[00:00:00] Speaker 02: 23-1217, United States versus Mill Iron. [00:00:07] Speaker 02: Council for Appellant, if you would make your appearance and proceed. [00:00:12] Speaker 03: May it please the Court, Robert Fishman on behalf of Lori Mill Iron. [00:00:17] Speaker 03: Before I begin, I just want to take a second to thank the Court for your scheduling accommodation. [00:00:23] Speaker 03: I'm sure it caused some inconvenience. [00:00:24] Speaker 03: I appreciate it. [00:00:26] Speaker 03: The perjury charged in Count 6, the government tells us the problem with my client's responses to the question of why Mr. Rudolph was so generous with her was that she did not tell them initially that the reason was because she was involved in a long-term intimate relationship with Mr. Rudolph [00:00:48] Speaker 03: and that he had supported her financially throughout that relationship. [00:00:52] Speaker 03: But as the court knows, it wasn't more than five pages worth of grand jury testimony. [00:00:58] Speaker 03: It's hard to know for sure, but I estimated at about two minutes where follow-up and better and more precise questioning elicited the very information the prosecution was after the entire time. [00:01:13] Speaker 03: So our position is that there are a number of things that follow from that fact. [00:01:20] Speaker 03: One is the question of the materiality of her initial statement that she did not know and whether her comment that she could not know could be deemed material when within moments, [00:01:35] Speaker 03: she gave the prosecution exactly the information it was after. [00:01:39] Speaker 03: And not just that, she actually explained her initial response and its limitations and what it was based on. [00:01:50] Speaker 03: And it was based on, of course, the lead up to the question, which was going through the document is not in evidence. [00:01:58] Speaker 03: I know there's specific [00:02:00] Speaker 03: references to page 165, a very large exhibit with what I assume to be hundreds and hundreds of bank deposits into Ms. [00:02:10] Speaker 03: Milron's account from Mr. Rudolph. [00:02:12] Speaker 04: Do we have to consider the statement she made in the context of her testimony as a whole here? [00:02:19] Speaker 04: And anticipating that you're going to say yes, what's your case for that? [00:02:24] Speaker 04: My case for that So it's so do you say yes first? [00:02:29] Speaker 03: I do say yes first and the case is Shalty 10 circuit 2014 [00:02:38] Speaker 03: The context of the question is critically important in evaluating ambiguity in light of the testimony as a whole. [00:02:47] Speaker 03: That is a case dealing with ambiguity, and of course the argument I'm making is the question, why was he so generous with you, is ambiguous. [00:02:56] Speaker 03: I think [00:02:58] Speaker 03: The party spent a lot of time on the distinction between fundamental and arguable ambiguity, I think, as in Farmer. [00:03:05] Speaker 03: I don't think this court needs to take a position on that. [00:03:07] Speaker 03: Either way, it was ambiguous, and I think it does not support a perjury conviction, no matter what label you affix to it. [00:03:14] Speaker 01: Doesn't ambiguity suggest there are two different meanings? [00:03:16] Speaker 01: Isn't this just more vague than anything? [00:03:21] Speaker 03: I'm not sure that that is a distinction borne out in the case law. [00:03:24] Speaker 03: I mean, I think it is not clear what the question is asking. [00:03:28] Speaker 03: I think you could call that a vague question or an ambiguous question. [00:03:31] Speaker 01: Explain to me what the ambiguity is here where there would be two different meanings and the defendant may have misunderstood. [00:03:37] Speaker 03: Why was he so generous with you? [00:03:40] Speaker 03: when he gave you $200 on April 15th, $2,000 on May 19th, because that is the lead up to the question is going through the bank records and the numerous deposits over a three year period. [00:03:56] Speaker 03: And my client says, I don't know why. [00:03:58] Speaker 03: And then she says, additionally, I don't know exactly why. [00:04:03] Speaker 03: And then when she is pressed, [00:04:06] Speaker 03: about her relationship and how long and ongoing it is and how he would give her money for whatever she asked for, she says, she explains her answer and says truthfully, well, I know that he was giving it to me because we were involved in a relationship. [00:04:24] Speaker 03: I just don't know exactly what each one is for. [00:04:27] Speaker 03: I can't tell you why he gave me $2,000. [00:04:31] Speaker 03: on May 19th, 2017. [00:04:33] Speaker 02: Mr. Fishman, it's my recollection anyway that in the run-up to those questions, they were talking about him giving her more than her salary in a year. [00:04:43] Speaker 02: It wasn't nickel and diming. [00:04:45] Speaker 02: It was talking about why did he give you such large sums of money? [00:04:49] Speaker 02: And in response to that, what is so ambiguous about she either knows or she doesn't? [00:04:55] Speaker 02: And supposedly, she claims she didn't know, right? [00:05:01] Speaker 03: Well, she both does know and does not know. [00:05:05] Speaker 03: As she explains, she knows that she's getting $60,000 in 2017, for example, because she's involved in an intimate relationship with this man. [00:05:15] Speaker 03: She does not know why he gave her $2,000 on May 19. [00:05:20] Speaker 02: Well, the question related to the $60,000, and she could have responded just in the way that you indicated, that she was in an intimate relationship with her and therefore [00:05:29] Speaker 02: that relationship had a financial connection. [00:05:35] Speaker 02: I'm not saying quid pro quo, but it had a financial connection to it. [00:05:39] Speaker 02: And that would have been presumably material to a jury that's trying to determine whether Mr. Rudolph had a motive to kill his wife to get the insurance proceeds, right? [00:05:51] Speaker 03: Sure, and the argument would be much more compelling, in my view, if she had not actually told the grand jury all of that, which she did. [00:06:00] Speaker 03: And as we know from the case law, it is precise probing questioning. [00:06:06] Speaker 03: That is the burden of the examiner to ferret out the meaning of answers that the examiner is not satisfied with and to press the witness for more precise answers to elicit the information [00:06:19] Speaker 03: the examiner is after. [00:06:20] Speaker 03: That's what the law says. [00:06:22] Speaker 03: That's what the Supreme Court says in Bronston. [00:06:25] Speaker 03: It's exactly what happened in this case. [00:06:27] Speaker 02: And when you spoke to her providing the information that was at issue here, that information related to the romantic relationship, related to the fact that he gave her money, right? [00:06:41] Speaker 02: Isn't that a separate question from what his motivation was in giving her the money? [00:06:46] Speaker 03: Well, I think that also goes to the ambiguity of the initial question. [00:06:53] Speaker 03: Because if it's construed as motive, maybe it is a quid pro quo. [00:06:59] Speaker 03: Maybe it's because he's generous. [00:07:01] Speaker 03: Maybe it's because he wants to see the relationship continue. [00:07:06] Speaker 03: It is different, I think, distinguishable from [00:07:11] Speaker 03: Why did he give you this money and not other employees? [00:07:16] Speaker 03: There can be all sorts of motives that Mr. Rudolph had that are distinguished from the fact of their relationship. [00:07:26] Speaker 02: What basis would there really be? [00:07:30] Speaker 02: Did he give any other employee double their salary? [00:07:33] Speaker 03: No, but as Ms. [00:07:35] Speaker 03: Milron said, he was very generous with lots of employees and gave them extra money for all sorts of things. [00:07:41] Speaker 04: Let me ask you a question. [00:07:42] Speaker 04: I just want to make sure we're sticking with the record here. [00:07:46] Speaker 04: Does the record demonstrate how much money he gave other employees? [00:07:52] Speaker 04: Just sort of anecdotally. [00:07:54] Speaker 04: I mean, we know, like she said, he bought them washers and dryers, gave them money when they needed help. [00:08:02] Speaker 03: I think it's a fair reading of my client's grand jury testimony and the trial testimony. [00:08:08] Speaker 03: I think it's fair to assume that she received much, much more money from Mr. Rudolph than anybody else. [00:08:14] Speaker 01: OK. [00:08:15] Speaker 01: Is the ambiguity, as I'm understanding you here today and I didn't understand it before, you're saying the ambiguity is in asking, what was this particular chunk of money for? [00:08:28] Speaker 01: And the $60,000 [00:08:31] Speaker 01: would be a different answer than 2,000 of the 60,000. [00:08:34] Speaker 03: I think it's broader than that, Judge Phillips. [00:08:37] Speaker 03: I think it is both in ambiguity in the sense of, are you asking me what Mr. Rudolph's motive was? [00:08:45] Speaker 03: And how am I supposed to know what is really motivating him here? [00:08:51] Speaker 03: Her initial answer suggests she thinks this is, and I would say reasonably, she thinks this is a character question. [00:08:58] Speaker 03: She says, I don't know, but, you know, he was a generous person, so why is he giving me so much money? [00:09:04] Speaker 03: Because he's a generous person. [00:09:06] Speaker 01: Well, one time she answered the question, I don't know, and later she answered the question, I do know. [00:09:11] Speaker 01: Why is that contradiction not enough? [00:09:14] Speaker 03: Well, it's not enough because she explains [00:09:17] Speaker 03: She explains the seemingly contradictory answers. [00:09:21] Speaker 03: And the contradiction is she knows she's getting this money because she's involved in a relationship with the man. [00:09:27] Speaker 03: She does not know why she was given $2,000 on May 19th. [00:09:32] Speaker 03: So she both knows and doesn't know. [00:09:34] Speaker 03: And she is telling the grand jury she is explaining her initial answer and the limitations of it. [00:09:41] Speaker 03: I know I'm involved in an intimate relationship with this man. [00:09:45] Speaker 03: And that's why he's paying me $60,000. [00:09:48] Speaker 03: That's why he's giving me $60,000 in 2017. [00:09:51] Speaker 03: I can't tell you what any of those individual deposits are for. [00:09:55] Speaker 03: And so when the prosecution is walking me through this document and asking me about these deposits, I just can't say. [00:10:02] Speaker 03: But now that the examiner has clarified, and I understand that he's really not, it's really not about the $60,000 per se, and it's really not about $2,000 on May 19th. [00:10:15] Speaker 03: It's about the fact of their relationship. [00:10:18] Speaker 03: And when she understands that, she says, oh, well, yeah, sure. [00:10:22] Speaker 03: I mean, if that's what you're asking, yes, we're involved in a long-term intimate relationship. [00:10:29] Speaker 02: Let me shift gears for a second, Mr. Fishman. [00:10:32] Speaker 02: I want to talk about the multiplicity challenge, the double jeopardy challenge. [00:10:37] Speaker 02: And as it relates to that, there was no rule 12b3 motion filed on double jeopardy grounds in the district court, right? [00:10:49] Speaker 02: Correct. [00:10:50] Speaker 02: And there is no argument made here for good cause as to why we should consider this argument. [00:10:57] Speaker 03: I did not make a good cause argument. [00:10:59] Speaker 03: What I did was I cited US v. Hardwell, which says double jeopardy claims can be raised for the first time on appeal and considered de novo, not subject. [00:11:11] Speaker 02: I recognize Hardwell, but the reality is rule 12 v. [00:11:14] Speaker 02: 3 is pretty clear that you're supposed to raise a double jeopardy argument. [00:11:18] Speaker 02: If you don't raise a double jeopardy argument, it's waived but for a showing of good cause. [00:11:26] Speaker 03: Hardwell says what Hardwell says, but it seems to me that there what is the well help me then Reconcile Hardwell with the with the plain language of that rule so that I know what to do All I can tell your honor is Is the rule that you're well aware of that one panel is bound by the decision of another and Hardwell says what it says and that's what I'm relying on I can't I [00:11:53] Speaker 03: I can't give you anything more than that. [00:11:55] Speaker 03: I understand the provisions of Rule 12. [00:11:57] Speaker 03: I understand the typical rules that apply to waiver and preservation. [00:12:02] Speaker 03: And I read Hardwell and I say, Hardwell says something different. [00:12:09] Speaker 02: Okay. [00:12:11] Speaker 02: I take it that there is no dispute on, going back to perjury now, there's no dispute that [00:12:17] Speaker 02: All you need was one of the statements, right? [00:12:20] Speaker 02: I mean, the district court gave an instruction, which is not contested here, which said that the jury only needed to find in these counts that had underlined statements that were perjurious, allegedly, that only one of them was, in fact, perjurious in order for the count to be sufficient for purposes of guilt. [00:12:42] Speaker 02: There's no dispute about that, right? [00:12:45] Speaker 03: Unanimity as to each perjury count is essentially what you're saying. [00:12:49] Speaker 03: Yeah, there's no dispute about that. [00:12:51] Speaker 02: No, the court didn't say- No, that's not what I'm saying. [00:12:53] Speaker 02: What I'm saying is that, for example, in Count 6, there were two specific statements. [00:12:59] Speaker 02: And as it relates to that, as I read that instruction and as our case law, I think, supports the notion, I don't know why and I don't know exactly why in Count 6, all you need to find is one of them. [00:13:12] Speaker 02: I don't know why. [00:13:13] Speaker 03: That's correct. [00:13:14] Speaker 02: Okay. [00:13:15] Speaker 03: I agree with that. [00:13:21] Speaker 03: I think I'm going to reserve the remainder of my time for rebuttal if there are no questions. [00:13:26] Speaker 03: That's fine. [00:13:32] Speaker 00: May it please the court? [00:13:34] Speaker 00: Marissa Miller for the United States. [00:13:36] Speaker 00: I'd like to start just really quickly by addressing the court's questions about hardwell. [00:13:41] Speaker 01: Please do. [00:13:42] Speaker 00: If you look at the Hardwell opinion, it cites a previous case from the 10th Circuit, which is 9844 South Titan Court. [00:13:51] Speaker 00: And that's a case in which this court said that double jeopardy claims can be reviewed for the first time on appeal, but they are subject to the plain error standard. [00:13:59] Speaker 00: So when Hardwell says you can address them for the first time on appeal, it's really just reiterating the rule that you can address it for the first time on appeal under the plain error standard. [00:14:09] Speaker 00: And after this court's decision in Leffler, [00:14:11] Speaker 00: the fact that Ms. [00:14:12] Speaker 00: Milliron didn't brief the plane error standard. [00:14:14] Speaker 00: means that this argument has been waived. [00:14:17] Speaker 02: Well, is the plain error standard actually the operative standard here? [00:14:20] Speaker 02: I mean, we've had, in the context of, for example, Burke, where we dealt with the suppression motion issue, and we said that the rule actually, when you construe the law, the rule is the operative principle, not our jurisprudential plain error standard. [00:14:35] Speaker 02: And under the rule, as opposed to invoking plain error, you have to invoke good cause. [00:14:41] Speaker 02: You're nodding, so I take it you're following along with what I'm saying. [00:14:44] Speaker 00: Yes, Your Honor. [00:14:45] Speaker 00: And my probably unsatisfying answer is that because Ms. [00:14:48] Speaker 00: Millern didn't argue good cause or plain error, that's not something that this court really has to resolve. [00:14:55] Speaker 00: I'd like to push back a bit as well on Ms. [00:14:59] Speaker 00: Millern's discussion of the perjury charge in Count 6 and this idea that the context before the government's question [00:15:08] Speaker 00: made it confusing as to whether the government was asking about specific payments or the payments as a whole. [00:15:15] Speaker 00: And that's supplemental volume two. [00:15:18] Speaker 00: It starts at 354. [00:15:20] Speaker 00: There really are very few questions, if any, about specific payments and what they were made for. [00:15:25] Speaker 00: Instead, the discussion that occurs before the government's question is really all about, you know, was this money part of your salary? [00:15:32] Speaker 00: Did your other coworkers receive a similar amount? [00:15:38] Speaker 00: It's not credible. [00:15:39] Speaker 00: And I think that is the reason that that's the same conclusion the jury reached to say that she was confused by this question because it was asking about specific payments. [00:15:48] Speaker 01: What is the government's answer to the truthful answer to why did he give you this money? [00:15:55] Speaker 01: What do you say the truthful answer was? [00:15:59] Speaker 00: You know, certainly the answer we were hoping for was I don't want that. [00:16:03] Speaker 01: I want to know what the truthful answer is that she perjured herself on. [00:16:07] Speaker 00: is that she was in a relationship with Mr. Rudolph. [00:16:10] Speaker 01: And there are all kinds of reasons that someone in a relationship may give money to the other person. [00:16:15] Speaker 01: It could be, I love you dearly. [00:16:17] Speaker 01: It could be, please don't tell on me. [00:16:20] Speaker 01: It could be, I've got this problem with this hunting group, and I've perjured myself in that, and if you say a word about it, I'm really going to get my house burnt down. [00:16:31] Speaker 01: Even if I just don't understand right now, and that's what I need help with, is why she didn't have to pin the witness down on that. [00:16:41] Speaker 01: In other words, she doesn't know if he's scared of her, if he's in love with her, if he's hunting. [00:16:46] Speaker 01: She just can't know that. [00:16:48] Speaker 00: So I think my response to that would be we, again, really have to focus on the whole context. [00:16:52] Speaker 00: You have someone who's been in a romantic relationship with their coworker for 10 years, [00:16:57] Speaker 00: The government is asking you all these questions about this time that your coworker gave you thousands of dollars in cash and whether the other people in your office got that cash. [00:17:05] Speaker 00: And then the government asks you, why was this coworker so generous to you? [00:17:10] Speaker 00: I think intuitively, you are going to understand that the government is asking about the nature of your relationship. [00:17:16] Speaker 01: Well, I just gave you alternatives, alternative answers that are not the same. [00:17:21] Speaker 01: And one of them would be truthful, one of them would not be truthful. [00:17:23] Speaker 00: So I would disagree with that. [00:17:25] Speaker 00: I think there can be multiple truthful answers to a question, but the answer given here, I don't know why, was not true because she did know why. [00:17:33] Speaker 01: What if he was afraid that she would tell on him and that's why she gave the money? [00:17:37] Speaker 00: If she had said that, then presumably we would not have charged her with perjury. [00:17:42] Speaker 01: Well, that's different than he was in love with me. [00:17:46] Speaker 00: Again, Your Honor, I do think the fact that you can answer the question in different ways doesn't necessarily mean [00:17:52] Speaker 00: that it can't be perjured. [00:17:54] Speaker 01: It's not different ways. [00:17:55] Speaker 01: It's different answers. [00:17:57] Speaker 01: The question is, why did he give you money? [00:18:01] Speaker 01: Get inside his head and tell us, under oath, why he gave you money. [00:18:05] Speaker 01: It's not your understanding of it, but why he did that. [00:18:09] Speaker 01: And he was afraid of me or he was in love with me are two totally different things. [00:18:16] Speaker 00: Your Honor, I would also, I think, point out that we are under the doctrine of arguable ambiguity. [00:18:22] Speaker 00: And so this is ultimately a sufficiency of the evidence analysis, which means it doesn't necessarily matter how this court might have decided the issue if they were on the jury. [00:18:32] Speaker 00: The jury was given a question, which is, how did Ms. [00:18:35] Speaker 00: Milliron understand this statement? [00:18:37] Speaker 00: Was she genuinely confused by it? [00:18:40] Speaker 00: Or did she know exactly what the government was asking? [00:18:43] Speaker 00: And I think looking at all the evidence, a rational fact finder could conclude that Ms. [00:18:49] Speaker 00: Milliron understood exactly what the government was asking. [00:18:51] Speaker 01: Would we know the first time that she was asked about the relationship? [00:18:55] Speaker 01: She admitted it. [00:18:56] Speaker 01: She didn't ever say, we weren't in a relationship. [00:18:59] Speaker 01: That would be perjury. [00:19:01] Speaker 00: Yes, Your Honor, she did admit it. [00:19:05] Speaker 00: The crime of perjury is committed right once that false statement comes out. [00:19:09] Speaker 00: You can't undo it. [00:19:10] Speaker 00: And certainly we can look at those statements, but I think that the record kind of belies the claim that Ms. [00:19:16] Speaker 00: Milliron was just candid about her relationship with Mr. Rudolph when the government asked. [00:19:20] Speaker 04: Well, how about this? [00:19:21] Speaker 04: We have a case, USV Hilliard. [00:19:23] Speaker 04: It says a perjury conviction may not rest on an answer that is literally true. [00:19:28] Speaker 04: And assuming that Judge Phillips has pinpointed it here and that that question that was asked is asking for Rudolph's state of mind to which she can't for sure know. [00:19:41] Speaker 04: So it's literally true but not responsive and arguably misleading by negative implication. [00:19:47] Speaker 04: We said that can't give rise to a perjury conviction. [00:19:53] Speaker 04: So that seems to be a problem for you. [00:19:57] Speaker 04: And I guess the other problem I have is we seem to all agree you have to look at it in context. [00:20:03] Speaker 04: And for several pages before this, she at least had been talking about specific things, why she was getting money from Rudolph. [00:20:13] Speaker 04: And why was he giving you money? [00:20:16] Speaker 04: He would help me out. [00:20:17] Speaker 04: For what? [00:20:18] Speaker 04: Expenses. [00:20:18] Speaker 04: What kind of expenses? [00:20:19] Speaker 04: A variety of things. [00:20:21] Speaker 04: Can you provide me some examples? [00:20:23] Speaker 04: To pay bills and for education. [00:20:26] Speaker 04: And then various places throughout this, she talks about other things he was giving her money for. [00:20:31] Speaker 04: But then we switch over here. [00:20:34] Speaker 04: And she does say Larry was a very generous person. [00:20:37] Speaker 04: Why was Larry so generous to you? [00:20:39] Speaker 04: And she says, I don't know why. [00:20:41] Speaker 04: But like I said, he would give other people things. [00:20:44] Speaker 04: And then the next question was not, I'm not asking you why he was giving what you were buying with it. [00:20:52] Speaker 04: I want to know why he gave it to you. [00:20:54] Speaker 04: That was not the question. [00:20:56] Speaker 04: And the next question is, so your testimony before the members of the grand jury today is that you don't know exactly why. [00:21:04] Speaker 04: I mean, that's a softball, isn't it? [00:21:07] Speaker 04: For her? [00:21:08] Speaker 04: No, I don't know exactly why. [00:21:10] Speaker 04: Did he tell you why he's being so generous? [00:21:13] Speaker 04: He helped me with things. [00:21:16] Speaker 00: So to take your questions kind of in reverse order. [00:21:18] Speaker 04: I mean, it's a compound question. [00:21:23] Speaker 00: It's fundamentally ambiguous. [00:21:25] Speaker 04: I don't agree with that. [00:21:26] Speaker 04: I think you know exactly what I'm talking about. [00:21:29] Speaker 00: And I think it's for the jury to decide. [00:21:31] Speaker 00: Sorry, Your Honor. [00:21:33] Speaker 00: So talking about the literal truth defense, [00:21:36] Speaker 00: which comes from the Supreme Court's decision in Braunston and is discussed at length by this court in the Strom opinion, there are two requirements. [00:21:43] Speaker 00: One is that everyone agrees the statement is true and the statement is not responsive to the question that was asked. [00:21:50] Speaker 00: That is not the case here, right? [00:21:51] Speaker 04: But you seem to think that the statement can only be true if it agrees with your theory of the case. [00:21:58] Speaker 00: The statement can only be undisputably true if both sides agree as to how to interpret it. [00:22:03] Speaker 04: So there can't be literal truth if it's... What happens to all the witnesses who come and testify at the grand jury, but they testify in a manner that is ultimately decided by a jury to be different? [00:22:20] Speaker 04: Are they subject to perjury? [00:22:21] Speaker 00: I think that the [00:22:25] Speaker 00: The doctrine of arguable ambiguity is what comes into play once we're talking about interpreting the government's questions differently. [00:22:33] Speaker 00: And at that point, it becomes very much a question that is left to the jury because it is a factual dispute that hinges on things like credibility and common sense. [00:22:46] Speaker 00: I'm trying to remember. [00:22:48] Speaker 04: We were talking about context. [00:22:51] Speaker 00: Yes, context. [00:22:51] Speaker 00: So the whole context, I think, you know, you quoted what... How much context do we get? [00:22:57] Speaker 04: Do we get the whole transcript or we just get a few lines before and after? [00:23:00] Speaker 00: You get the whole transcript. [00:23:01] Speaker 00: It was placed into evidence. [00:23:03] Speaker 00: And certainly you can look at the whole transcript. [00:23:05] Speaker 00: And here are two parts of the transcript I would point you to. [00:23:07] Speaker 00: One is that when she says, I don't know why Larry was generous, here's what she says afterwards. [00:23:13] Speaker 00: But like I said, [00:23:14] Speaker 00: He would buy other staff members washers and dryers. [00:23:17] Speaker 00: He would give them cash if they needed it. [00:23:19] Speaker 00: What she's saying is he gave the others money too. [00:23:22] Speaker 00: She's implying that she's not special. [00:23:24] Speaker 00: She's just like the other coworkers. [00:23:26] Speaker 00: And what that means is that she understood the government's question perfectly. [00:23:30] Speaker 00: She knew that the government was asking about what set her apart from the other coworkers and her relationship with Mr. Roodle. [00:23:38] Speaker 04: So would you say, was she being evasive? [00:23:41] Speaker 00: Yes, your honor. [00:23:42] Speaker 04: Is he being evasive sufficient to get you a perjury conviction? [00:23:48] Speaker 00: Not by itself, but a false statement based on how the jury believes that the defendant understood this question is sufficient and that I don't know why [00:24:02] Speaker 00: was a false statement. [00:24:03] Speaker 02: Well if you say that at issue is whether she understood that the question was designed to elicit whether she was special, well and as I understand it we can consider the whole transcript, well she later goes on to explain [00:24:19] Speaker 02: why she's special, and she later goes on to explain that part of that specialness, at least was it manifested in Mr. Rudolph's case, by giving her stuff. [00:24:29] Speaker 02: And so why, if we can look at the whole context, can one determine that that was perjury, particularly since [00:24:38] Speaker 02: At least I think that some members of the panel believe that that statement was vague. [00:24:43] Speaker 02: I mean, the question of why was she so generous to you? [00:24:46] Speaker 02: I mean, she explains later why he was generous to her because they were in a relationship, because she was special. [00:24:53] Speaker 00: Hey, I think ultimately the fact that the prosecutor is successful in pinning down the witness in the situation doesn't change the fact that perjury has already been committed. [00:25:04] Speaker 02: Well, yeah, let's talk about that. [00:25:07] Speaker 02: Pin down. [00:25:08] Speaker 02: Well, it's not like he said, the question, is the light green? [00:25:14] Speaker 02: She said, no, it's red. [00:25:16] Speaker 02: Later she says, oh, well, the light really was green. [00:25:20] Speaker 02: You don't have that sort of clarity here. [00:25:23] Speaker 02: You have a situation where, why did he do it? [00:25:26] Speaker 02: I don't know. [00:25:27] Speaker 02: Later she says, oh, well, I really do know. [00:25:30] Speaker 02: And I'm going to tell you why. [00:25:33] Speaker 02: To explain to me what, how you reconcile those two examples. [00:25:38] Speaker 00: I mean, I think the fact that you can't reconcile them is what makes the statement false. [00:25:43] Speaker 00: And she's saying she doesn't know why Larry was generous. [00:25:46] Speaker 00: And then she's saying, Oh, I do know why. [00:25:48] Speaker 00: And I think, I think the way that we interpret [00:25:52] Speaker 00: or at least the way the jury chose to interpret that, is not someone who's saying, I misunderstood the question. [00:25:58] Speaker 00: That's someone who's been caught in a lie, and they are essentially trying to excuse it, right? [00:26:03] Speaker 01: She'd be caught in a lie if she said, we weren't in a relationship. [00:26:07] Speaker 01: That'd be a lie. [00:26:09] Speaker 00: Yes. [00:26:09] Speaker 01: But all of this mushy stuff just isn't the same as saying we weren't in a relationship. [00:26:16] Speaker 01: She gets asked directly. [00:26:18] Speaker 01: Ms. [00:26:18] Speaker 01: Miliron, were you in a relationship with Larry Rudolph? [00:26:21] Speaker 01: This is the first time it's been approached. [00:26:23] Speaker 01: Answer one word, yes. [00:26:24] Speaker 00: I think the fact that she later tells the truth under this court's case law. [00:26:29] Speaker 01: Later tells the truth because she's asked the question. [00:26:33] Speaker 01: And when you say pin down, if this is pinning down a witness, it's an awfully big radius. [00:26:42] Speaker 00: I think the case law is clear that [00:26:44] Speaker 00: The perjury happens once the false statement has been made, and we don't get to look at whether or not the prosecutor was skilled enough to ultimately get a confession from the witness. [00:26:55] Speaker 04: So aren't the cases you cite different, though? [00:26:58] Speaker 04: For example, the Supreme Court case you cite, the name escapes me. [00:27:02] Speaker 04: The guy came back the next day after somebody else had already testified in the meantime and wanted to recant. [00:27:12] Speaker 04: Even our own case, which was arguably dicta. [00:27:19] Speaker 04: I'm talking about the Fernandez-Baron case. [00:27:23] Speaker 04: It came out on cross-examination, not out on the direct. [00:27:30] Speaker 04: In this grand jury testimony, there was not a lot of space in between these questions. [00:27:42] Speaker 00: I have not seen anything in the case law that to me indicates that when someone cleans up their testimony after sort of being pushed into a corner, that that precludes a perjury conviction. [00:27:54] Speaker 00: I think that certainly the onus is on the government to ask good questions and to be good at getting the answers from the witness. [00:28:01] Speaker 00: But that can be true in addition to the fact that [00:28:05] Speaker 00: Not every question is perfect, right? [00:28:07] Speaker 00: The whole point of the doctrines of fundamental ambiguity and arguable ambiguity is this recognition that ambiguity is inherent in all language. [00:28:15] Speaker 00: And what it tells us is that unless the prosecutor's question is truly so ambiguous that no one can really understand it, we're going to leave these questions to the jury. [00:28:28] Speaker 02: Let's use, I want to go back to Judge Phillips. [00:28:32] Speaker 02: colloquy with you, and essentially this is the line of reasoning. [00:28:37] Speaker 02: If you say, well, why was he so generous to you? [00:28:41] Speaker 02: Now, Miss Milliron could have in her mind, we have a relationship. [00:28:46] Speaker 02: He may be trying to silence me. [00:28:48] Speaker 02: He may be trying to, he wants to maintain his connection to me, which is not necessarily, it's related, but not the same thing as he loves me. [00:28:58] Speaker 02: Okay, it could be all of those things. [00:29:01] Speaker 02: That's what she, so she says, well, it could be three things in my head. [00:29:06] Speaker 02: I'll just say, I don't know. [00:29:07] Speaker 02: Later, the questions are asked in a way where it is very clear to her what the prosecution is getting at. [00:29:15] Speaker 02: And in that situation, she tells you exactly that. [00:29:20] Speaker 02: He's giving me the money because we're in a relationship and essentially, you know, he loves me, he's in a romantic relationship with me, whatever. [00:29:28] Speaker 02: That's the examples. [00:29:30] Speaker 02: Is the first one in that situation perjury? [00:29:33] Speaker 02: I mean, in her head, conceivably, she could have four or five answers, three answers, let's say, to that question. [00:29:41] Speaker 02: So, because she doesn't know really which one to give, she says, I don't know. [00:29:45] Speaker 02: And when it's clearer later which one you really wanted, the prosecutor really wanted, she gives that answer. [00:29:54] Speaker 02: Where's the perjury in that? [00:29:57] Speaker 00: Your Honor, I would say that—sorry, and I see my time has expired. [00:30:00] Speaker 02: Oh, I want to hear it, so please, go ahead. [00:30:03] Speaker 00: My response to that would be that regardless of what we hear on appeal think looking at this cold transcript, this is ultimately a question that gets left to the jury, and the jury [00:30:17] Speaker 00: You know, Ms. [00:30:18] Speaker 00: Millar can spend all day saying that she was confused by this question, but it's the jury who gets to decide whether that's a credible claim. [00:30:25] Speaker 00: And in this case, the idea that she was confused by this question, that she was confused, the reason she said, I don't know why is because she couldn't choose between all of the different true answers in her head. [00:30:35] Speaker 00: The jury rejected that, and a rational fact finder could have made the same conclusion. [00:30:40] Speaker 02: And so just to be clear on what that theory is, the theory would be that a rational fact finder, particularly when she includes this language about they gave washers and dryers or whatever that subsequent language is, the rational fact finder could say Ms. [00:30:56] Speaker 02: Milliron knew that what the prosecutor was getting at is what made you different than the other employees and based upon that [00:31:06] Speaker 02: conclusion, which would have been rational, she lied, because she knew that she was different than the other employees. [00:31:14] Speaker 00: Yes, Your Honor. [00:31:15] Speaker 02: Okay, I just want to make sure I understand. [00:31:16] Speaker 04: Chief, can I ask you one more question here? [00:31:19] Speaker 04: Let's go on to the second potentially perjurious statement or different category. [00:31:25] Speaker 04: I guess there were two statements in the first count, and then we're looking at the next one. [00:31:29] Speaker 04: It says, [00:31:30] Speaker 04: As you sit here today with members of the grand jury, you don't recall a conversation with Mr. Rudolph about an FBI investigation. [00:31:39] Speaker 04: She says there has been conversation about that, but I think he was aggravated. [00:31:45] Speaker 04: I can't give you specifics. [00:31:48] Speaker 04: Can you give me generalities to which she says irritated that there was an FBI investigation because he felt [00:31:59] Speaker 04: He was innocent. [00:32:00] Speaker 04: Next question. [00:32:01] Speaker 04: Did he ever tell you that he was just going to go and speak to the FBI? [00:32:11] Speaker 04: Don't you think it's problematic that you ask for an answer in generalities? [00:32:17] Speaker 04: And she brings up this thing about him feeling that he is innocent. [00:32:23] Speaker 04: And there's never any further questioning on it at all. [00:32:26] Speaker 04: It goes straight to the investigation. [00:32:29] Speaker 04: And you're like, oh, it's a lie. [00:32:39] Speaker 04: He didn't really say anything that made her feel like he was innocent. [00:32:43] Speaker 04: I mean, we have no way of knowing that. [00:32:47] Speaker 04: I mean, there's no way of knowing that. [00:32:50] Speaker 00: So, Your Honor, I guess a few points, if I may. [00:32:52] Speaker 00: So count nine is based on two statements. [00:32:55] Speaker 00: So there's that statement, and then there's the statement asking if in these conversations about the FBI investigation, did he ever tell you he was innocent? [00:33:03] Speaker 00: And she says, probably, I don't really recall. [00:33:06] Speaker 00: And so the government's theory here is that it simply wouldn't have made sense for him to tell her he was innocent, or I feel innocent, because by the time the FBI investigation is happening, we know for a fact that Mr. Rudolph has already told Ms. [00:33:20] Speaker 00: Milliron that he killed his wife. [00:33:22] Speaker 04: No, that was disputed at trial. [00:33:24] Speaker 00: It was certainly disputed at trial. [00:33:27] Speaker 00: But again, we are under a sufficiency of the evidence standard. [00:33:31] Speaker 04: And you do have a witness who said, I could have missed the first few words of that sentence. [00:33:38] Speaker 00: I would say viewing the evidence in the light most favorable to the jury's verdict. [00:33:43] Speaker 00: I agree it was disputed. [00:33:44] Speaker 00: But there's the other evidence, too. [00:33:45] Speaker 00: There's the propofol order. [00:33:47] Speaker 00: There is the text after it happens. [00:33:49] Speaker 00: The government presented ample evidence that Ms. [00:33:51] Speaker 00: Milliron always knew that this was going to be the plan. [00:33:55] Speaker 04: The government has also accepted, though, that he said it was an accident to her. [00:34:04] Speaker 04: Yes, Your Honor. [00:34:05] Speaker 04: And you've criticized her for not exploring further the idea that it was an accident. [00:34:11] Speaker 04: But nobody disputed that he said to her that it was an accident. [00:34:20] Speaker 04: Right okay, there's no other at least plain clear evidence As to what else he said to her about whether it was or was not an accident. [00:34:30] Speaker 04: I mean the statement in the restaurant. [00:34:32] Speaker 04: Yes, okay fair enough If there are no Well just answer me on the generalities do I mean if you ask someone tell me in generalities I mean isn't that a big problem for you? [00:34:47] Speaker 04: Aren't you asking them to summarize something for you? [00:34:52] Speaker 00: I don't think that that's necessarily a problem when the witness responds with a lie. [00:34:58] Speaker 00: I think it's a problem because you might not get the answer you're hoping for, and it's a pretty easy question to evade, but she still didn't evade it. [00:35:07] Speaker 00: He would never have said, I'm innocent, because she knew. [00:35:10] Speaker 01: Why? [00:35:12] Speaker 01: Why could he not have told her, well, assuming she's involved, [00:35:17] Speaker 01: Oh, the FBI is breathing down my neck. [00:35:19] Speaker 01: They're going to come to you next. [00:35:21] Speaker 01: Really helped me out a lot if you told them that I said I was innocent. [00:35:26] Speaker 01: So I'm telling you right now, I'm innocent. [00:35:29] Speaker 00: We can certainly come up with some bizarre scenarios in which he does just tell her he's innocent, right? [00:35:34] Speaker 00: Maybe he's gaslighting her. [00:35:36] Speaker 00: But this is sufficiency of the evidence. [00:35:39] Speaker 00: We don't have to exclude every remote possibility in order to uphold the jury's verdict. [00:35:45] Speaker 00: We just have to conclude that it was rational. [00:35:47] Speaker 01: But you're emphatically saying it's a lie. [00:35:50] Speaker 01: You're not saying it might have been. [00:35:52] Speaker 01: Three quarters of the time this would be a lie. [00:35:54] Speaker 01: You're saying 100% of the time it's a lie. [00:35:56] Speaker 01: That's why we get our conviction. [00:35:58] Speaker 01: And I'm telling you, it's not 100% with my example. [00:36:02] Speaker 00: The protection in that situation comes from leaving the question to the jury and the jury resolved it against Ms. [00:36:07] Speaker 00: Miller and it was rational for them to do it that way. [00:36:10] Speaker 02: Are you saying 100% of the time it's a lie? [00:36:14] Speaker 02: I mean under sufficiency of the evidence standard. [00:36:16] Speaker 00: I'm saying it was up to the jury to decide yes or no, was it a lie? [00:36:21] Speaker 00: So, you know, it could have been 70% it was a lie and a different jury would have come out differently. [00:36:26] Speaker 00: But I think there's enough here to justify the jury's conclusion that this was, in fact, a lie. [00:36:31] Speaker 01: What about pinning down the witness on this point, which is reading the government's brief, it says, did he profess his innocence, I don't have the right word, maintain, proclaim? [00:36:42] Speaker 01: Did he proclaim his innocence? [00:36:44] Speaker 01: And then in the government's brief, it says, to you. [00:36:47] Speaker 01: But it doesn't say to you in the transcript. [00:36:50] Speaker 01: Why couldn't it be more general? [00:36:51] Speaker 01: Yes, he's out there telling all the FBI guys he's innocent. [00:36:55] Speaker 01: insurance companies, he didn't do anything wrong and they gave him $4.8 million. [00:37:00] Speaker 00: Yeah. [00:37:00] Speaker 00: I mean, I think that would have been an interesting argument about ambiguity if it had been raised in the opening brief by Ms. [00:37:06] Speaker 00: Milliron, but there's no argument as to the ambiguity of this claim. [00:37:10] Speaker 00: So I think that the idea that Ms. [00:37:12] Speaker 00: Milliron was confused as to whether the government meant, did he proclaim his innocence ever to anyone versus did he proclaim his innocence to you? [00:37:19] Speaker 00: I mean, we could talk about the context that would have made it clear [00:37:23] Speaker 00: that they were talking about their private conversations. [00:37:25] Speaker 00: There's also the fact that later she says, he never spoke about the murder to anyone else. [00:37:29] Speaker 00: So the entity that she's even testifying about him telling the insurance agents that, you know, she doesn't recall overhearing any conversations where that happened. [00:37:37] Speaker 00: So I don't think that's a credible interpretation. [00:37:39] Speaker 01: Should we be looking at the literal language as the proper role of an reviewing court? [00:37:44] Speaker 01: Or do we just say, well, jury could conceivably come up with that answer. [00:37:49] Speaker 01: So hands off. [00:37:50] Speaker 01: Don't we look at the exact language that's used? [00:37:53] Speaker 00: I think this court's decision in Strom makes very clear that there is ambiguity in language all the time, and that once we get out of the zone of fundamental ambiguity. [00:38:02] Speaker 01: Here's where there's none. [00:38:04] Speaker 01: Were you in a relationship with him? [00:38:07] Speaker 01: Everybody knows what they're talking about, and she says yes. [00:38:10] Speaker 01: So it's not this world where every word that's uttered, who knows what it meant. [00:38:16] Speaker 01: I mean, this could have been asked a lot more clearly. [00:38:19] Speaker 01: Do you concede that point? [00:38:21] Speaker 01: Yes, Your Honor. [00:38:24] Speaker 02: Okay. [00:38:25] Speaker 01: Thank you, Council. [00:38:29] Speaker 02: Let's look at seven minutes if you want it. [00:38:36] Speaker 01: Thank you, Your Honor. [00:38:37] Speaker 01: Could I ask you a question right off the bat? [00:38:38] Speaker 01: Sure. [00:38:39] Speaker 01: The Chief was generous with the time. [00:38:41] Speaker 01: What if we reversed on one of the perjury counts? [00:38:45] Speaker 01: Where does that leave you? [00:38:49] Speaker 01: No better off? [00:38:51] Speaker 03: Well, it depends. [00:38:55] Speaker 03: If it is the perjury charged in count, I'm sorry, if you only reverse on one, [00:39:08] Speaker 03: That would defeat argument number three. [00:39:11] Speaker 03: Insufficient evidence on perjury means insufficient evidence, particularly on count four, but also three, we argue, would defeat that argument. [00:39:19] Speaker 03: The argument that perjury cannot satisfy the requirements of accessory liability under 18 USC section three, that is unaffected. [00:39:34] Speaker 03: Would not affect a double jeopardy analysis. [00:39:37] Speaker 02: She wouldn't have a special assessment. [00:39:47] Speaker 02: Right? [00:39:48] Speaker 02: I mean, it matters, right? [00:39:50] Speaker 03: It does matter. [00:39:51] Speaker 03: It does matter. [00:39:54] Speaker 03: But I think for the reasons that the court discussed with my colleague, I think that neither perjury conviction can survive. [00:40:03] Speaker 03: And I want to be clear on one point that [00:40:07] Speaker 03: I kept hearing the suggestion that if you're in the realm of arguable ambiguity, [00:40:15] Speaker 03: Hands off, that is for the jury to decide. [00:40:18] Speaker 03: Juries are best equipped to decide questions that arise in that context. [00:40:23] Speaker 03: The suggestion almost seemed to be this court can't sort of review a conviction that is premised on arguable ambiguity. [00:40:32] Speaker 03: And of course, that's just incorrect. [00:40:34] Speaker 03: It's a sufficiency claim. [00:40:35] Speaker 03: It's subject to de novo review, just like any other sufficiency claim. [00:40:39] Speaker 02: Yes, it's a sufficiency claim, but I think what [00:40:42] Speaker 02: at least as I interpreted the government's position, it is that once you get out of the realm of fundamental ambiguity, the question becomes, is there a reasonable range of how to interpret the response? [00:40:56] Speaker 02: And is one answer in that reasonable range perjurious? [00:41:01] Speaker 02: And if a rational jury could find, even though all the others were not, that one of them is perjurious, then we have nothing else to talk about. [00:41:09] Speaker 02: Because on a sufficiency of the evidence, [00:41:11] Speaker 02: That's it. [00:41:13] Speaker 03: And so one of the interesting and unusual things about this case is it is not, Strom says, plumbing a question for ad hoc ambiguity will not defeat a perjury conviction, where the evidence demonstrates the defendant understood the question in context and gave a knowingly false answer. [00:41:33] Speaker 03: That is not what's happening here. [00:41:35] Speaker 03: It's quite unusual, because in this case, the testimony itself is the explanation behind the ambiguity, the explanation behind the initial answer, the initial denial, the subsequent admission. [00:41:51] Speaker 03: So this is not some clever lawyer argument being made after the fact, where we could say, well, a jury would have never bought that. [00:41:58] Speaker 02: You said the testimony itself, but you're talking about the later testimony where she clarified the nature of her relationship with Mr. Rudolph, right? [00:42:06] Speaker 02: Correct. [00:42:06] Speaker 02: Well, that does not necessarily defeat a determination of actual perjury in the moment. [00:42:15] Speaker 02: In other words, [00:42:15] Speaker 02: a scenario in which the jury could find in moment A there was perjury. [00:42:21] Speaker 02: And then Ms. [00:42:22] Speaker 02: Millar says, oh, wow, I lied in moment A, so I better start being truthful in moment B. The government can still convict her on moment A, right? [00:42:35] Speaker 03: Well, I would say, as an abstract principle, not always. [00:42:40] Speaker 03: And the reason I say that is because, of course, the initial question, there is the question of ambiguity. [00:42:47] Speaker 03: There is the question of the subsequent clarification. [00:42:51] Speaker 03: I am with Judge Carson. [00:42:53] Speaker 03: that the government does not cite any case law that is controlling, that says once you give a dishonest answer, the cat is out of the bag and you cannot undo that. [00:43:06] Speaker 03: It's just pretty clear that when a witness [00:43:12] Speaker 03: concludes his or her testimony, comes back the next day, hears somebody else testify in a way that is inconsistent with his testimony. [00:43:20] Speaker 03: And he stands up and says, I'd like to retake the stand and recant. [00:43:24] Speaker 02: So it's your theory that, and I'm sorry to interrupt, but it's your theory then that if the prosecutor says, is the light red or green, and you say falsely that it's red, [00:43:37] Speaker 02: And in the same context of that grand jury testimony, before it ends, you go back and say, oh, well, I know I lied there. [00:43:45] Speaker 02: And so as it goes on, you say, well, by the way, it really was green. [00:43:51] Speaker 02: And you're telling me that in that situation, the government could not prosecute that person for that false statement initially? [00:43:57] Speaker 03: No. [00:43:57] Speaker 03: No. [00:43:58] Speaker 03: But what I'm trying to say is that a closer analogy would be, was the light red? [00:44:05] Speaker 03: after the witness is questioned about the long line of traffic he sat in before he got to the intersection. [00:44:12] Speaker 03: Yeah, the light was red. [00:44:13] Speaker 03: Oh, wait, you're asking me if the light was red when my car went through it? [00:44:19] Speaker 03: No, no, it was yellow at that point. [00:44:20] Speaker 03: But I saw the red light 15 times as I was sitting in line. [00:44:24] Speaker 03: There's some ambiguity in the initial question. [00:44:27] Speaker 03: It is clarified later. [00:44:28] Speaker 03: The government gets the answer that it wants. [00:44:32] Speaker 03: My answer to you, Judge Holmes, is yes. [00:44:34] Speaker 03: That is not the stuff of a perjury conviction, both because of ambiguity and because of materiality. [00:44:40] Speaker 03: You do a better job with your questions and you elicit the exact information you want. [00:44:45] Speaker 03: And I have to read, it's in our brief, but I've got to read it to the court because it's so on point with our discussion. [00:44:52] Speaker 03: today, Sains, it's the Ninth Circuit case. [00:44:56] Speaker 03: In this case, the defendant's response was literally truthful but apparently unresponsive to the questioning prosecutor's intended meaning. [00:45:03] Speaker 03: Once the question's ambiguity was narrowed somewhat by further questioning, the defendant gave a literally true and responsive answer consistent with the prosecutor's intended meaning. [00:45:13] Speaker 03: Rather than constituting an example of the corruption of our system of justice through perjury, this sequence of events shows our system working [00:45:22] Speaker 03: properly. [00:45:23] Speaker 02: I liked your hypothetical and I'm trying to think about it and what occurs to me however is in that hypothetical where you had that series of lights and they respond red initially, if a reasonable jury by virtue of the context of that response could say you understood [00:45:47] Speaker 02: that they were talking about the prior lights, not the one you were going through per your yellow to red. [00:45:56] Speaker 02: Even though it's mushy, they could convict, could they not? [00:46:02] Speaker 03: I mean, I think the court would have to review the record as a whole and say, it's just too ambiguous. [00:46:09] Speaker 03: You cannot say definitively that given the ambiguity in the question, we know that he understood what the question meant and the prosecutor was asking about the light at the time the person crossed into the intersection. [00:46:26] Speaker 03: And the reason is [00:46:30] Speaker 03: Explained in Strom, precise question is imperative as a predicate to perjury. [00:46:36] Speaker 03: Courts have required, quote, near absolute clarity from the questioner in order to support a perjury conviction. [00:46:44] Speaker 03: So we can argue about what individual jurors might dream up, but you can't do that untethered from the legal principles and the standards that the government has to meet in order to maintain a perjury prosecution. [00:46:58] Speaker 02: Courts have required absolute clarity, but Strom didn't require absolute clarity, right? [00:47:02] Speaker 02: It articulated an unarguable ambiguity standard. [00:47:06] Speaker 03: I mean, it says near absolute clarity. [00:47:10] Speaker 03: That's a quote from Strom. [00:47:12] Speaker 02: I'm asking you, did Strom adopt an arguable ambiguity standard? [00:47:17] Speaker 03: Well, I'm not disputing that there is a doctrine of fundamental ambiguity and arguable ambiguity. [00:47:24] Speaker 03: I'm not disputing that. [00:47:26] Speaker 03: I'm saying that when you apply even arguable ambiguity, the burden is on the examiner. [00:47:33] Speaker 03: to be precise and elicit the testimony he is after. [00:47:37] Speaker 03: The burden is not on the witness, and the risk of getting it wrong, of not knowing what's in the mind of the examiner, does not lie on my client or any other criminal defendant. [00:47:51] Speaker 02: Well, in my view, at least I thought it admitted to, the government's not going to get a gold star in this case for the clarity [00:47:58] Speaker 02: Of its questions, but that leaves us still with the issue to decide. [00:48:03] Speaker 03: Yeah, we're after a little more than that Understood is I'm sorry was has that already been seven minutes plus yet it plus Time flies all right time flies when you're having fun. [00:48:16] Speaker 02: That's true. [00:48:16] Speaker 02: All right the case is submitted. [00:48:18] Speaker 02: Thank you for your fine arguments