multiple attempts to contact the witness and could not, and the court excused the witness's presence.

[00:23:30] Speaker 03:
In Carter, the witness obviously would have refused to testify.

[00:23:34] Speaker 03:
And in Martin, the witness refused.

[00:23:37] Speaker 03:
The district court did not explicitly address the availability of the witness, but the Eighth Circuit said, there's enough evidence in the record for us just to do the balancing ourselves.

[00:23:45] Speaker 03:
The government clearly had a good reason for not presenting a witness who would not and never had cooperated.

[00:23:51] Speaker 03:
That is the distinction in the cases as I see it, Your Honor.

[00:23:54] Speaker 00:
But the district court here never factored in its decision making the unavailability of this witness, right?

[00:24:02] Speaker 00:
There would be no reason to, Your Honor, because no one... Well, that's the separate... There may not have been a reason to, but just descriptively, the district court didn't address that piece of the analysis.

[00:24:17] Speaker 00:
Is that fair?

[00:24:17] Speaker 03:
The district court did not repeat what both counsel had said, yes, on that point.

[00:24:22] Speaker 03:
As to the harmlessness of the error, the district court, before it reached its holding, deliberately scaffolded the evidence up.

[00:24:29] Speaker 03:
It said, some of this makes me start to think.

[00:24:31] Speaker 03:
Some of this makes me begin to wonder if the evidence is starting to mount.

[00:24:37] Speaker 03:
And the court said, and I find it pretty overwhelming.

[00:24:39] Speaker 03:
And the court said that before it even discussed exhibit four.

[00:24:42] Speaker 03:
So setting exhibit four aside, there was ample evidence for a reasonable trier effect to find that more likely than not,

[00:24:51] Speaker 03:
Craig Gaines shot Eric Lilly.

[00:24:53] Speaker 00:
Well, counsel, what is the harmless error standard that the government contends applies here?

[00:25:00] Speaker 00:
We've not decided that question about whether errors under this rule are considered to be constitutional or non-constitutional harmless errors.

[00:25:12] Speaker 00:
So what is your position on that?

[00:25:15] Speaker 03:
I think the better answer, Your Honor, is that it's non-constitutional because

[00:25:19] Speaker 03:
cases are in agreement that, at a revocation hearing, the confrontation right isn't a pure confrontation clause right.

[00:25:26] Speaker 03:
It comes from the Fifth Amendment, not the Sixth.

[00:25:28] Speaker 03:
So I think you would be over-elevating the standard here to hold that this is a constitutional error when Mr. Gaines is not asserting a constitutional right.

[00:25:38] Speaker 03:
He's asserting a right under Rule 32.1 and just general.

[00:25:42] Speaker 00:
Is the balancing test that the rule requires coextensive with Morrissey?

[00:25:51] Speaker 03:
I would say no, Your Honor, because this isn't a full... The courts that have examined this, I believe I cited a Fourth Circuit case and a Seventh Circuit case, point out that the confrontation right at a revocation hearing is not on all fours with Morrissey.

[00:26:06] Speaker 03:
It's something less than that.

[00:26:08] Speaker 03:
I believe that's the better holding here, because again, we should be

[00:26:12] Speaker 03:
it should be easier to get reliable hearsay in at a revocation hearing than it would be a trial.

[00:26:17] Speaker 03:
And here the district court said this would be admissible at trial more likely than not, and I saw no reason not to admit it there.

[00:26:24] Speaker 03:
But setting that aside, so there's not a substantial likelihood that exhibit four had a prejudicial outcome on the effect, because what the court saw is in exhibit one, Craig Gaines standing at Eric Williams' door with an object in his hand, it is small and metallic,

[00:26:41] Speaker 03:
Is it undeniably a gun based on that video?

[00:26:44] Speaker 03:
No, but it is undeniably not many other things.

[00:26:47] Speaker 03:
It's undeniably not a box of Girl Scout cookies or a pan of brownies or even a slingshot.

[00:26:52] Speaker 03:
It is the size and shape of something that's consistent with the other points in the narrative because witnesses told police they saw Gaines and Williams arguing in the parking lot and one of them pulled a gun on the other one.

[00:27:03] Speaker 03:
And in exhibit two, we see Mr. Gaines raise his arm toward Mr. Williams, that arm that is holding something that's not a box of cookies.

[00:27:11] Speaker 03:
And Mr Williams spreads his own arms and says, are you going to shoot me?

[00:27:14] Speaker 03:
Because and then at that point in the analysis, the district court paused and noted the other evidence, the small holster and gains his truck, the firearm accessories in his apartment, a small caliber ammunition box outside his apartment, the empty shell casings in the parking lot where he'd been arguing with Williams.

[00:27:31] Speaker 03:
And the judge says, and lo and behold,

[00:27:34] Speaker 03:
Eric Williams shows up getting shot.

[00:27:36] Speaker 03:
At that point in the evidence, even without exhibit four, it would not be arbitrary, capricious, or whimsical for a fact finder to conclude that the man who's holding a gun... That's like a different standard, right?

[00:27:47] Speaker 00:
I mean, we're not... If you're arguing now under harmlessness, could you be just as precise as possible about two things?

[00:27:57] Speaker 00:
The first is you maintain that it's the non-constitutional harmlessness standard, and I think you've

[00:28:03] Speaker 00:
You've effectively explained why that is so.

[00:28:06] Speaker 00:
What is precisely the question that we are addressing under that standard in this case?

[00:28:12] Speaker 03:
Whether, Your Honor, whether we decide that it's non-constitutional or constitutional, the government can prove beyond a reasonable doubt that the error is harmless, because we only need enough facts for a reasonable trial or a fact to conclude, more likely than not, Mr. Gaines held a gun, pointed it at Mr. Williams, and shot him with it.

[00:28:31] Speaker 03:
And there is ample evidence in the record

[00:28:33] Speaker 03:
before we get to exhibit four.

[00:28:35] Speaker 03:
And that I think is evidenced by the court's own analysis where he walks through it deliberately and says, exhibit one, exhibit two, the physical evidence, the witness statements.

[00:28:46] Speaker 03:
It's not just coincidence, lo and behold, that Mr. Williams got shot.

[00:28:49] Speaker 03:
He got shot by the person who was pointing something at him, something that is about the same size and shape as a gun.

[00:28:56] Speaker 04:
Council, wasn't it evidence that there were other people there?

[00:29:00] Speaker 04:
It wasn't just,

[00:29:03] Speaker 04:
Mr. Williams and Mr. Gaines when this incident occurred, correct?

[00:29:09] Speaker 03:
Yes, Your Honor.

[00:29:10] Speaker 03:
There were multiple people who witnessed parts of the incident and reported it to police, but there were no witness statements and no physical evidence implicating any third party in the shooting.

[00:29:21] Speaker 03:
There's nothing on the record at all to cast suspicion away from Mr. Gaines.

[00:29:26] Speaker 00:
We're discussing the sufficiency of the evidence that supports the ultimate decision to revoke.

[00:29:33] Speaker 00:
And I thought our question on harmlessness was directed to whether the court would have admitted the exhibit under the Rule 32 balancing test on the record before it.

[00:29:46] Speaker 00:
Isn't that a different question?

[00:29:48] Speaker 03:
I apologize for misunderstanding your question.

[00:29:50] Speaker 03:
When I spoke to harmlessness, what I meant is that the admission of exhibit four is not what tipped the scales.

[00:29:57] Speaker 03:
So that even if it was error

[00:30:00] Speaker 03:
would have reached the same decision.

[00:30:02] Speaker 03:
A reasonable fact-fire would have been justified in reaching the same decision without exhibit form, just based on everything that came in before that.

[00:30:11] Speaker 03:
That is true.

[00:30:12] Speaker 03:
The harmlessness.

[00:30:13] Speaker 00:
I mean, this is the formulation in Jones.

[00:30:21] Speaker 00:
The formulation in Jones is,

[00:30:24] Speaker 00:
we have great, grave doubt as to whether the court would have admitted the testimony under the Rule 32 balancing test on the record before it.

[00:30:33] Speaker 00:
And if that's the formulation of harmlessness in Jones, if we apply that here, and I think that that calls for us to look at a different set of data points.

[00:30:48] Speaker 03:
I understand your question now.

[00:30:50] Speaker 03:
Let me try to rephrase.

[00:30:52] Speaker 03:
If someone had objected at trial and said, Your Honor, you're applying the wrong test, or you haven't done all the balancing, you've talked about reliability and interesting cross-examination, but Judge, you didn't say anything about the availability of the witness.

[00:31:06] Speaker 03:
I don't think there's serious doubt that the judge would have said something to the effect of, everyone agrees the witness is uncooperative and wouldn't testify against Mr. Gaines.

[00:31:14] Speaker 03:
It would have been one additional sentence that wouldn't have changed the outcome.

[00:31:17] Speaker 03:
So here, I don't think we have that grave doubt.

[00:31:19] Speaker 03:
It's just if there's an error at all, it wasn't raised below, but factually, the point was uncontested.

[00:31:33] Speaker 03:
If there are no further questions, we request this court of farm.

[00:31:36] Speaker 03:
Thank you.

[00:31:38] Speaker 04:
Thank you, counsel.

[00:31:40] Speaker 04:
I believe we're out of time for Mr Casey, so we will.

[00:31:45] Speaker 04:
consider the case submitted and we thank you for your arguments this morning.

[00:31:49] Speaker 04:
Thanks for cooperating with the Zoom.

[00:31:55] Speaker 04:
You weren't expecting to be on Zoom and neither were we, but it seems to be working out okay.

[00:32:00] Speaker 04:
So thanks for that.

[00:32:02] Speaker 04:
We'll excuse both counsel and move on to the next case.