[00:00:00] Speaker 02: The final case this morning is 24 deaths, 6-1, 4-6, United States versus Johnson. [00:00:05] Speaker 04: Thank you, Your Honor, Counsel. [00:00:07] Speaker 04: May it please the Court, my name is Shira Keval. [00:00:09] Speaker 04: I'm an Assistant Federal Public Defender and I represent Jonathan Johnson. [00:00:14] Speaker 04: Mr. Johnson should receive a new trial because the government obtained his conviction for indecent exposure by relying on written BOP disciplinary logs and salacious written POP incident reports [00:00:27] Speaker 04: which it offered for their truth even though they were inadmissible hearsay. [00:00:31] Speaker 04: Rule 803 makes clear, and all circuits to weigh and agree, that the government may not offer records of factual findings of legally authorized investigations or non-ministerial observations of law enforcement personnel in criminal prosecutions just because the records were kept and created in the ordinary course. [00:00:51] Speaker 04: And that's exactly what the government did here. [00:00:53] Speaker 04: Without calling a single percipient witness to its other acts evidence, [00:00:57] Speaker 04: The government offered BOP logs that literally logged the BOP's findings of misconduct and what it called incident reports, which were actually packets that reported the BOP's findings of misconduct, including the allegations of misconduct that the BOP found to be true. [00:01:13] Speaker 04: That evidence was inadmissible and in its entirety in this prosecution because it was the factual findings of a legally authorized investigation. [00:01:21] Speaker 04: And the allegation documents themselves were further inadmissible because prison guard accusations of misconduct [00:01:27] Speaker 04: that they personally observed may not be admitted as hearsay over the hearsay prohibition in a criminal prosecution. [00:01:35] Speaker 03: Counsel, can I ask you about the evidence in the case? [00:01:37] Speaker 03: My understanding is the first trial, the government sought to introduce the log and then the disciplinary hearing officer's report. [00:01:46] Speaker 03: And then it was in the second trial, they changed course and did the log and the incidents reports. [00:01:50] Speaker 04: Is that right? [00:01:51] Speaker 04: The labels are correct. [00:01:54] Speaker 04: So yes. [00:01:55] Speaker 04: And the first trial was kind of bonkers in that the custodian of records was allowed to testify about what these logs were. [00:02:03] Speaker 04: We can't challenge that because it ended in a hung jury. [00:02:06] Speaker 04: But if you look at what happened here, it's true that they took off the final findings. [00:02:11] Speaker 04: But there were multiple levels that were all part of the administrative findings that were authorized by the CFR. [00:02:18] Speaker 04: The first was the investigator, and then there was also the original panel that then refers this to the disciplinary officer. [00:02:27] Speaker 04: So on some level, they took off the findings of the disciplinary officer, except that those were contained in the logs, because that was the final finding. [00:02:35] Speaker 04: So I don't know if that answers your question. [00:02:39] Speaker 03: Well, I'm just trying to get a sense of what the evidence was that went before the jury. [00:02:43] Speaker 03: In terms of my review of the record, I guess I was a little unclear about that. [00:02:46] Speaker 04: And Your Honor, it's in the supplemental record, exhibit nine of the supplemental record. [00:02:54] Speaker 04: And it looks like, unfortunately, I have the copy here. [00:02:56] Speaker 04: It doesn't have the page numbers on the copy. [00:02:59] Speaker 04: But it includes the original allegations typed up and called an incident report. [00:03:05] Speaker 04: And then for three of the four, it also includes what the committee had to say about it, which is this is very serious warrants consideration for sanctions not available to the UDC. [00:03:16] Speaker 04: maximum sanctions recommended, and then also the investigation itself that says that it's referring the incident to the UDC. [00:03:26] Speaker 04: So those are what went to it. [00:03:27] Speaker 04: And then the ultimate decision of the disciplinary officer is what's recorded in the log. [00:03:32] Speaker 03: So the documents that are in the record are unredacted, and that's how it was presented to the jury? [00:03:37] Speaker 04: Yes, Your Honor. [00:03:38] Speaker 04: And there's significant testimony from the custodian of records who went into great pornographic detail about what these allegations were. [00:03:47] Speaker 04: So the government here just does not have a theory of admissibility. [00:03:53] Speaker 04: What it did in this case is completely unique. [00:03:56] Speaker 04: I don't know. [00:03:56] Speaker 04: It thought it hacked the system and come up with this new way to introduce allegations of law enforcement officers that's simply not allowed. [00:04:04] Speaker 04: So the government points to a kind of judicial carve out. [00:04:08] Speaker 04: So this clearly falls within the plain text of both of the prohibitions in 8038. [00:04:13] Speaker 04: And the government says, well, there's this judicial carve out. [00:04:15] Speaker 04: And these maybe fall in the judicial carve out. [00:04:17] Speaker 04: And they clearly don't. [00:04:18] Speaker 04: The judicial carve out is for what are purely ministerial records. [00:04:23] Speaker 04: And these are very different. [00:04:24] Speaker 04: These are kind of discretionary reports. [00:04:26] Speaker 04: subjective perceptions. [00:04:28] Speaker 04: They're accusing a specific person of specific misconduct. [00:04:31] Speaker 04: So if you look at the carve-out cases, those are things like a computer printout of every single card across the border. [00:04:38] Speaker 04: But never has any judge carved out an exception for a border patrol agent who writes down every suspicious car, whatever the purpose of what he's doing, if he's anticipating criminal prosecution or not. [00:04:51] Speaker 04: That just doesn't fall within that limited [00:04:54] Speaker 04: ministerial exception. [00:04:55] Speaker 02: Is the 8038 argument, is it here on plain error review? [00:05:00] Speaker 04: I don't believe that it is, Your Honor. [00:05:02] Speaker 04: This was an objection that was more than adequate to alert the district court to the problems with the government's invocation of rule 8036. [00:05:08] Speaker 04: So if you look at the posture of the case, the government says, we acknowledge this is hearsay. [00:05:14] Speaker 04: We're going to get it in under 8036. [00:05:16] Speaker 04: And then Mr. Johnson replied, as he should have by saying, we object to that. [00:05:20] Speaker 04: This is not 8036. [00:05:21] Speaker 04: evidence, and that's because the government cannot use 8036 to admit adversarial BOP incident reports. [00:05:28] Speaker 04: That's the same argument that we're making on appeal. [00:05:32] Speaker 04: I don't know if the court wants me to go into why this would be plain, but I think it clearly is. [00:05:39] Speaker 04: The government can't come up with any legal theory by which this could be admissible. [00:05:44] Speaker 04: And it also doesn't come up with any facts [00:05:47] Speaker 04: that were undeveloped in the record or anything that would defeat plain error to show why this would not be a problem. [00:05:53] Speaker 02: Are there any cases that say it is plain error? [00:05:57] Speaker 04: So, I mean, I want to just start from everybody knows that the government cannot prosecute people with written law enforcement accusations and written administrative findings. [00:06:07] Speaker 04: We don't have, you know, securities fraud prosecutions that are proved up with SEC findings. [00:06:12] Speaker 04: We have live witnesses. [00:06:14] Speaker 04: This is contrary to the text of Rule 803, which has to be read as a whole. [00:06:18] Speaker 04: The government can't come up with any reading of Rule 803 that allows this. [00:06:23] Speaker 04: We have 803.6 and 803.8, which are both addressed. [00:06:29] Speaker 04: We allow certain things in for the same reason, which is that they're trustworthy based on the fact that they were created and kept in the ordinary course. [00:06:37] Speaker 04: And then we have very specific prohibitions that clearly apply to this evidence in 803.8. [00:06:44] Speaker 04: What the government's argument is is we can always escape those prohibitions. [00:06:49] Speaker 04: We came up with this hack. [00:06:50] Speaker 04: We can go to 8036. [00:06:52] Speaker 04: And we can escape these every single time. [00:06:54] Speaker 04: There's no limitation to its argument. [00:06:56] Speaker 04: And no court has accepted it. [00:06:57] Speaker 04: And there are five circuits that have addressed this issue. [00:07:02] Speaker 04: And all of them have said, you cannot escape the specific limitations in 8038 with general hearsay exception in 8036. [00:07:10] Speaker 04: This court, Archuleta and other cases, has said that consensus of the circuits that have reached a question is sufficient to show plain error. [00:07:17] Speaker 04: So if we're asking if the legal error here is plain it is, the legal error is going around to 8038's prohibitions by resorting to 8036. [00:07:27] Speaker 04: And then there's a question of plainness in the application. [00:07:29] Speaker 04: Are these plainly, clearly within the prohibitions of 8038? [00:07:34] Speaker 04: And they are. [00:07:35] Speaker 04: The government makes no real argument [00:07:37] Speaker 04: that these disciplinary logs are anything other than an administrative finding, or the other parts of the incident reports, or really any part of this is something other than an administrative finding. [00:07:48] Speaker 01: Isn't your argument, at least as far as preservation, practically difficult? [00:07:55] Speaker 01: Because what we would expect is, I want to introduce these records. [00:08:01] Speaker 01: Objection, those are not, or why, so just, OK, on what basis? [00:08:07] Speaker 01: 8036. [00:08:10] Speaker 01: And counsel, we object, Your Honor, these are not proper 8036 records, blah, blah, blah, blah, blah. [00:08:20] Speaker 01: And so the judge says, well, I don't know, they seem to fit under 8036 to me. [00:08:28] Speaker 01: Well, then we talk a little bit, but nobody ever says, but it violates another rule of evidence, Judge. [00:08:35] Speaker 01: that we just have a more amorphous conversation about how they're not admissible. [00:08:41] Speaker 01: And then we come up here and we say, well, it was error because it violated another rule of evidence that we never brought up. [00:08:48] Speaker 01: Just see, like if I'm sitting there as the trial judge, I can tell you it's hard to sit there and have all the different rules going around in your head to where you would necessarily pick up that it's violating another rule at the same time. [00:09:06] Speaker 04: I don't think this was a perfect objection, but I do think it was sufficient. [00:09:12] Speaker 04: This happened before trial. [00:09:14] Speaker 04: There was specific factual arguments that he made of these are accusatory documents of prison guards. [00:09:20] Speaker 04: Those don't come in under 8036. [00:09:23] Speaker 04: And then there was a hearing. [00:09:24] Speaker 04: He developed those facts. [00:09:26] Speaker 04: We know exactly what these records are. [00:09:27] Speaker 04: We know how they were created. [00:09:29] Speaker 04: We know who created them. [00:09:31] Speaker 04: We know that they were adversarial. [00:09:32] Speaker 04: This was developed by both the government and the defense. [00:09:35] Speaker 04: And when the judge ruled on it, she did not address this argument. [00:09:41] Speaker 04: Why didn't she address the argument? [00:09:42] Speaker 04: Was it because she didn't realize it was there because he didn't say 8038? [00:09:46] Speaker 04: I don't think so. [00:09:47] Speaker 04: I don't know why she didn't address the argument. [00:09:49] Speaker 01: I mean, if he would have said 8038, she'd have looked at the rule, and it would have probably been pretty apparent. [00:09:55] Speaker 04: Well, and Your Honor, that's why it's plain error. [00:09:57] Speaker 04: So again, I think that we win under either standard of review. [00:10:00] Speaker 04: I don't want to fight too long about this. [00:10:02] Speaker 04: Because of that, we don't expect perfection. [00:10:07] Speaker 04: We don't expect. [00:10:09] Speaker 04: kind of invocations of specific cases. [00:10:11] Speaker 04: We don't expect magic words. [00:10:15] Speaker 04: But here, it was adequate to alert the district court that you cannot use 8036 to admit accusatory documents from law enforcement officers. [00:10:25] Speaker 04: That is, I mean, that's law school 101 that absolutely should have triggered in the judge's mind. [00:10:32] Speaker 04: I've never seen this before. [00:10:33] Speaker 04: I can't remember this happening. [00:10:34] Speaker 04: We don't try people with documents. [00:10:37] Speaker 04: We don't do [00:10:38] Speaker 04: prosecutions with police reports. [00:10:40] Speaker 04: The government's argument, it would be allowed to use this in its case in chief. [00:10:44] Speaker 04: Maybe it wouldn't if it was one incident like this, but imagine that if they prosecuted Mr. Johnson in Louisiana, and they'd done it with all four incidents because they wanted to stack what would have been, I think, a misdemeanor sentence down there, and then only two or three of the guards actually showed up, the government easily, on its theory, would have been like, well, we're just going to prove the other ones up with these incident reports. [00:11:05] Speaker 04: Their theory allows that kind of prosecution [00:11:08] Speaker 04: And that's absolutely not how we do criminal prosecutions in this country, right? [00:11:13] Speaker 04: From 10,000 feet away, it's plainly erroneous. [00:11:16] Speaker 04: From the text of 803, it's plainly erroneous. [00:11:19] Speaker 04: And from every circuit court that has addressed it, it's plainly erroneous. [00:11:23] Speaker 03: Council, can I ask you about your 4-4B argument? [00:11:25] Speaker 04: Absolutely. [00:11:26] Speaker 03: Your brief says that it's just obvious that Mr. Johnson could not have engaged in the act without having the requisite intent. [00:11:34] Speaker 03: But the government says, well, we can't take that for granted. [00:11:38] Speaker 03: that essentially he's not going to contest intent at trial. [00:11:41] Speaker 03: And so our theory and Crawford theory for admissibility is to go to show these prior acts show intent, knowledge, and lack of mistake. [00:11:49] Speaker 03: So was the mens rea sort of contested or how was that presented in terms of the 404B arguments? [00:11:56] Speaker 04: The mens rea was never contested. [00:11:58] Speaker 04: It is true that there was some signal that it might be in the submission of the jury instruction. [00:12:04] Speaker 04: That jury instruction was denied in the first trial as not supported by any evidence. [00:12:09] Speaker 04: And nothing new had come in at the second trial. [00:12:11] Speaker 04: If Mr. Johnson had wanted to introduce some evidence of that, he could have. [00:12:15] Speaker 04: And that would have opened the door potentially to admission of 404B evidence. [00:12:20] Speaker 04: But the government can't come in and say, well, in this hypothetical universe that we cannot even imagine, where this somehow wasn't an intentional act, a knowing act, [00:12:32] Speaker 04: I want to make really clear, the Oklahoma statute says willful, but it also defines willfulness to just mean kind of general intent, that you did the act on purpose. [00:12:41] Speaker 04: There's no requirement of knowledge of the wrongfulness of its cause of conduct, which was something the government did rely on in its 404B notice. [00:12:48] Speaker 04: The government has never articulated any theory by which this evidence would have made the charge more likely to be true. [00:12:57] Speaker 04: The only theory anyone ever came up with was the judge, who said that under [00:13:02] Speaker 04: The logic of improbabilities, it probably wasn't a mistake. [00:13:07] Speaker 04: But the logic of improbabilities doesn't apply in a situation like this. [00:13:12] Speaker 04: It applies where the government can show the facts are true and somehow miss the ball on mens rea. [00:13:18] Speaker 04: And that simply could not have happened in this case. [00:13:21] Speaker 04: The government's argument that any time mens rea is an element, it could anticipate that maybe there would be an issue and it can introduce 404b evidence, I think is completely wrong. [00:13:32] Speaker 04: But even if this court were to either accept that or skip over it, that completely defeats their 403 argument. [00:13:39] Speaker 04: Under 403, under sounding sight and wood, this court has made very clear that if any relevance is inconsequential to the real issue tried, and it is this type of emotional prejudicial evidence, [00:13:51] Speaker 04: It does not come in. [00:13:52] Speaker 04: They reversed in both cases. [00:13:53] Speaker 04: 403 is not an insurmountable hurdle. [00:13:58] Speaker 04: It can be reversed on appeal. [00:13:59] Speaker 04: And this is exactly the type of case where that should happen. [00:14:02] Speaker 04: If I may reserve the remainder of my time. [00:14:04] Speaker 04: Certainly. [00:14:05] Speaker 04: Thank you. [00:14:11] Speaker 00: May it please the court, Cedric Bond, on behalf of the United States. [00:14:15] Speaker 00: For the first time in this case and for the first time in this circuit, [00:14:20] Speaker 00: Defendant asks the court to rule that his prison disciplinary records, which were properly admitted under 8036, should Sue Esponte have been excluded under 8038. [00:14:34] Speaker 00: And because that is not a plain error, this court should reject that argument. [00:14:40] Speaker 00: and affirm the admission of those records under 8036, which has not been challenged on appeal as to the meeting of the 8036 elements, which were the emphasis and the sole focus of defendant's challenge to these records below. [00:15:02] Speaker 02: Wouldn't that argument swallow 8038? [00:15:09] Speaker 02: With that, so 803- Your interpretation of 8036, isn't it contradicted by 8038? [00:15:23] Speaker 02: And under your interpretation, the records, I guess unless there's a successful objection, the records would come in anyway. [00:15:30] Speaker 00: So 8038 has a specific role. [00:15:33] Speaker 00: It has a role, as this court identified in Hayes, or discussed in Hayes, [00:15:38] Speaker 00: of intended to apply to observations of law enforcement officials at the scene of a crime and investigation of that crime and not to matters of routine reports of non-adversarial settings. [00:15:54] Speaker 00: It is really focused on the case in chief evidence of a criminal prosecution. [00:16:01] Speaker 00: And here we don't have any holding by this court or any other circuit [00:16:07] Speaker 00: that Bureau of Prisons officers are law enforcement officers as contemplated by the 8038 exception. [00:16:15] Speaker 00: They're in a unique role within the panoply of different kinds of law enforcement within this government. [00:16:24] Speaker 00: In some states, prison guards are not law enforcement. [00:16:29] Speaker 00: In the federal system, they are. [00:16:31] Speaker 00: But in the context of what they do is not investigating crimes. [00:16:35] Speaker 00: They are there for the safety, security of the institution, for the well-being and safekeeping of the facility and the inmates within their population, for the correctional treatment of those inmates, which, as explained in the record at the motions hearing in a trial, was the purpose for this inmate disciplinary proceeding. [00:16:53] Speaker 00: And that's not ever been established as the kind of adversarial context that is contemplated in the 8038 [00:17:03] Speaker 00: case law, as discussed in Hayes, or in other contexts that this court has addressed 8038. [00:17:13] Speaker 00: And I'll also note that those kinds of administrative and regulatory proceedings are far closer to the ICE records that this court has allowed to come in, including in the [00:17:30] Speaker 00: Medrano case, which involved data regarding the facts around apprehension that were observed by the law enforcement officers, Border Patrol and ICE, and allowed those in because they were a part of an administrative and regulatory context and not [00:17:47] Speaker 00: not part of a criminal investigation into this crime, into this conduct that they were addressing there. [00:17:55] Speaker 03: Counsel, may I ask, is the government's position that BOP officers, correction officers, are not law enforcement personnel for purposes of 8038? [00:18:04] Speaker 00: It's not clear to me that they are. [00:18:08] Speaker 00: That's not been developed. [00:18:10] Speaker 00: It wasn't developed below. [00:18:12] Speaker 00: It's not been established by this court. [00:18:17] Speaker 00: on for one part that makes this not a plain error and if it were to be resolved then that doesn't require reversal in this case here. [00:18:30] Speaker 00: I don't think that they would qualify as law enforcement officers for the purposes because of what Hayes says is the point of this [00:18:42] Speaker 00: this kind of this exception to the hearsay exception of 8038 and so I think that that really makes that a difference here because they have a different role than what is [00:18:58] Speaker 00: commonly understood as the law enforcement role. [00:19:01] Speaker 03: Yeah, but isn't one of their roles within the Bureau of Prisons to investigate any incidents, to report them, and then go through a disciplinary process where it has adverse consequences for the inmates? [00:19:11] Speaker 03: That may not be their primary duty, but it's certainly something that they are tasked with doing. [00:19:15] Speaker 03: Isn't that right? [00:19:16] Speaker 00: Certainly. [00:19:17] Speaker 00: And that is an administrative and regulatory procedure. [00:19:22] Speaker 00: Many of the prohibited acts that are involved in that are not crimes. [00:19:28] Speaker 00: they are necessary to the proper functioning of a facility and the safe keeping of the inmate population and the staff. [00:19:36] Speaker 00: But what about when they are crimes? [00:19:38] Speaker 03: Here, this offense occurred within the facility, a BOP transfer facility. [00:19:44] Speaker 03: It was investigated as a crime, as prosecuted as a crime. [00:19:48] Speaker 03: There's contraband in facilities crimes under Title 18. [00:19:52] Speaker 03: So again, for thinking about the duties of a BOP official and whether they're law enforcement personnel, [00:19:58] Speaker 03: If it is a crime and it ends up being prosecuted in a criminal proceeding, would they qualify at that point? [00:20:04] Speaker 00: I think that what addresses that is, if you look in the testimony and the record, we have different kinds of Bureau of Prisons officers. [00:20:13] Speaker 00: We have correctional officers who have a mandatory duty to observe and write an incident report under the inmate disciplinary program of conduct that meets one of the prohibited acts, and then we have [00:20:27] Speaker 00: investigators. [00:20:28] Speaker 00: We had two different kinds of investigators. [00:20:30] Speaker 00: We had Special Investigative Agent Travis Leisner who testified. [00:20:34] Speaker 00: And when there is a criminal, when the incident report, the administrative report implicates a criminal law, then that goes to the investigators who then have a, they take over from there. [00:20:48] Speaker 00: And any of their reports that they made based on their investigations into that would likely fall under this [00:20:57] Speaker 00: under this 8038 exception and would not be able to come in because they have a criminal prosecutorial investigatory role. [00:21:10] Speaker 00: That's a different role from what the correctional officer has, and I think that that makes a difference in how the court should analyze this, particularly under the plain error review. [00:21:19] Speaker 03: You analogized to ICE records and to ICE agents, but do we have any cases where [00:21:27] Speaker 03: BOP records of this nature, incident reports in particular, have been admitted under this hearsay exception? [00:21:34] Speaker 03: Under 8036 or 8038? [00:21:37] Speaker 00: Well, as they tie together. [00:21:39] Speaker 00: OK. [00:21:40] Speaker 00: So I don't know if none where the appellate issue has been addressed and resolved that I'm aware of. [00:21:50] Speaker 00: And that kind of goes to the difficulty [00:21:55] Speaker 00: both for the district court in resolving this, where that specific 8038 challenge was not presented to the court, and it also goes to this court's plain error review on that factor as to how that should be resolved. [00:22:18] Speaker 00: I'll also note that if, unless there's further questions about the 8038 issue, [00:22:24] Speaker 00: I'd like to point to the 403 balancing, which really is the key issue for the evidentiary challenges in this case. [00:22:35] Speaker 00: The question is, did the district court, or is this court, firmly convinced that the district court made a clear error of judgment or failed to make a permissible choice under the context of these circumstances? [00:22:53] Speaker 00: And those circumstances were, the 404b evidence was offered, went to an element of the offense. [00:23:01] Speaker 00: Throughout the trial court proceedings, Mr. Johnson signaled that he intended to challenge this element. [00:23:09] Speaker 00: The district court gave careful limiting instructions as to this, both before at the beginning of the trial, telling them that they are to, if they're told not to consider something, [00:23:22] Speaker 00: then they must not discuss it in the deliberation room. [00:23:26] Speaker 00: And if they hear something is told to be considered only for a particular purpose, then they must only consider it for that purpose. [00:23:39] Speaker 00: That was at the beginning, record 283. [00:23:43] Speaker 00: And then at the end, record at 335, explain the full limiting instruction. [00:23:50] Speaker 00: two pages before that or three pages before that in the record, a limiting instruction that he's only on trial for the crime charged. [00:23:58] Speaker 00: So the court was very careful in restricting this evidence to how it should be used and made a point of ordering the government to make its point and move on. [00:24:09] Speaker 00: And the government did just that. [00:24:11] Speaker 00: At the closing arguments, the government only referenced these [00:24:17] Speaker 00: these prior acts with regards to the knowing and willfulness factor. [00:24:23] Speaker 00: And so those limiting instructions are a necessary part of this 403 balancing. [00:24:33] Speaker 03: Well, what about the argument Mr. Johnson, I think, puts forward about the testimony that was related to the records and the admission of the records, and then the closing argument where counsel [00:24:44] Speaker 03: I believe referred to the records in calling Mr. Johnson a pervert. [00:24:49] Speaker 03: You heard a recitation that the testimony was pornographic detail. [00:24:55] Speaker 03: How does that impact our assessment of prejudice? [00:24:57] Speaker 00: Thank you, Your Honor. [00:24:59] Speaker 00: That did need to be cleared up. [00:25:01] Speaker 00: The language, the adjectives that are being referenced by Mr. Johnson on appeal here, those were not made before the jury. [00:25:12] Speaker 00: The government did not [00:25:13] Speaker 00: tell the jury, hey, you should convict this pervert. [00:25:16] Speaker 00: That was a sentencing advocacy and a proper sentencing advocacy at that. [00:25:22] Speaker 00: And the conduct that was presented in these 404b prior similar acts were just that. [00:25:37] Speaker 00: They were prior similar acts. [00:25:40] Speaker 00: These were just careful, factual, [00:25:43] Speaker 00: explanations of what the officer there with a duty to report and a duty to do so accurately observed. [00:25:53] Speaker 00: That's what was seen and that's what was presented to the jury. [00:25:58] Speaker 00: I'll note that some of the information that was on the back of three of the incident reports regarding the unit disciplinary committee recommendations and some of that stuff, [00:26:11] Speaker 00: It does not appear that was read into the record before the jury. [00:26:16] Speaker 00: Those were sent back to the jury room, but those were not harped on, that was not emphasized. [00:26:22] Speaker 00: What was emphasized, and just reading it into the record manner, was the prior conduct involving the same mental state of masturbating, exposing oneself in front of the officers. [00:26:38] Speaker 00: And that's what it was used for. [00:26:41] Speaker 00: in the closing arguments. [00:26:43] Speaker 00: That's how it was used. [00:26:44] Speaker 00: And I think that what goes to the standard of review regarding this, whether we're talking a plain error or an abusive discretion, which is a clear abuse of discretion for any 403 errors, the first two prongs of plain error are that they're buried in error and that it would be plain. [00:27:05] Speaker 00: And so just focusing on that error, whether there's an error, this court is very differential. [00:27:11] Speaker 00: to a district court's balancing. [00:27:14] Speaker 00: On appeal, Mr. Johnson asked this court to do two things while reviewing this trial court's 403 balancing, both of which are contrary to the precedent of this court. [00:27:26] Speaker 00: First, Johnson asked this court to really undertake its own balancing or rebalancing of this evidence. [00:27:33] Speaker 00: And second, to give the 404B evidence its least reasonable probative force. [00:27:41] Speaker 00: and the potential danger of unfair prejudice, its maximal potential danger for prejudice. [00:27:48] Speaker 00: Both of those are contrary. [00:27:49] Speaker 00: The first one's contrary to the substantial deference that this court gives to a trial court's 403 balancing, as discussed in Herrera and Cerno and in the Summers case recently. [00:28:02] Speaker 00: And the second inverts the standard that this court has established and instructed trial courts as to how they should [00:28:10] Speaker 00: review 404b evidence, and that is that they should take the evidence and give the proposed evidence its maximum reasonable probative force and its minimum reasonable prejudicial value. [00:28:27] Speaker 00: And that's the standard that they should use, recognizing that excluding evidence that is relevant under 403 is an extraordinary remedy that should be used slightly. [00:28:40] Speaker 00: In this case, the district court held a hearing on this. [00:28:43] Speaker 00: The district court initially excluded the DHO reports, and I think rightly did so, did a careful analysis of that and concluded that those shouldn't come in. [00:28:58] Speaker 00: And then the district court did a subsequent review of this, of the incident reports, weighed it, and made a careful decision [00:29:09] Speaker 00: And I think that the court should defer to that decision on appeal. [00:29:12] Speaker 00: And I'd ask that the court affirm the conviction and sentence of Mr. Johnson. [00:29:18] Speaker 00: Thank you, counsel. [00:29:23] Speaker 02: Could you give her two minutes? [00:29:28] Speaker 04: Thank you, your honor. [00:29:30] Speaker 04: The government did not develop this law enforcement officer argument in any way in its briefing. [00:29:35] Speaker 04: And I'm frankly shocked that they've brought it up today. [00:29:37] Speaker 04: All police officers wear many hats, and no court has ever asked for Rule 803 which hat was this person wearing at the time. [00:29:46] Speaker 04: Every court to ever look at someone who's a sworn law enforcement officer has held that they are law enforcement officers for this purpose. [00:29:54] Speaker 04: If you look at Kate's, a Fifth Circuit case in our briefing, you know, an escape report by a public guard, that's the report of a law enforcement officer. [00:30:05] Speaker 04: Another case, USV Lundstrom 880, F3rd 423, 8th Circuit 2018, says, Office of Thrift Supervisor Examiners are not law enforcement officers because they are not people who conduct criminal investigations, collect evidence, or bring criminal charges. [00:30:23] Speaker 04: Every time a BOP card is acting, sure, his goal is to maintain law and order within the prison. [00:30:28] Speaker 04: Every law enforcement officer has limited jurisdiction. [00:30:32] Speaker 04: And one of the tools in his belt is to escalate it to criminal charges every report that your position is It's all in all all all prison officials are law enforcement Yes, and certainly BOP guards the government just admitted. [00:30:47] Speaker 04: They're all sworn law enforcement officers There's some disagreement on the periphery state oaths where they're talking about someone who's not a law enforcement officer They're saying we have a chemist [00:30:55] Speaker 04: And that chemist often does work that's used in criminal prosecutions. [00:30:59] Speaker 04: There's a disagreement among the circuits about whether that person would count as a law enforcement officer. [00:31:03] Speaker 04: There is no disagreement. [00:31:05] Speaker 04: There is no argument. [00:31:06] Speaker 04: There is no fact that the government could have developed below to somehow escape the idea that these guards were law enforcement officers. [00:31:16] Speaker 04: Just to clear up the record, the word pervert was used only at sentencing. [00:31:20] Speaker 04: But the government absolutely said and relied on the fact that these were things [00:31:26] Speaker 04: allegations by people who knew that they were used to maintain order and decide if someone was a security threat and argued in closing that prison guards should not have to be subjected to this behavior. [00:31:38] Speaker 04: They appeal to the emotions of the jury after citing all of this evidence in closing. [00:31:44] Speaker 04: Thank you. [00:31:44] Speaker 02: Thank you, counsel. [00:31:45] Speaker 02: We appreciate the arguments. [00:31:46] Speaker 02: That was helpful. [00:31:47] Speaker 02: And you are excused and the case is submitted.