[00:00:00] Speaker 01: Good morning. [00:00:00] Speaker 01: United States versus Haight, 243074. [00:00:06] Speaker 01: Council for Appellant, if you'd make your appearance and proceed, please. [00:00:12] Speaker 00: Your Honor, if it please the Court, the Appellant, Teresa Haight, chaired by her attorney, Tom Haney, with Stevens and Brand, LLP, [00:00:22] Speaker 00: I was also Ms. [00:00:23] Speaker 00: Height's attorney at trial in this matter. [00:00:27] Speaker 00: And welcome to Topeka and welcome to Washburn's beautiful new law school. [00:00:32] Speaker 00: I'd like to reserve three minutes if I can, at least that's my goal. [00:00:40] Speaker 00: Your Honor, in this case, Theresa Height did not receive a fair trial. [00:00:46] Speaker 00: She was prevented from such by rulings of the trial court. [00:00:51] Speaker 00: What I want to argue today is the defense moved for a two-day continuance after presenting the first of its only two witnesses. [00:00:59] Speaker 00: The defense's second and chief witness had the potential to have changed the verdict that was reached in this case. [00:01:07] Speaker 00: The defense was not allowed to call that witness. [00:01:10] Speaker 00: The second issue I want to argue is the trial court's erroneous order that the defense could not adequately cross-examine the government's chief law enforcement witness, Detective Landry of the Shawnee County Sheriff's Department, to show the jury that he had testified falsely before the grand jury and potentially had a bias and a self-interest in this matter. [00:01:35] Speaker 00: Your honors, because of these and other errors, which we brief but will not argue specifically this morning, Mrs. Height did not receive a fair trial. [00:01:46] Speaker 01: Mr. Haney, I just want to get your position on a threshold issue and that relates to preservation. [00:01:55] Speaker 01: The government alleged that a number of the arguments that you made in this case that you did not preserve them by virtue of your actions below in the district court. [00:02:06] Speaker 01: And in your reply brief, at least as I read it, you didn't address that allegation of lack of preservation. [00:02:15] Speaker 01: So I wonder, what's your position about that? [00:02:18] Speaker 00: Your Honor, I think the Court's referring to an argument in our brief concerning an instruction regarding whether the government intentionally destroyed evidence. [00:02:30] Speaker 01: Well, I mean, there were actually several. [00:02:32] Speaker 01: I mean, the government said you didn't preserve the Deputy Landry contention. [00:02:38] Speaker 01: The government said you didn't preserve the limiting instruction regarding the pole camera. [00:02:44] Speaker 01: So there were actually several allegations of lack of preservation. [00:02:48] Speaker 01: And I'm just wondering, in light of the failure to respond to them, [00:02:52] Speaker 01: in the reply brief, what your position is on whether you, in fact, preserved them? [00:03:00] Speaker 00: Your Honor, I think with respect to Detective Landry, I think we did preserve that, and I think that's a petite argument this morning. [00:03:07] Speaker 00: Regarding the poll camera, all I can tell the court is that we did stay in our brief. [00:03:11] Speaker 00: We made that the subject of a Rule 29 motion. [00:03:15] Speaker 00: It was discussed with the court and the instruction was mentioned, but [00:03:18] Speaker 00: government is correct that a specific request for an instruction on intentional or negligent destruction of evidence was not made. [00:03:26] Speaker 00: So we're here today possibly on plain error on that issue, but I think the other issues were in fact discussed. [00:03:33] Speaker 01: Well, if you didn't argue plain error in your brief, then you're not here before us on plain error because you needed to make the argument in your brief. [00:03:40] Speaker 00: I understand, Your Honor. [00:03:41] Speaker 00: I think the Tenth Circuit has the power to rule on that. [00:03:45] Speaker 01: We have the power. [00:03:46] Speaker 00: You have the power, whether you will or not, that's your decision. [00:03:49] Speaker 00: Alright, go ahead Mr. Hancock, please. [00:03:52] Speaker 00: The indictment was originally brought on September 15th of 2021 against four defendants, resulting from an incident which occurred on January 13th of 2021. [00:04:05] Speaker 00: The government alleged a drug-runner delivered a car loaded with methamphetamine and offloaded it in a garage rented by Mrs. Height and her common-law husband Scott Carson. [00:04:17] Speaker 00: Four people were indicted. [00:04:18] Speaker 00: Shelley Zarazua was a multi-kilo purchaser. [00:04:24] Speaker 00: and dealer of meth amphetamine and cannabis with ties to a Mexican drug cartel. [00:04:29] Speaker 00: She was the ringleader of her gang. [00:04:32] Speaker 00: Her cousin Allen Baker was a distributor for Zaragoza. [00:04:36] Speaker 00: A third defendant, Annabel Madrigal, was a drug mule who delivered meth for the cartel for various points in the United States. [00:04:45] Speaker 00: Height and her husband rented a house which had a detached garage and a property where the meth was offloaded. [00:04:53] Speaker 00: Based on a tip to law enforcement of the potential delivery of drugs to Topeka, the garage was under surveillance the day of the arrests. [00:05:06] Speaker 00: It was also subject to a pull camera which had been installed by law enforcement. [00:05:10] Speaker 04: Council, with respect to your motion for the continuance, [00:05:14] Speaker 04: Which witness is the focus of that motion, as you're arguing it on appeal, because there were two, right? [00:05:21] Speaker 04: Ms. [00:05:21] Speaker 04: Moro and Ms. [00:05:22] Speaker 04: Alliston, is that right? [00:05:24] Speaker 04: Yes. [00:05:25] Speaker 04: So who would you like us to focus on? [00:05:27] Speaker 00: Stephanie Alliston. [00:05:29] Speaker 00: OK. [00:05:29] Speaker 00: Thank you, Your Honor. [00:05:31] Speaker 03: And that's the witness you subpoenaed? [00:05:33] Speaker 00: That's the witness who court allowed us to subpoena, and we did subpoena. [00:05:36] Speaker 04: Did you provide an offer of proof to the court with respect to this witness's testimony? [00:05:42] Speaker 00: We did, Your Honor. [00:05:44] Speaker 00: In those days, the rules were a little different. [00:05:45] Speaker 00: We had an ex parte hearing, which the court had to make a finding, materiality. [00:05:49] Speaker 00: The court made that finding. [00:05:51] Speaker 00: The court issued the authority to issue a warrant or issue a subpoena. [00:05:55] Speaker 00: We issued a subpoena, and the witness failed to appear on the first day of trial. [00:05:59] Speaker 00: The court issued a bench warrant. [00:06:01] Speaker 04: So are you contending that the offer of proof [00:06:05] Speaker 04: that it was necessary here to get through the factors to see whether the continuance was warranted. [00:06:14] Speaker 04: We should look to the factual basis for the subpoena for that. [00:06:18] Speaker 00: Your Honor, I think the materiality of the subpoena speaks for itself. [00:06:23] Speaker 00: The court would not have allowed us to issue a subpoena if it wasn't for a witness whose material. [00:06:29] Speaker 01: But is that the same standard, Mr. Haney? [00:06:32] Speaker 01: I mean, offer of proof relates to what in fact the witness would testify to and why you needed the witness. [00:06:39] Speaker 01: I mean, that explains to me what case supports the notion that that is the same standard as materiality for subpoena. [00:06:48] Speaker 01: I mean, I'll stop there. [00:06:51] Speaker 01: That's the question. [00:06:53] Speaker 00: Your Honor, we had explained to the court, both ex parte and at trial, why this witness was material. [00:07:03] Speaker 00: And I think overwhelmingly there was no question. [00:07:06] Speaker 00: She was going to come to court pursuant to her statements to the defense, pursuant to what she had advised the defense voluntarily, that the government's key witness in this case, which I'll get to a Shelley Zarizua, [00:07:22] Speaker 00: had lied and admitted to this witness, I lied about my friend, Teresa Hyde, got her in trouble, I'm sorry, but I'm locked into my story and I've got a teleport court. [00:07:31] Speaker 03: I'm going to stop you because I think you're talking about the letter from Jeanette Morrow, which is in the record. [00:07:39] Speaker 03: And so that's why this whole thing seems a little confusing to me. [00:07:42] Speaker 03: You're quoting from the letter to you. [00:07:45] Speaker 03: It's a handwritten letter. [00:07:46] Speaker 03: It's in the record. [00:07:49] Speaker 03: to Mr. Thomas Haney, but that's from Jeanette Morrow. [00:07:52] Speaker 03: That's the other witness that you wanted to continue for, correct? [00:07:56] Speaker 00: There are actually two letters, Your Honor. [00:07:58] Speaker 03: Only one's in the record. [00:07:59] Speaker 00: Well, we proffered to the government exactly what our witness who had been subpoenaed was going to say. [00:08:05] Speaker 00: And she was going to say that she was in jail with Shelley Zarizua. [00:08:10] Speaker 00: Shelley Zarizua told her, gosh, I've lied about my friend Teresa Height. [00:08:15] Speaker 00: got her in trouble, but I'm going to have to say what I told the government or I'll get in trouble. [00:08:20] Speaker 00: The other witness, and I'm not arguing, even though the court made the comment to both witnesses, [00:08:28] Speaker 00: the government had or both witnesses had been subject to due diligence by the defense the court commented that's not an issue for either witness and both witnesses essentially were saying the same thing that Shelley Zarizu had told them personally these matters but we didn't find the second witness we tried to find her she was not subpoenaed so the government's correct in that [00:08:55] Speaker 00: If she would have shown up, we could have used her. [00:08:57] Speaker 00: And if we had no argument with the court that we had not subpoenaed her, and we had not had a bench warrant issued for her, there's nothing more the defense could have done. [00:09:05] Speaker 04: So is it a correct understanding of your argument that now, by the time of the appeal, the only witness that's at issue for the motion to continue is Allison? [00:09:19] Speaker 01: And to further clarify the line of questioning that you were engaging in with Judge Rossman. [00:09:28] Speaker 01: The notion of the offer of proof, was there any connection made between the ex parte comments regarding the subpoena and the need for her testimony in a continuance? [00:09:44] Speaker 01: In other words, as I understand you, you're suggesting that the court should have drawn the line between the two. [00:09:50] Speaker 01: Did you expressly tell the court to draw the line between the two? [00:09:54] Speaker 01: Because, I mean, if we're going to look at that other statement that you made in connection with the ex parte request for a subpoena, and I assume that's in the record, if we're going to do that, then we need to be able to know that the district court understood that it should be drawing that connection, shouldn't we? [00:10:11] Speaker 00: No, Your Honor. [00:10:12] Speaker 00: I don't think that distinction [00:10:14] Speaker 00: had any bearing on the court's ruling in this case. [00:10:17] Speaker 00: The court knew we had at least one witness who had been subpoenaed. [00:10:21] Speaker 00: The fetch warrant was issued for that witness. [00:10:23] Speaker 00: That witness was material. [00:10:24] Speaker 00: And on a Friday afternoon, the court refused to grant a continuance of two days over the weekend to procure that subpoenaed witness. [00:10:34] Speaker 00: I can't tell the court, and I couldn't tell the court at trial, that we could find her. [00:10:38] Speaker 00: But with the help of the marshals and the help of our investigator, we should have had the two days to find this witness. [00:10:44] Speaker 01: So are you saying that it's enough that she was material enough to issue a subpoena, that the court therefore should have understood that to be sufficient for purposes of getting the continuum? [00:10:55] Speaker 00: Yes. [00:10:56] Speaker 00: I think when we look at the timing on this, there is no inconvenience to the court or the jury [00:11:02] Speaker 00: by continuing this case for two days over a weekend. [00:11:06] Speaker 04: Well, counsel, the district court said that it was inconvenient, that it would be inconvenient. [00:11:12] Speaker 04: I understand your position is that that was incorrect. [00:11:15] Speaker 04: But my question to you is, let's assume that all of the McLaughlin factors here, we resolve in your favor, except for inconvenience. [00:11:29] Speaker 04: Doesn't the district court have a tremendous amount of discretion over the management of its docket, particularly during trials? [00:11:35] Speaker 00: Without question. [00:11:36] Speaker 00: But the court cannot abuse that discretion. [00:11:38] Speaker 00: And our position is the court did abuse that discretion. [00:11:41] Speaker 00: Because I cannot logically, and it's not a legal question, we cannot logically figure how the court could be inconvenienced by continuing a case for two days over a weekend to allow the defense to find its central key witness. [00:11:57] Speaker 00: We didn't ask for a three week continuance. [00:11:59] Speaker 00: We didn't ask the jury to go home and come back later. [00:12:02] Speaker 00: We just wanted to say don't make us close the case on Friday when we had a witness we wanted to find and had two days to find it. [00:12:14] Speaker 00: There was no delay. [00:12:16] Speaker 00: of the court proceedings, there was no delay to the jury, there simply was no possible inconvenience. [00:12:26] Speaker 03: Wasn't there a delay in the sense that the court was ready to send this to the jury? [00:12:29] Speaker 03: If you didn't have anything else to present, it would have went to the jury on Friday afternoon, as opposed to letting the jury go sometime Friday afternoon, having them all come back on Monday, [00:12:44] Speaker 03: in hopes that you find this witness. [00:12:47] Speaker 00: The jury came back on Monday anyway. [00:12:49] Speaker 00: Okay. [00:12:49] Speaker 00: So in practicality, no, there wasn't. [00:12:52] Speaker 00: Was that for deliberations or? [00:12:55] Speaker 00: And if there was, it was so slight as to be de minimis, Your Honor. [00:13:02] Speaker 00: The second issue, which I wanted to bring to court's attention, which I know the court has reviewed, was the decision by the court not to allow us to adequately cross-examine the government's key law enforcement witness. [00:13:16] Speaker 04: Counsel, what is your understanding of the district court's reason for not allowing that cross-examination? [00:13:21] Speaker 04: What was the ultimate ruling that is before us on that issue? [00:13:25] Speaker 00: My understanding, the court ruled that although we claimed this witness committed perjury during a grand jury session by claiming facts which were not true, the court felt that even discussing that issue, [00:13:43] Speaker 00: in front of a jury. [00:13:44] Speaker 00: The jury would be confused because it was a different proceeding. [00:13:48] Speaker 00: It was a grand jury proceeding. [00:13:50] Speaker 00: There were different burdens of proof. [00:13:53] Speaker 00: And the court was simply not going to allow us to examine this witness. [00:13:56] Speaker 04: And so is it your understanding then that the ruling was not one about admissibility per se, right? [00:14:02] Speaker 04: It was about prejudice under Rule 403. [00:14:05] Speaker 04: Is that a fair characterization of the district court's ruling? [00:14:08] Speaker 00: That's fair as I understood what the court was saying. [00:14:11] Speaker 00: The court said essentially, [00:14:13] Speaker 00: the jury could be confused. [00:14:15] Speaker 00: I stood this day and argued to the court, I don't know how the jury could be confused. [00:14:20] Speaker 00: Perjury is perjury, whether it's before a grand jury or before a trial court. [00:14:25] Speaker 00: And that was this defendant's position during trial that this witness perjured himself. [00:14:30] Speaker 00: And we were entitled to explore that before the jury, either through cross-examination and directly calling him as a witness. [00:14:37] Speaker 00: And we are not allowed to do so. [00:14:41] Speaker 00: Your honor, the statement itself appears on page 24 of our brief. [00:14:47] Speaker 00: My client was indicted and lost her freedom because this witness said, [00:14:52] Speaker 00: An interview was post Miranda. [00:14:54] Speaker 00: We presented her with a Miranda waiver as well as agreed to speak. [00:14:59] Speaker 00: Height said she was contacted by Zara Zua to use her garage to essentially do what they were doing. [00:15:06] Speaker 00: Require vehicles inside the garage, unload them with narcotics, let them go. [00:15:10] Speaker 00: Height said that she was receiving a payment for the, I guess, for her lending this garage for this activity. [00:15:19] Speaker 00: And specific payment was an ounce of meth. [00:15:22] Speaker 00: That was it. [00:15:24] Speaker 00: And we submitted the honors. [00:15:26] Speaker 00: That statement was false. [00:15:31] Speaker 00: Thank you. [00:15:33] Speaker 01: Thank you, counsel. [00:15:41] Speaker 02: Good morning, your honor. [00:15:43] Speaker 02: My name is James Brown. [00:15:44] Speaker 02: I'm an assistant United States attorney here in the District of Kansas, and I work in the Topeka office. [00:15:50] Speaker 02: Welcome to Topeka and Washington University and may it please the court. [00:15:54] Speaker 02: Your honors, I'd like to talk about, give an overview of the case and the preservation issues in this case before I talk about the issues one and three which my colleague spoke about earlier this morning. [00:16:05] Speaker 02: Because I think the preservation issues basically foreclosed many of his clients. [00:16:11] Speaker 02: The defendant has four issues. [00:16:13] Speaker 02: And among those four issues are five discreet claims, but he's only preserved two of the five claims. [00:16:19] Speaker 02: As to issue one, he did preserve the claim and the District Court abused its discretion by not granting his request for continuance to look for a witness. [00:16:28] Speaker 02: Under issue two, he did preserve his claim that the sentence was too long, but he did not preserve the claim [00:16:34] Speaker 02: that the district court inadequately explained its reasons for the sentence with respect to the 3-5-5-3-8 factors. [00:16:41] Speaker 02: So the procedural component of that sentence, that's weighed. [00:16:46] Speaker 02: And the reason for that is he didn't argue for plain error. [00:16:49] Speaker 02: He won't appeal for that. [00:16:50] Speaker 02: Under issue three, which is what my colleague is focused on, whether or not the district court reviews its discretion in denying his request to call Detective Landry, he's weighed that issue in two ways. [00:17:02] Speaker 02: The first way is the district court [00:17:05] Speaker 02: that the testimony should not be admitted because it would cause confusion to the jury. [00:17:12] Speaker 02: And that's a sufficient and cognizable ground to exclude the evidence under Rule 403. [00:17:16] Speaker 04: But the court didn't say Rule 403. [00:17:19] Speaker 04: It didn't. [00:17:20] Speaker 04: Why shouldn't that matter for purposes of our review? [00:17:23] Speaker 02: Well, because we look at the totality of the record and we see that that's a cognizable ground to exclude evidence. [00:17:29] Speaker 02: The court had a legal basis for it. [00:17:31] Speaker 02: The court didn't say it, but it is a cognizable and sufficient basis to exclude evidence. [00:17:35] Speaker 02: Even if we take out the fact that the district court did not say rule 403, [00:17:39] Speaker 02: confusion of the jury would still be a valid basis to exclude it, either under the evidentiary rules or even under the confrontation clause. [00:17:48] Speaker 02: The Ben Arsdale case says that confusion of the jury is the ground to exclude evidence. [00:17:52] Speaker 02: So that's what we're looking at. [00:17:54] Speaker 02: We're just saying these fit into rules this court already has. [00:17:57] Speaker 02: But he's never contested that finding, never. [00:18:00] Speaker 02: He does not contest that ruling in his opening brief and therefore he's waived it. [00:18:05] Speaker 02: He does not argue for plain error on appeal. [00:18:08] Speaker 02: He doesn't contest that ruling in his reply brief. [00:18:11] Speaker 02: And therefore, that's a double waiver. [00:18:13] Speaker 01: You mean contest the rationale of confusion? [00:18:16] Speaker 01: Is that what you're saying? [00:18:17] Speaker 01: Correct. [00:18:17] Speaker 01: Correct. [00:18:18] Speaker 02: He never says that the district court's ruling that admitting that evidence would cause confusion to the jury was an abuse of discretion. [00:18:26] Speaker 02: To show an abuse of discretion, he would have to at least argue that that manifests a clear error in judgment. [00:18:31] Speaker 02: He never makes that argument. [00:18:33] Speaker 01: So you're saying, well, he's made it here, right? [00:18:35] Speaker 01: So you're saying before he made it today, he's never made it. [00:18:39] Speaker 02: Well, he didn't make it in its opening brief. [00:18:41] Speaker 02: We know that. [00:18:42] Speaker 02: Now, in his reply brief, he doesn't make one sentence on page nine. [00:18:46] Speaker 02: Those are his numbers, first line. [00:18:48] Speaker 02: And this is all he says. [00:18:49] Speaker 02: Juries are smarter than the court and the government apparently believe. [00:18:53] Speaker 02: That's the only thing he says about the court's ruling about confusion. [00:18:57] Speaker 02: And that is not a claim that the district court [00:19:01] Speaker 02: that the district court manifested a clear error in judgment. [00:19:05] Speaker 02: That is not even an argument that there was an abuse of discretion. [00:19:08] Speaker 02: That's just an opinion that's put out there. [00:19:10] Speaker 02: There's nothing behind that. [00:19:12] Speaker 02: So that is waived, and that forecloses any room by this court on issue two. [00:19:16] Speaker 02: I mean, on issue three. [00:19:17] Speaker 03: He does at least argue, at least, I don't think he argued it below, but I think he argued in his brief that this is missable under Rule 613, which you would [00:19:28] Speaker 03: have as the predicate to applying 403, does that get you there? [00:19:33] Speaker 02: Right. [00:19:34] Speaker 02: That's correct, and I was going to go there next. [00:19:36] Speaker 02: That's the second way he's made his claim. [00:19:39] Speaker 02: He makes his arguments that it was admissible under Rule 613B and the Confrontation Clause for the first time on appeal. [00:19:45] Speaker 02: He never mentioned those rules below. [00:19:48] Speaker 02: He didn't mention any rules. [00:19:49] Speaker 04: It seems that the government's conceding admissibility on appeal. [00:19:52] Speaker 04: Is that correct? [00:19:55] Speaker 02: We acknowledge that it would be theoretically admissible if it could pass the evidence rebalancing test under rule 403. [00:20:06] Speaker 02: But the district court found that it didn't pass that test, so the district court correctly found that it was not admissible. [00:20:11] Speaker 04: So if we're writing this opinion, how would you have us address the admissibility issue? [00:20:17] Speaker 02: Well, as we say in our brief, we think it was theoretically invisible, but because it would be confusing to the jury, it didn't pass the 403 balancing test, and it was properly excluded on the basis that allowing it would confuse the jury. [00:20:33] Speaker 02: That's what we would say. [00:20:35] Speaker 02: And going back to Judge Moritz's question, as we pointed out, the defendant raises the rule 613B claims, confrontation clause claims for the first time in appeal, and he does not argue plain error on appeal either in his opening brief or in his reply brief. [00:20:50] Speaker 02: The words plain error do not appear in his reply briefs. [00:20:53] Speaker 02: So that's clearly weighed under either of those theories. [00:20:56] Speaker 02: He doesn't have a right to review by this court. [00:20:58] Speaker 01: So the briefing issue is an effective waiver argument for that. [00:21:02] Speaker 01: And you're saying in terms of challenging the rationale of confusion, he never did that at all, right? [00:21:10] Speaker 02: Correct. [00:21:11] Speaker 02: He never argued that it was an abuse of discretion, meaning evidence to clear air interference by the district court. [00:21:18] Speaker 01: And so to the point about whether [00:21:21] Speaker 01: what would be the question of admissibility or not, we wouldn't really, under your theory, need to reach that at all. [00:21:29] Speaker 01: In other words, we wouldn't have to say anything about that, right? [00:21:31] Speaker 01: That's correct. [00:21:32] Speaker 01: Okay. [00:21:33] Speaker 01: That's correct. [00:21:34] Speaker 03: Did you make an argument about prejudice if we were to reach this issue? [00:21:39] Speaker 03: It seems that this was pretty significant testimony because Officer Landry apparently testified to the grand jury that she confessed, that Height confessed to [00:21:51] Speaker 03: Zara Zua contacting her to use her garage to receive vehicles, unload narcotics, let them go, and that in exchange she received payment. [00:22:00] Speaker 03: That's kind of the whole deal here. [00:22:04] Speaker 03: So can you even make an argument that that would be harmless? [00:22:09] Speaker 03: And it turns out he wasn't stating that based on personal knowledge. [00:22:14] Speaker 03: He was using reports or investigative reports [00:22:18] Speaker 03: that he hadn't even, or video he hadn't even seen of her speaking with investigators. [00:22:24] Speaker 03: He was just summarizing. [00:22:26] Speaker 02: Right, right. [00:22:27] Speaker 02: Well, Your Honor, we think the court might be jumping to a conclusion about the contents of the video, which my colleague did not put into the record. [00:22:34] Speaker 02: The video's not in the record. [00:22:35] Speaker 02: It was not admitted at the trial. [00:22:38] Speaker 02: What the court just summarized as being what she said on the video comes exclusively from my colleague. [00:22:44] Speaker 02: It doesn't come from anything [00:22:46] Speaker 02: that is tethered to any piece of evidence in this record. [00:22:50] Speaker 02: So we can't really say what she did or did not testify to or talk about in the video for purposes of arguing. [00:22:59] Speaker 02: the factual predicate and the legal predicate and the logical predicate that Detective Landry gave false testimony. [00:23:07] Speaker 02: We just can't go there because we don't have a factual predicate to support that premise. [00:23:11] Speaker 02: That being said, I did review the video yesterday. [00:23:15] Speaker 02: It's not in the record. [00:23:16] Speaker 02: I made notes. [00:23:17] Speaker 02: I could tell the court about my notes if the court wants, but I would just be talking about extra record evidence, which I know is [00:23:22] Speaker 02: is very disfavored by this court. [00:23:25] Speaker 02: But suffice to say, we do not agree with the defendant's characterization of Ms. [00:23:30] Speaker 02: Hite's statements in that video. [00:23:33] Speaker 01: I'm sort of confused about the argument to begin with. [00:23:36] Speaker 01: I mean, it was an argument made in the context of grand jury testimony, where the rules of evidence don't apply, and he was summarizing statements that other people made, which was understood. [00:23:50] Speaker 01: I'm just sort of befuddled as to why that even matters. [00:23:54] Speaker 01: I mean, why would that be admissible? [00:23:58] Speaker 02: Well, I think my colleague would say that even though it relates to a collateral matter, it bears on impeachment for Detective Landry on the basis that he says [00:24:11] Speaker 01: Well, what he would be saying is what he'd summarize from what other people said, not what he said. [00:24:18] Speaker 02: Right, and which is why we argue in our brief that it wasn't relevant because he wasn't testifying to facts within his personal knowledge and therefore didn't bear on any evidence of his credibility [00:24:31] Speaker 02: or his ability to tell the truth or anything like that. [00:24:34] Speaker 02: It was basically irrelevant for impeachment of Detective Landry because he was testifying to what other people had said. [00:24:40] Speaker 03: And I got the impression that the argument was that it wasn't clear to the grand jury, that he simply made the statement that she confessed as though he had personal knowledge when it turns out, and he testified at trial that he didn't have personal knowledge and that he was summarizing. [00:24:58] Speaker 02: I missed the first half of the question. [00:25:02] Speaker 03: My understanding is he's suggesting that Officer Landry was testifying without personal knowledge, but he may have led the grand jury to believe that he had personal knowledge based on how he stated the confession. [00:25:18] Speaker 03: Does that, if that makes sense? [00:25:20] Speaker 03: That's what I understood, but I may have misunderstood what the argument was. [00:25:23] Speaker 02: We didn't understand the argument that way. [00:25:25] Speaker 02: It wasn't articulated that way below, and we never drew that connection. [00:25:30] Speaker 03: All right. [00:25:30] Speaker 03: I may be misunderstanding it. [00:25:32] Speaker 02: And we think the proper made it clear that he was not testifying from facts within his personal knowledge, but he was testifying based on facts applied by other persons. [00:25:41] Speaker 03: But we don't have the video. [00:25:43] Speaker 01: We don't have the video on the record. [00:25:45] Speaker 01: Let me talk about the continuance issue for a second. [00:25:48] Speaker 01: Why, in fact, would prejudice come in, well, two questions, but let me ask the prejudice question. [00:25:54] Speaker 01: Why, in fact, would prejudice come into play if it was over the weekend? [00:25:58] Speaker 01: I mean, it strikes me that, note, the jury would not have been working over the weekend, so what is the prejudice there? [00:26:06] Speaker 01: Okay. [00:26:07] Speaker 02: Your Honor, the briefing is a little unclear on both sides about the timeframe of the continuance. [00:26:13] Speaker 02: The actual time frame is all of Friday after 10 a.m. [00:26:20] Speaker 02: So it's all of Friday after 10 a.m. [00:26:22] Speaker 02: My colleague rested at 10 a.m. [00:26:24] Speaker 02: on Friday, February 9th, and then [00:26:29] Speaker 02: The court, and then the court excused the jury, and then the court said, we'll bring you back at 11 a.m. [00:26:38] Speaker 02: I'll see you in about an hour. [00:26:39] Speaker 02: And this is record volume four, pages 739 to 40, which shows that the case actually ended at 10 a.m. [00:26:47] Speaker 02: And then [00:26:49] Speaker 02: at record volume four, page 754. [00:26:51] Speaker 02: The district court made a statement, anything else we need before we go off the record, waiting for 11 a.m. [00:26:57] Speaker 02: And then the court said, all right, we'll see you in a few minutes. [00:27:00] Speaker 02: The government started closing arguments at 11. [00:27:03] Speaker 02: And then the court's minutes reflect that the jury began deliberating at 2.30 p.m. [00:27:08] Speaker 02: on Friday. [00:27:09] Speaker 02: So it's not just a continuance for the weekend. [00:27:13] Speaker 02: It's continuance for all of Friday after 10 a.m. [00:27:16] Speaker 02: plus the weekend, to be clear. [00:27:19] Speaker 01: Okay, well that's helpful. [00:27:21] Speaker 02: Alright. [00:27:24] Speaker 02: So we think that, you know, we'll give under the McLaughlin factors, we'll give her the diligence factor of the subpoena of the witness, but the court also made a finding that he does not contest, that there's little likelihood that she would have been found. [00:27:38] Speaker 01: Are you giving them or conceding on the diligence factor? [00:27:44] Speaker 02: I think we have to. [00:27:45] Speaker 02: He subpoenaed her. [00:27:45] Speaker 02: The marchers were looking for her. [00:27:47] Speaker 02: And I think the cases say that if you subpoena a witness, then that shows at least enough diligence. [00:27:55] Speaker 02: But the other factors don't go in his favor. [00:27:57] Speaker 02: In convenience, we think the district court did not abuse its discretion, meaning the district court did not make a clear error in judgment in stating that the jury would have been in convenience for all of Friday after 10 a.m. [00:28:09] Speaker 04: What about materiality? [00:28:10] Speaker 04: Why can't the rule 17 motion, the content of that motion, essentially serve as a proxy for whatever offer of proof you contend is missing for analysis? [00:28:22] Speaker 02: Well, you know, that's sort of an odd argument. [00:28:29] Speaker 02: We would just fall back on the Siegel case, which this court cited in the West case, which the defendant cites in her brief that says that the defendant has to show that the witness would have offered substantial [00:28:39] Speaker 02: favorable testimony. [00:28:42] Speaker 02: In looking at this record, there's no basis to conclude that she would have offered substantial favorable testimony. [00:28:48] Speaker 02: And just because the testimony was material, which is what he's relying on, that doesn't mean it's substantial favorable testimony. [00:28:56] Speaker 02: If you look at this record, there was not a proffer. [00:28:59] Speaker 02: We have no way of knowing what she would have testified to as to any element. [00:29:04] Speaker 02: We know that she would have tried to say that Zarazua [00:29:07] Speaker 02: is a liar or something like that. [00:29:09] Speaker 02: But even so, how does that [00:29:14] Speaker 02: How is that substantial testimony when you look at the fact that Zara Zua's testimony was corroborated by two other witnesses? [00:29:20] Speaker 02: All three co-conspirators testified. [00:29:23] Speaker 02: We have a video of her at her house while the dope is being delivered. [00:29:27] Speaker 02: We have drugs found on her person after the delivery. [00:29:31] Speaker 04: So that goes to harm ultimately, but in responding to my question, is it correct to understand the government's position that the [00:29:37] Speaker 04: reason why we can't look or shouldn't look to the Rule 17 content is because the legal standards are different. [00:29:44] Speaker 04: Is that a correct understanding of your position? [00:29:45] Speaker 02: Yes. [00:29:46] Speaker 02: One is materiality and one is substantial favorable testimony. [00:29:49] Speaker 02: And materiality doesn't get you substantial favorable testimony. [00:29:53] Speaker 02: That's basically our argument. [00:29:56] Speaker 02: So then going on to, which gets to the last factor, the unlikelihood. [00:30:01] Speaker 02: As I was stating, [00:30:03] Speaker 02: The district court made a finding that the defendant has never contested, ever, that it would have been unlikely that these witnesses could have been found, including Ms. [00:30:13] Speaker 02: Aliston. [00:30:13] Speaker 02: He's never contested that. [00:30:15] Speaker 02: That has to go to the government, because under the abusive discretion standard, he has the burden, he doesn't talk about it, and therefore that goes to the government. [00:30:23] Speaker 02: So of the former platform factors, he gets diligence, but we get unlikelihood, we get no prejudice, and we get inconvenience to the parties. [00:30:33] Speaker 03: Well, with respect to the subpoenaed witness, who's all we're talking about here now, Alliston, what was the basis for saying that essentially she wouldn't be found? [00:30:42] Speaker 03: The marshals would have had to... [00:30:44] Speaker 03: look for. [00:30:44] Speaker 02: Well, I think the basis was that this has been going on a long time. [00:30:49] Speaker 02: That subpoena's been out there for a while, and they still haven't found her. [00:30:53] Speaker 02: And what reason did the defendant give that they could be found? [00:30:57] Speaker 02: If the court looks at the interaction between the defendant and the court. [00:31:01] Speaker 03: Well, she didn't show up that Friday, right? [00:31:04] Speaker 03: I mean, she didn't show up. [00:31:05] Speaker 03: She got the subpoena. [00:31:06] Speaker 03: She didn't show up. [00:31:07] Speaker 03: Now we have the enforcement. [00:31:11] Speaker 03: We don't really know what would have happened. [00:31:14] Speaker 02: Well, I think the court was thinking along the lines of, and I'm speculating here obviously, the court was thinking along the lines of, he subpoenaed a witness, there's a worry out for her, the marshals have probably been looking for her, couldn't find her, why would they be looking for her? [00:31:26] Speaker 03: Well, there's no testimony about the marshals looking for her. [00:31:29] Speaker 03: There's nothing about that, is there? [00:31:30] Speaker 02: No, as I said, I was speculating about the court's thought process. [00:31:33] Speaker 03: Well, I'm wondering what the court meant by that. [00:31:36] Speaker 02: But still, we don't have any challenge to that finding on this record at all. [00:31:39] Speaker 02: And he has the burden on abuse of discretion to show a clear error of judgment. [00:31:43] Speaker 02: He doesn't show that that's a clear error of judgment. [00:31:46] Speaker 02: So that factor has to go to us. [00:31:48] Speaker 02: I see that I've exceeded my time. [00:31:50] Speaker 02: I'd like to thank the court for the extra time. [00:31:52] Speaker 02: And I obviously yield the remainder of the time that I don't have. [00:31:57] Speaker 01: Thank you. [00:31:57] Speaker 01: Thank you, Mr. Brown. [00:31:58] Speaker 01: In response, you can have one minute of rebuttal if you want it. [00:32:02] Speaker 00: Thank you. [00:32:04] Speaker 00: I'll try and be concise and brief, Your Honor. [00:32:08] Speaker 00: The issue comes up about whether the, quote, confession should have been shown part of the record. [00:32:16] Speaker 00: What's interesting about that is that trial, the government, its own exhibit, declined its admission and objected that it was not admissible. [00:32:26] Speaker 00: Why? [00:32:28] Speaker 00: because it was hearsay. [00:32:29] Speaker 00: And because it was hearsay and the defendant or the witness was not available, it wasn't admissible. [00:32:35] Speaker 00: Well, at that point, the defense was flummoxed. [00:32:38] Speaker 00: In one hand, the government was claiming our witness didn't perjure himself when he said that Ms. [00:32:42] Speaker 00: Height confessed in this video. [00:32:46] Speaker 00: But on the other hand, you can't be admissible because there was no confession. [00:32:49] Speaker 00: So there's no exception to the hearsay rule because there was no admission. [00:32:54] Speaker 00: Secondly, the witness, Your Honor, [00:32:57] Speaker 00: I still struggle about how the court could just simply make a statement that this case has been going on long enough. [00:33:05] Speaker 00: It wasn't the defendant's fault it had been going on long enough. [00:33:09] Speaker 00: And therefore you can't try and find this witness. [00:33:12] Speaker 00: We might not have found her, but all I can tell the court is we found her before we got a subpoena served on her. [00:33:19] Speaker 00: We interviewed her and her family. [00:33:20] Speaker 00: I don't think she would have been an easy find because she would have been there when the trial started and she would have been on her subpoena. [00:33:29] Speaker 00: We didn't have a choice. [00:33:30] Speaker 00: Thank you. [00:33:31] Speaker 01: Thank you counsel for your fine arguments. [00:33:33] Speaker 01: The case is submitted.