[00:00:00] Speaker 00:
with 24-7044, United States versus Holt.

[00:00:07] Speaker 04:
Good morning, Your Honors, Counsel, and may it please the Court.

[00:00:10] Speaker 04:
My name is Michael Gomez from the Office of the Federal Public Defender appearing on behalf of my client, Mr. Jordan Holt.

[00:00:16] Speaker 04:
Your Honors, there were three primary errors that denied Mr. Holt a fair trial in this case, and with the Court's permission today, I'd like to focus on the

[00:00:23] Speaker 04:
erroneous admission of Agent Knight's purported expert testimony, and if there's time permitting, the prosecutor's misstatement of law and rebuttal, though I'd be happy to answer your Honor's questions about any other arguments.

[00:00:34] Speaker 00:
Well, let me intrude and focus for a quick question about the sentencing and your substantive reason on this argument.

[00:00:43] Speaker 00:
Yes.

[00:00:44] Speaker 00:
One issue that I saw with that argument is, or one concern I have about the issue generally,

[00:00:52] Speaker 00:
is that the opening brief appears to use the word variance and departure, sometimes interchangeably.

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The district court purported to do an upward departure, five levels up.

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And in the district court, the council used occasionally the words variance

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and departure interchangeably.

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What concerns me about that is they are distinct mechanisms, and they have distinct approaches in determining whether there was error or not.

[00:01:31] Speaker 00:
And so what I'm struggling to understand is what should I do with that now, because as far as I could tell, both you and opposing counsel argue this as if it is a variance.

[00:01:46] Speaker 00:
when it was not that.

[00:01:49] Speaker 04:
Yes, Your Honor, and I apologize for that confusion.

[00:01:52] Speaker 04:
Yes, this was a departure.

[00:01:55] Speaker 04:
It increased the guidelines range from what was originally calculated.

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And I think the court's focus on the circumstances of the offense, which was what led to this extreme upward departure, that was an error, the focus on just those

[00:02:14] Speaker 04:
those circumstances of the offense, but I think what's important to note here is the court gave absolutely no weight to the mitigation.

[00:02:20] Speaker 02:
So counsel, just to reframe this, tell me if this is a reasonable way to understand your substantive reasonableness argument.

[00:02:27] Speaker 02:
There was no objection to the

[00:02:30] Speaker 02:
The departure itself right correct okay, so once the departure is applied it increases the guideline range to 151 to 188 your client was sentenced at 180 right correct okay, so is your substantive reasonableness challenge focused on?

[00:02:47] Speaker 02:
the length of the sentence in the newly calculated range.

[00:02:52] Speaker 04:
Yes, the substance of reasonableness argument is the length of the sentence in that newly calculated range.

[00:02:58] Speaker 02:
So we don't really have to think about the departure.

[00:03:00] Speaker 04:
Correct, Your Honor.

[00:03:02] Speaker 04:
sentenced Mr. Holt to the statutory maximum of 180 months, that's where the 180 came from.

[00:03:10] Speaker 04:
And again, the rest of our arguments do hold up the same, that there was no weight given to the mitigation and there was undeniable mitigation in this case, which the court after pronouncing sentence did discuss, but it wasn't factored into

[00:03:25] Speaker 04:
into the sentence that was imposed.

[00:03:28] Speaker 00:
Let me make sure I understand the colloquy.

[00:03:32] Speaker 00:
As I understand it in the district court, you did object whether there should be a departure or not.

[00:03:37] Speaker 00:
There was no conceding that an abridged departure was appropriate, right?

[00:03:42] Speaker 04:
Well, yes, Your Honor.

[00:03:44] Speaker 04:
Defense counsel asked for the lower, the low end of the initial guidelines calculation.

[00:03:50] Speaker 00:
Well, that's a big difference from a five-level upward departure, right?

[00:03:53] Speaker 04:
Yes.

[00:03:53] Speaker 00:
Or any upward departure.

[00:03:55] Speaker 00:
OK, so let's, on appeal, are you contesting the fact of departure?

[00:04:03] Speaker 04:
That was not the claim that we've raised.

[00:04:05] Speaker 04:
We've raised the substance of reasonableness, the length of the sentence, based on what the court was operating under, and in this case,

[00:04:13] Speaker 04:
the court was operating under that departure, that upward departure, and it's the length of that sentence that we are contesting.

[00:04:20] Speaker 00:
Well, it is the length of the sentence, but the point would be where within the upward, well, as I understood your colloquy with Judge Rossman, what you're contesting then is how high within the range set by the five-level

[00:04:40] Speaker 00:
upward departure, right?

[00:04:41] Speaker 00:
Correct.

[00:04:42] Speaker 00:
Well, that still doesn't deal with the question of the fact that upward departures, they're a different way of doing them.

[00:04:50] Speaker 00:
I mean, their focus is not on 3553A.

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Their focus is on other stuff.

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And the argument here is all, you focused on one factor, not other factors.

[00:05:01] Speaker 00:
There are cases that we have to talk about that, but they're variance cases.

[00:05:04] Speaker 00:
They're not upward departure cases.

[00:05:07] Speaker 04:
Yes, Your Honor, and to the extent that the court accepts the upward departure, we're operating under that higher guideline range.

[00:05:17] Speaker 04:
The substantive reasonableness argument still stands, and that's the claim that we have.

[00:05:20] Speaker 00:
So as I understand you then, what you're saying is that where we stand now, what you're talking about is the application of the 3553A factors to

[00:05:31] Speaker 00:
The fact of upward departure, the fact that it is okay.

[00:05:35] Speaker 04:
Yes.

[00:05:36] Speaker 00:
All right.

[00:05:37] Speaker 04:
I apologize for that confusion, but I'd like to bring us back to something before sentencing, which were the trial errors that denied Mr. Holt a fair trial.

[00:05:45] Speaker 04:
And in this case,

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As I said, I'd like to start with Agent Knight's purported expert testimony.

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Agent Knight was qualified to provide testimony on bullet defects, on measurements and trajectories, but his expertise stopped before any of the 40 or so bullets fired that day hit Mr. Scales' head.

[00:06:03] Speaker 04:
And this was a chaotic scene that unfolded in seconds, as I mentioned.

[00:06:06] Speaker 04:
There were at least 40 bullets fired, evidence of 40 bullets fired, including- Council, what is your specific challenge here?

[00:06:13] Speaker 02:
And if you could focus specifically on your reasons for your pretrial challenge tonight.

[00:06:20] Speaker 04:
Yes.

[00:06:21] Speaker 04:
So there are a couple of challenges.

[00:06:23] Speaker 04:
So one, it's the district court's abdication of its gatekeeper function, specifically with regard to the analysis of whether the methodology was reliable.

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Because there, as the court noted in its order, much of the government's response summarizes Agent Knight's report rather than describing his methodology, which does not provide the court much in regards to the daughter factor.

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So there was no methodology.

[00:06:50] Speaker 02:
So what is your position on the law here?

[00:06:54] Speaker 02:
So at the pretrial stage,

[00:06:58] Speaker 02:
the district court has a gatekeeping function which includes assessing the methodology.

[00:07:04] Speaker 02:
Yes.

[00:07:05] Speaker 02:
Do we require the court to make specific findings on methodology to satisfy the reliability requirements of Rule 702?

[00:07:13] Speaker 04:
Yes, Your Honor, and I don't have the case citation directly with me, but when there is this challenge, when defense counsel does pose this challenge,

[00:07:25] Speaker 04:
requiring the district court to engage in this type of gatekeeping function.

[00:07:29] Speaker 04:
The court is required to give specific findings of not only qualification, but the methodology and the reliability of the methodology.

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And here we have one where the court didn't review methodology because none was given.

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So that was the abdication of the role.

[00:07:44] Speaker 02:
So the district court said that

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And it cited Kumo Tyre and that trial judges have leeway in deciding in certain cases how to assess methodology.

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Do you agree that that's so?

[00:07:58] Speaker 02:
Yes.

[00:07:59] Speaker 02:
So why isn't that, as applied here, a fair way to understand what the district court was doing in the totality?

[00:08:07] Speaker 02:
In other words, the motion was before the court.

[00:08:11] Speaker 02:
It was assessing Agent Knight's methodology by reference to the report or the analysis that was submitted.

[00:08:19] Speaker 02:
The defense also had an expert that was coming in.

[00:08:22] Speaker 02:
You were going to be able to cross-examine Knight's methodology in trial.

[00:08:28] Speaker 02:
So why can't we say that the district court properly

[00:08:33] Speaker 02:
invoked its authority, discretion, and exercised its decision that under these circumstances, this was enough to make the methodology finding.

[00:08:44] Speaker 04:
Okay.

[00:08:44] Speaker 04:
A couple of points to that, Your Honor, and first I'd like to start with the district court's finding, as much as we could call it one, where it found... In an order, the court said, OSBI is one of the main investigative bureaus in Oklahoma.

[00:09:00] Speaker 04:
Agent Knight has numerous qualifications.

[00:09:02] Speaker 04:
This is sufficient for the court to conclude that the anticipated testimony has sufficient addition of reliability.

[00:09:08] Speaker 04:
That has nothing to do with, that does not represent or reflect this analysis or leeway that shows that there was no methodology to review.

[00:09:18] Speaker 04:
And the fact that the Oklahoma State Bureau of Investigation is a reputable organization doesn't mean that the methodology was reliable in this case, excuse me, or reliably applied.

[00:09:29] Speaker 04:
And the second part of that, Agent Knight has numerous qualifications, goes back to the first prompt of the daughter of factors, which is whether he was qualified in this area to begin with, and he wasn't.

[00:09:39] Speaker 04:
And we know that, again, referencing the district court's order, the court didn't say he had expertise in this area, which I'm calling forensic pathology, but the physiological effects of a bullet entering a human body.

[00:09:51] Speaker 04:
The court instead said, presumably, reconstructing a bullet trajectory involves some analysis of the physiological evidence left by that bullet.

[00:10:00] Speaker 04:
The presumption is not based on anything in the record, because his qualifications, they were generic crime scene.

[00:10:06] Speaker 02:
Well, he wasn't offered as a forensic pathologist.

[00:10:09] Speaker 02:
Correct, Your Honor.

[00:10:10] Speaker 02:
He wasn't.

[00:10:10] Speaker 02:
So the assessment of his qualifications and methodology was attendant to what the government offered him for, which was he was a crime scene reconstruction expert, right?

[00:10:20] Speaker 04:
Correct, and that's the only expert testimony he could give.

[00:10:23] Speaker 04:
However, the testimony at issue here was that physiological effect of the bullet entering a human body, which was at the crux of the causation element of this case.

[00:10:34] Speaker 04:
And I'm referring to specifically pages 1708 to 1710 of the record where

[00:10:41] Speaker 04:
Agent Knight describes the forehead defect as roughly circular, it wasn't a round defect with a uniform abrasion ring, then continues to describe abrasion rings and what happens when a bullet

[00:10:53] Speaker 04:
enter skin and a flat bone, even though this was a curved skull.

[00:10:57] Speaker 04:
So we have this testimony, and it's the only testimony.

[00:11:01] Speaker 04:
This is a multi-day trial, many witnesses.

[00:11:03] Speaker 04:
It's the only testimony that speaks directly to the causation element in this case.

[00:11:08] Speaker 02:
And is that why you contend it isn't harmless?

[00:11:12] Speaker 04:
Correct, Your Honor.

[00:11:13] Speaker 02:
So you cited a beyond a reasonable doubt standard in your brief as the applicable standard for harmlessness, but this is non-constitutional evidentiary error, right?

[00:11:23] Speaker 02:
So that's not right?

[00:11:25] Speaker 04:
Correct, Your Honor.

[00:11:26] Speaker 02:
So what is our standard for harmlessness review of the error here?

[00:11:31] Speaker 04:
I would say the likely effect that it had on the jury's verdict.

[00:11:35] Speaker 02:
So if we spot you the pretrial Dauber error, you had an expert, you, defense counsel, cross-examined Agent Knight, why on the basis of the totality here wouldn't we say that this was harmless error under the correct standard?

[00:11:55] Speaker 04:
Well, first, Your Honor, cross-examination and the ability to call your own witnesses is not a substitute for district court error, especially an error such as this when it's expert testimony on such a crucial element, one of the essential elements in the case.

[00:12:10] Speaker 04:
But again, as you said, this was the foundation of not only Agent Knight's testimony, but the government's theory of the case.

[00:12:18] Speaker 04:
It was this one

[00:12:19] Speaker 04:
There were 40 bullets that were fired.

[00:12:21] Speaker 04:
Evidence of 40 bullets may have been more.

[00:12:24] Speaker 04:
There were at least three to four 9-millimeter firearms.

[00:12:27] Speaker 04:
And it was out of all of those bullets, the government and Agent Knight thought that it was this one particular trajectory, trajectory six, and the end of that trajectory, that last causal link

[00:12:39] Speaker 04:
was the basis of Agent Knight's testimony, not only his testimony, but his entire report.

[00:12:45] Speaker 04:
And what was so necessary about that testimony, the physiological testimony, is that it conflicted with Dr. Neblow's initial conclusion.

[00:12:53] Speaker 04:
It was the fact that Agent Knight disagreed with the medical examiner's initial conclusion as to how that, excuse me, that bullet wound appeared or happened.

[00:13:03] Speaker 02:
So she amended her report.

[00:13:04] Speaker 04:
She amended her report after Agent Knight told,

[00:13:07] Speaker 04:
came up with a different idea of how it happened, and the prosecutor and the police called Dr. Niblo and asked her, gave her their theory of the case, which was the theory of the case presented at trial, and asked her to reconsider those findings.

[00:13:19] Speaker 04:
Importantly though, Dr. Niblo stated at trial that her initial conclusion was still a possibility.

[00:13:26] Speaker 04:
So it's not that she amended it

[00:13:28] Speaker 04:
and came up with a completely different conclusion that ruled out the first.

[00:13:32] Speaker 04:
The first conclusion was still a possibility.

[00:13:34] Speaker 00:
Well, what does that get you?

[00:13:36] Speaker 00:
I mean, it's still a possibility.

[00:13:38] Speaker 00:
So what?

[00:13:39] Speaker 00:
I mean, as I understand it from Judge Rossman's colloquy with you, we're talking about whether any error, if we assume error anyway, was harmless.

[00:13:49] Speaker 00:
I mean, just because it would have been a possibility that there was another way that the injury occurred, that doesn't mean that the way that the agent mentioned could not be accurate too, right?

[00:14:04] Speaker 04:
Correct, Your Honor, but the fact that the error here is that this wasn't just some other evidence that the court let in.

[00:14:10] Speaker 04:
This was expert testimony that was unqualified and not reliable.

[00:14:14] Speaker 04:
that the court let in.

[00:14:15] Speaker 04:
So Agent Knight's very crucial testimony had the weight of an expert testimony.

[00:14:21] Speaker 04:
And the fact that it carried the day not only in his testimony, but in the prosecution's theory of the case.

[00:14:27] Speaker 00:
Well, you say unqualified testimony.

[00:14:30] Speaker 00:
Well, the whole point I think that the government can test is that he was not there as a forensic pathologist.

[00:14:40] Speaker 00:
They, in fact, had one.

[00:14:41] Speaker 00:
They had a forensic pathologist.

[00:14:43] Speaker 00:
He was talking about trajectory.

[00:14:46] Speaker 00:
And there was evidence that he was qualified to do that.

[00:14:50] Speaker 04:
Your Honor, he was an expert in trajectory.

[00:14:53] Speaker 04:
He was not an expert.

[00:14:54] Speaker 04:
in the physiological effects of a human body receiving a bullet.

[00:14:58] Speaker 00:
And he testified to the nature of the wound and how that correlated with his view of the trajectory of the bullet.

[00:15:09] Speaker 00:
There was somebody who talked about how it impacted him once the bullet was in, right?

[00:15:15] Speaker 04:
I see that I'm out of time, but if I can respond to your honor's question and clarify something.

[00:15:21] Speaker 04:
So he testified to the nature of the wound and how a bullet had to have been spinning in the air or how it had to have been degraded ahead of time in order to hit his head in that particular manner.

[00:15:34] Speaker 04:
And he came to that conclusion simply upon reviewing an autopsy photo.

[00:15:39] Speaker 04:
It was that.

[00:15:40] Speaker 04:
So it's a crucial part because it links the rest of his trajectory, which he was qualified to testify about.

[00:15:47] Speaker 04:
But it was that last piece in that trajectory

[00:15:49] Speaker 04:
that was the causation element.

[00:15:51] Speaker 04:
We have no idea that bullet could have gone somewhere else.

[00:15:53] Speaker 04:
But the fact that he was able to testify, yes, this is what happens when a bullet, a deformed, even small degraded bullet, hits a person's head at this certain angle.

[00:16:03] Speaker 04:
He didn't even testify at the angle.

[00:16:04] Speaker 04:
He just said, yes, this is what happens.

[00:16:06] Speaker 02:
But that is all related to your challenge to the trajectory methods, right?

[00:16:12] Speaker 02:
It doesn't invoke the forensic pathology piece of this, right?

[00:16:16] Speaker 04:
No, Your Honor.

[00:16:18] Speaker 04:
There is no direct challenge to the trajectory methods themselves.

[00:16:24] Speaker 04:
We reference the fact that they were eyeballing and guesstimates to say that this trajectory was not scientifically or precisely calculated, such that this was a foregone conclusion that the bullet would have ended up hitting Mr. Scales.

[00:16:37] Speaker 04:
But the crucial part of this is that this was a necessary component to complete.

[00:16:42] Speaker 04:
There are many dots, and this was the last most important dot

[00:16:46] Speaker 04:
that Agent Knight was able to complete that connect for the government because he testified about what a bullet does to human skin and bone.

[00:16:55] Speaker 04:
He testified about paper, plywood, sheet metal, steel.

[00:16:59] Speaker 04:
But when he's describing the effect of bullet defects or how bullet defects come about,

[00:17:06] Speaker 04:
Just generally speaking, he never talked about human flesh, or human skin, or human bones.

[00:17:11] Speaker 00:
Was his testimony cumulative to the testimony that the government introduced regarding the forensic pathologist?

[00:17:18] Speaker 00:
No, Your Honor.

[00:17:18] Speaker 00:
Well then, doesn't that suggest that his testimony was discrete from what a forensic pathologist would opine about?

[00:17:26] Speaker 04:
And to get us away from the technical term forensic pathology,

[00:17:33] Speaker 04:
more in terms of human biology, the human physiological effects of receiving a bullet.

[00:17:40] Speaker 04:
That's the challenge testimony here.

[00:17:41] Speaker 04:
So it's not Dr. Nieblo's testimony of what happened after the bullet fragment went in, was lodged in Mr. Skills' brain.

[00:17:49] Speaker 04:
It's where this bullet came from.

[00:17:52] Speaker 04:
And we don't know, because the degraded bullet fragment.

[00:17:54] Speaker 02:
This is what I don't understand.

[00:17:55] Speaker 02:
I'm a little bit more confused now, I must admit.

[00:17:58] Speaker 02:
I thought that your challenge was that because

[00:18:01] Speaker 02:
Agent Knight's methodology was unreliable.

[00:18:07] Speaker 02:
He could not connect the bullet fragment to Holt's gun.

[00:18:12] Speaker 04:
Correct.

[00:18:13] Speaker 02:
That's your challenge, right?

[00:18:14] Speaker 04:
Ultimately, but it focuses on that last part where he was unqualified to testify about, which was the last link in the chain of causation from there was, according to Agent Knight,

[00:18:26] Speaker 04:
It started from Mr. Holt's gun and then hit the window of the Toyota Sienna.

[00:18:33] Speaker 04:
And then it went through a C pillar.

[00:18:34] Speaker 04:
And then after that, it went into Mr. Scale's head.

[00:18:38] Speaker 02:
So all of those pieces, but for the last link, that one particular trajectory, your position is that that's fine?

[00:18:50] Speaker 02:
Those methods were reliable?

[00:18:52] Speaker 02:
I would say that they were not the most desirable methods, but they were what he did, and we don't have a challenge to say that those were not reliable methods that he employed in that particular... And just so I understand your argument, and the reason why you're challenging that last link is because the ultimate causation conclusion that Agent Knight gave, you say needed

[00:19:15] Speaker 02:
him to have been qualified or able to testify more in the human biology realm.

[00:19:21] Speaker 04:
Yes, correct, Your Honor.

[00:19:22] Speaker 02:
Did the government's expert, the medical examiner, Niblo, speak to that last piece of the chain?

[00:19:31] Speaker 04:
Initially, her initial conclusion was that there was gray soot.

[00:19:36] Speaker 04:
And she noted gray soot around the bullet entrance wound.

[00:19:40] Speaker 04:
So that led her to the conclusion that he was shot at close range by a small caliber handgun.

[00:19:45] Speaker 04:
So after Agent Knight saw the photo, disagreed with her interpretation of that bullet wound, which she was the one who examined the body.

[00:19:54] Speaker 04:
So he disagreed with her interpretation because it didn't match up with his trajectory that he had.

[00:19:58] Speaker 04:
And then he said, well, this looks like it was actually from a high-velocity bullet that had been degraded.

[00:20:05] Speaker 04:
So that caused the police and the prosecutor to call Dr. Nebelow and ask her to reconsider.

[00:20:12] Speaker 02:
But her testament, what did the jury hear?

[00:20:15] Speaker 02:
The jury heard about that she'd had this earlier conclusion and she amended her report.

[00:20:19] Speaker 02:
The jury heard that, right?

[00:20:20] Speaker 02:
Yes.

[00:20:21] Speaker 02:
And then the jury heard her new or revised, updated conclusion.

[00:20:25] Speaker 02:
Did the jury hear that?

[00:20:26] Speaker 02:
Yes.

[00:20:26] Speaker 02:
And what was that conclusion?

[00:20:28] Speaker 04:
The conclusion that it was also consistent with a high-velocity bill that had degraded or had, yes, degraded along the trajectory.

[00:20:35] Speaker 02:
Which, in other words, means it came from your client's gun.

[00:20:39] Speaker 02:
Correct, Your Honor.

[00:20:41] Speaker 04:
Not that it came from my client's gun, because she couldn't testify to any trajectory before that.

[00:20:45] Speaker 04:
She could only testify about the small bullet fragment she found in his brain.

[00:20:50] Speaker 02:
And then connecting that to the type of firearm?

[00:20:53] Speaker 04:
Well, she couldn't connect it to the type of firearm either.

[00:20:55] Speaker 04:
Actually, no expert could connect the small degraded bullet fragment to any firearm, because it was untraceable.

[00:21:01] Speaker 04:
So it could have been the AK-47.

[00:21:03] Speaker 04:
It could have been a revolver.

[00:21:05] Speaker 04:
It could have been one of the three to four 9-millimeter firearms.

[00:21:08] Speaker 04:
And Mr. Holt's expert testified that based on Mr. Scale's possible movement throughout the events, he could have been shot in any position, so not necessarily this trajectory.

[00:21:21] Speaker 04:
So Agent Knight's testimony was the critical link.

[00:21:25] Speaker 04:
Dr. Neibler did not testify to anything about the source of the bullet or where it came from, and it was Agent Knight who connected those dots with unqualified and unreliable testimony about the human biology aspect of it.

[00:21:38] Speaker 01:
There were a number of bullets or bullet fragments found in addition to those from his gun.

[00:21:46] Speaker 01:
Yes, Your Honor.

[00:21:47] Speaker 01:
And were any of those found like directionally near the victim?

[00:21:56] Speaker 04:
Yes, Your Honor, there were several cartridge casings that were traced back to 9-millimeter firearms, though they were no other firearms to determine which exactly they were.

[00:22:05] Speaker 04:
But they were in the vicinity, I believe it's the sidewalk just north of where Mr. Scales landed, and in Mr. Scales' general vicinity as well.

[00:22:16] Speaker 04:
If there are no further questions?

[00:22:17] Speaker 04:
No.

[00:22:18] Speaker 04:
Thank you, Your Honors.

[00:22:31] Speaker 03:
May it please the court, William Glasser for the United States.

[00:22:33] Speaker 03:
If I could, as the court did, just briefly start with sentencing.

[00:22:37] Speaker 03:
We understood the defense argument here to be strictly a substantive, reasonable argument and not a procedural reasonableness challenge to the upward departure that the district court made.

[00:22:48] Speaker 03:
You can certainly challenge a post... I don't think he's saying that.

[00:22:51] Speaker 02:
I don't think that the appellant is contending there's a procedural reasonableness argument here.

[00:22:55] Speaker 03:
That's correct, Your Honor.

[00:22:56] Speaker 03:
And so we understood this just to be solely a substantive reasonableness challenge to the post-departure sentence.

[00:23:05] Speaker 03:
And so that's why we argued this simply as a substantive reasonableness question.

[00:23:10] Speaker 03:
I guess one thing that I would note that I omitted to point out in my brief is that this Court would apply a presumption of reasonableness to a within guidelines sentence.

[00:23:21] Speaker 02:
Post-departure?

[00:23:22] Speaker 03:
Post-departure, yes, Your Honor.

[00:23:23] Speaker 02:
What case says that?

[00:23:24] Speaker 03:
Your Honor, I don't, I'm sorry, I don't recall the name of the case, but this Court has said that.

[00:23:28] Speaker 02:
And you're talking about specifically applying the presumption of reasonableness in the post-departure context?

[00:23:35] Speaker 03:
That's correct, Your Honor, but I think even, regardless of whether we have a presumption of reasonableness or not, the defense hasn't shown that the sentence here, a 15-year sentence for voluntary manslaughter that the District Court pointed out was extreme conduct.

[00:23:48] Speaker 03:
We don't think there's any way that that could be substantively unreasonable.

[00:23:50] Speaker 00:
This, I won't pursue this too long, but.

[00:23:55] Speaker 00:
particularly since we don't see a lot of departures these days, but I recall the old days.

[00:23:59] Speaker 00:
And in the old days, not only is there the question of doing a departure, but then there's the question of how high do you go?

[00:24:09] Speaker 00:
And that correlates with the question of length of sentence.

[00:24:13] Speaker 00:
In determining how high you go, the district court was called upon to look for analogies within the guidelines and to say, this is more like this, and therefore I compare it.

[00:24:23] Speaker 00:
And that's how I go about determining what the sentence will be.

[00:24:28] Speaker 00:
That whole process is a process that has not been talked about in the briefs here.

[00:24:35] Speaker 03:
Correct, Your Honor, because we understand that there's no challenge to the procedural reasonableness of granting the upward departure.

[00:24:42] Speaker 00:
And I think... And it's not just granting the upward departure.

[00:24:45] Speaker 00:
One's talking about what length of departure you're going to do.

[00:24:48] Speaker 03:
Correct.

[00:24:49] Speaker 03:
That's right, your honor.

[00:24:50] Speaker 03:
And I think perhaps this is just the world that we live in now, post-Booker and post-Gaul, is that most of the focus tends to be on the 3553A factors.

[00:25:01] Speaker 03:
And there aren't sort of those clear rules anymore as to whether or not a departure is appropriate or whether you ought to depart one level, two level, three levels, et cetera.

[00:25:09] Speaker 00:
Well, that's true, which is why I wondered why.

[00:25:11] Speaker 00:
I mean, you know, the court can do what it wants, but the government is the one that sought the upward departure to begin with.

[00:25:17] Speaker 00:
That's correct, Your Honor.

[00:25:17] Speaker 00:
The post is seeking an upward variance, which put us in this world that we're dealing with now, right?

[00:25:22] Speaker 03:
Yes, Your Honor.

[00:25:23] Speaker 03:
So I think it was certainly permissible for us under the guidelines to seek that upward

[00:25:27] Speaker 03:
departure, and although the defense did object to that below, they haven't raised that challenge on appeal, and so we're simply defending the substantive reasonableness now.

[00:25:35] Speaker 00:
And I'm not saying it was error, but let me suggest, let me understand this.

[00:25:40] Speaker 03:
Sure.

[00:25:40] Speaker 00:
I take it that based upon the way that the dispute has been framed now, we're essentially in the world of talking about the district court's application of the 3553A factors as we would if this had initially been a variance.

[00:25:54] Speaker 03:
I completely agree, Your Honor, yes.

[00:25:56] Speaker 03:
So then, if I may turn to the issues with respect to Agent Knight's testimony, I think it's been helpful in clarifying to understand this morning that the defense is not challenging most of Agent Knight's testimony, but only that testimony.

[00:26:13] Speaker 03:
about the impact of the bullet fragment upon the head of the victim.

[00:26:18] Speaker 03:
And I think here the challenge that they're raising is that that was forensic pathology testimony and it was beyond the expertise of Agent Knight.

[00:26:27] Speaker 03:
We think that it was within his expertise related to bullet trajectory, but I think the really easy way to resolve this case is to conclude that even if he strayed beyond

[00:26:38] Speaker 03:
the bounds of his expertise.

[00:26:41] Speaker 03:
All that he did was testify in a manner that was both consistent with and cumulative of Dr. Cheryl Neiblow's testimony.

[00:26:49] Speaker 02:
So Dr. Neiblow... So now you're arguing harmlessness now.

[00:26:53] Speaker 03:
Effective I think that's the easiest way to resolve this your honor, so yes Let's pause for a moment.

[00:26:58] Speaker 02:
So to be clear.

[00:26:59] Speaker 02:
Let's pause for a moment.

[00:27:00] Speaker 02:
Yes, you're on you spend a lot of time in your briefing Suggesting that we're on plain error review here.

[00:27:05] Speaker 02:
You do no longer contend.

[00:27:06] Speaker 03:
No, I apologize your honor That's what I would just wanted to clarify.

[00:27:09] Speaker 03:
I'm not arguing harmless error.

[00:27:10] Speaker 03:
I'm arguing non-prejudicial Prejudicial plain error.

[00:27:13] Speaker 02:
Okay, but that takes us back to a much more predicate step sure Why in the world would plain air apply here?

[00:27:19] Speaker 03:
I?

[00:27:19] Speaker 03:
So, Your Honor, the reason that plain error would apply here is that the District Court denied the motion in Lemony to exclude Agent Knight's testimony based on the government's representation that Agent Knight would not be providing forensic pathology testimony.

[00:27:34] Speaker 03:
The District Court denied the motion saying he's qualified to testify about bullet trajectories, et cetera.

[00:27:40] Speaker 03:
And so if the defense wanted to argue that he strayed beyond the

[00:27:47] Speaker 03:
the understanding of his testimony that the district court was relying on, then it was the defense's obligation to raise that argument at trial and say, Judge, we thought that there wasn't going to be testimony about forensic pathology, and this is testimony about forensic pathology.

[00:28:03] Speaker 03:
They had that obligation, and having failed to do so, they failed to preserve the argument.

[00:28:08] Speaker 03:
But Judge Rossman, even if you wanted to assume that it was preserved, we think we can still easily win, even on harmless error review,

[00:28:15] Speaker 03:
for the reasons that I was going to.

[00:28:17] Speaker 03:
And that is that Dr. Neiblow testified, and this is quoting her testimony at pages one, or excuse me, volume one, pages 1484 to 1485.

[00:28:27] Speaker 03:
She said about the defect, the injury to the head, I would say it's most consistent with a fragment from a high-velocity bullet.

[00:28:36] Speaker 03:
That's why I think it actually made the kind of more irregular entrance wound, all right?

[00:28:41] Speaker 03:
That's very similar to the testimony at page 1709,

[00:28:45] Speaker 03:
later in the trial, where Agent Knight testified, the fact that the abrasion ring and the margins or the edges of the wound itself were not circular indicates to me that it wasn't an intact spin-stabilized bullet that struck scales, but rather a bullet fragment.

[00:29:00] Speaker 03:
So Agent Knight's testimony was consistent with and cumulative of Dr. Neiblow's testimony that this was a bullet fragment rather than an intact bullet, which as Dr. Neiblow testified, an intact bullet would have likely gone through the head.

[00:29:14] Speaker 03:
And this here is where I would like to briefly address Mr. Gomez's argument that I believe he said that this was the only testimony that speaks to causation, specifically Agent Knight's testimony.

[00:29:28] Speaker 03:
We actually had a lot of evidence regarding causation.

[00:29:31] Speaker 03:
So we had our tool mark expert, Caitlin Miller, testified that

[00:29:36] Speaker 03:
For a bullet to fragment, it must hit an intermediate object.

[00:29:40] Speaker 03:
Dr. Neiblow also testified that the wound here was most consistent, as I mentioned, with a bullet fragmented after hitting something.

[00:29:51] Speaker 03:
Dr. Neiblow also testified there was no exit wound.

[00:29:53] Speaker 03:
Agent Knight testified that the only, and this was not really disputed by the defense experts, Agent Knight testified that the only evidence of bullet fragmentation on the scene was the, where it was possible, was where the bullet hole went through that C pillar of the minivan.

[00:30:12] Speaker 03:
And so the government's theory of causation was, we have a bullet fragment, we know that that bullet fragment had to have hit something, and the only place where we see something that hit something traveling in the direction of Mr. Scales

[00:30:23] Speaker 03:
was the C pillar of the minivan.

[00:30:26] Speaker 03:
We also have Agent Knight's testimony that the bullet trajectory 6 lined up with where Scales was standing.

[00:30:32] Speaker 03:
We have his testimony, again, as I mentioned, the only west to east trajectory, so the only thing going the opposite way was found in the trunk of the Ford LTD.

[00:30:42] Speaker 02:
Is there any difference legally in terms of our analysis if we agree with the appellant that this is preserved and we're analyzing this under the Kodiakas standard of non-constitutional harmlessness?

[00:30:57] Speaker 02:
The government didn't argue that standard in your brief.

[00:31:00] Speaker 02:
You argued prejudice under plain air.

[00:31:02] Speaker 02:
Correct.

[00:31:02] Speaker 02:
Is there any difference in terms of how we would look at those inquiries depending on what our standard of review is?

[00:31:08] Speaker 03:
Your Honor, I think the standard review has to be non-constitutional either way.

[00:31:12] Speaker 03:
And so the only question is whether it's plain error or harmless error.

[00:31:15] Speaker 03:
And so there, I think, effectively, the party's burden is the real difference between the third plain error prong and harmless error where it's preserved.

[00:31:23] Speaker 02:
So if we find that it is preserved and disagree with the government's plain error argument, what should we do about the fact that the law directs the burden on you?

[00:31:36] Speaker 03:
Your Honor, we think we can easily bear that burden for the reasons that I've been arguing here today.

[00:31:40] Speaker 02:
So we should take the prejudice argument under the fourth prong of plain error and stick it into the Kodiakas standard for you?

[00:31:46] Speaker 03:
Your Honor, I don't think you're doing anything for us.

[00:31:49] Speaker 03:
When we make an argument that there isn't prejudice, although I didn't use the term harmlessness because we thought the plain error applied, the same exact arguments would apply.

[00:31:57] Speaker 03:
So I don't think you're doing any work for the government there.

[00:31:59] Speaker 02:
So you think the same arguments would apply?

[00:32:01] Speaker 03:
Absolutely, Your Honor.

[00:32:02] Speaker 03:
Yes.

[00:32:03] Speaker 03:
And then if I could also address the defense's argument regarding Dr. Neiblow's initial conclusion that the dark area around the bullet entry wound was caused, she understood that to be caused by soot.

[00:32:18] Speaker 03:
So her initial conclusion was that that came from a shot that was within six inches of the victim's head.

[00:32:25] Speaker 03:
That's an incredibly close shot.

[00:32:27] Speaker 03:
And although it's true that she changed her report based on Agent Knight,

[00:32:32] Speaker 03:
coming back and saying, I don't think that's consistent with the scene, it really was not just inconsistent with Agent Knight's conclusions, it was really inconsistent with all of the evidence at the scene.

[00:32:42] Speaker 03:
Because to have been shot from six inches away and have only a bullet fragment, rather than an intact bullet in the brain, there would have had to have been some other location on the scene that would have allowed for that fragmentation

[00:32:55] Speaker 03:
would have allowed a shot to take place.

[00:32:59] Speaker 03:
And within those six inches between the gun and the victim's head, there have been some intermediate objects to cause fragmentation.

[00:33:06] Speaker 03:
And so really, I think, as Dr. Neiblow acknowledged in her testimony at trial, that just wasn't the most likely.

[00:33:12] Speaker 03:
It was certainly possible, but it wasn't the most likely explanation.

[00:33:16] Speaker 03:
And so, again, as she testified... So she just made a mistake?

[00:33:19] Speaker 03:
Yes, Your Honor, she made a mistake.

[00:33:21] Speaker 03:
Well, I think what she did was she was looking with a little bit too blind her to focus solely at that mark that she understood to be soot.

[00:33:29] Speaker 03:
She later said could have been bullet wipe.

[00:33:32] Speaker 03:
In other words, the bullet causing discolorization.

[00:33:34] Speaker 03:
And so once she had sort of a broader view of what happened at the scene, she said, actually, this seems more consistent with a fragmented bullet from a high velocity rifle.

[00:33:47] Speaker 02:
Does the government think that if we agree, let's say we agree with you that there is harmless error here, that it would be beneficial to write the opinion in a way that explains how the district court erred at the Daubert stage?

[00:34:04] Speaker 03:
Your Honor, I want to make sure I'm understanding the question correctly.

[00:34:08] Speaker 03:
I mean, our view is still that there's no Daubert error.

[00:34:11] Speaker 03:
But I do think that.

[00:34:12] Speaker 02:
Right, so my question is, we're going to either assume that there's error and reach harmlessness.

[00:34:18] Speaker 03:
Right.

[00:34:19] Speaker 02:
But should we say something about the error here?

[00:34:23] Speaker 02:
Because it seems like the district court erred in its gatekeeping role.

[00:34:29] Speaker 02:
by taking the qualifications and using that as the way to assess methodology.

[00:34:35] Speaker 03:
So, Your Honor, I'll make the argument now that there was no error.

[00:34:39] Speaker 03:
So, again, I think the easiest way to resolve this is even assuming error was harmless, or excuse me, it was non-predicital plain error.

[00:34:45] Speaker 03:
But we don't think the district court erred, and here's the reason why.

[00:34:49] Speaker 03:
The Supreme Court made clear in Daubert that

[00:34:54] Speaker 03:
Although there is a gatekeeping function, ordinarily the way that you go about testing the credibility of expert testimony that is weak is through the process of cross-examination and the introduction of competing experts.

[00:35:08] Speaker 02:
Was there a credibility problem here?

[00:35:10] Speaker 02:
It seemed like it was a reliability problem focused on

[00:35:14] Speaker 02:
Sure.

[00:35:14] Speaker 02:
Insufficient methodology.

[00:35:15] Speaker 03:
Sure, Your Honor, and credibility was a poor choice of words.

[00:35:19] Speaker 03:
The methodological question is what I was addressing.

[00:35:23] Speaker 03:
And the district court pointed out that, look, we don't have, there's not a lot here to explain the methodology that was applied.

[00:35:30] Speaker 03:
I would say that beyond the one expert report that was attached to the defense motion, there was already, the defense had already been provided with a prior

[00:35:41] Speaker 03:
expert report by Agent Knight where he had, and this was introduced as government exhibit, I believe, 100 at trial.

[00:35:49] Speaker 03:
This report included some more, not a lot, but some more explanation of his methodology, including... Is that in the record?

[00:35:59] Speaker 03:
Your Honor, it's not in the record volume on appeal, but it was an exhibit introduced at trial, and I hope I'm correct in saying that it was exhibit 100.

[00:36:09] Speaker 03:
And that also included all of the measurements that he made at the crime scene.

[00:36:15] Speaker 03:
So again, we recognize that the reports, both of these reports combined, weren't necessarily the traditional expert report that you might find in preparation for testimony in federal trial, where an expert says, you know, here's my background, here are all the methods that I apply, the sources from which I derive those methods, and here's what I concluded in this particular case.

[00:36:37] Speaker 03:
These were actually just reports that he prepared well before his testimony at trial based on his conclusions about the scene.

[00:36:44] Speaker 00:
And let me explore that for a question for a second.

[00:36:48] Speaker 00:
I mean, in the Kumo Tire, doesn't Kumo Tire tell us and Garcia that, you know, when you're talking about law enforcement testimony and when you're talking about, you know, use, for example, the drug agent who's testifying about patterns, their presentation of their background and methodology

[00:37:05] Speaker 00:
is going to look very different than a PhD in some esoteric area, is it not?

[00:37:09] Speaker 03:
I completely agree, Chief Judge Holmes.

[00:37:11] Speaker 03:
And I think I just make maybe two more points on this.

[00:37:14] Speaker 03:
So another point is that Agent Knight explained his methodology more thoroughly at trial.

[00:37:20] Speaker 03:
So at trial, he explained, you know, ordinarily, I would want to use things like rods.

[00:37:25] Speaker 03:
I would want to use protractors.

[00:37:26] Speaker 03:
I would want to use angle measuring devices.

[00:37:30] Speaker 03:
He said, I didn't have those available to me.

[00:37:32] Speaker 03:
I see my time's expired if I briefly.

[00:37:34] Speaker 03:
He said, I didn't do that, but here's what I did.

[00:37:38] Speaker 03:
I shined lights through, I looked at these trajectories.

[00:37:40] Speaker 03:
So he actually explained his methodology at trial.

[00:37:43] Speaker 03:
And the final point I would make is, as I understand the defense's argument, they've effectively conceded that he could testify about all of that trajectory evidence, that they're not raising an objection to that, either as a gatekeeping matter or a methodological matter under Rule 702.

[00:38:01] Speaker 03:
And so all they've objected to

[00:38:03] Speaker 03:
is this venturing into what they are calling forensic pathology testimony.

[00:38:08] Speaker 03:
And so Judge Rashman, returning to your question, we don't think there was any error here because that was a continuation of his trajectory testimony.

[00:38:16] Speaker 03:
But even if you were to assume some small strain beyond his expertise or methodology there, it would be something that was non-prejudicial and therefore not plain error or harmless.

[00:38:32] Speaker 03:
So we ask the court to affirm.

[00:38:33] Speaker 03:
Thank you.

[00:38:33] Speaker 00:
Thank you.

[00:38:36] Speaker 00:
Case is submitted.