[00:00:00] Speaker 01:
The first case that we have for argument is United States versus Mullins and it is Docket 247003.

[00:00:11] Speaker 01:
Council, Ms.

[00:00:12] Speaker 01:
Donnelly, when you're ready to make your argument, we'll be pleased to hear it.

[00:00:18] Speaker 04:
Thank you, your honors.

[00:00:19] Speaker 04:
Good morning.

[00:00:19] Speaker 04:
My name is Katayoun Donnelly and I represent the appellant Mr. Mullins in this case.

[00:00:26] Speaker 04:
Mr. Mullins has raised three questions of law in this appeal.

[00:00:29] Speaker 04:
First, did the trial court violate the Jury Act?

[00:00:34] Speaker 04:
Second, did the trial court err in its legal conclusion that the physical presence of the prosecutor is necessary to trigger the protections of rule 410A4 of rules of federal evidence?

[00:00:50] Speaker 04:
And the third question is, did the trial court err in its legal conclusion that release of correspondence between former defense counsel

[00:01:00] Speaker 04:
and the government from the defendant's client file is subject to non-disclosure under Federal Rules of Criminal Procedure 16.

[00:01:11] Speaker 04:
As a part of that question, there is the issue of whether, as a matter of law, the government could ever meet the good cause requirement where the client file, at the very least, could be released for the eyes of the current attorney.

[00:01:30] Speaker 04:
As to the first question, the Jury Act, we had very interesting facts in this case.

[00:01:39] Speaker 04:
Before the jury selection started in this case, the attorney and the criminal defendant noticed the absence of any members of the Indian American population, which is about the population of 140,000 in the Eastern District of Oklahoma.

[00:01:59] Speaker 04:
And interestingly enough, by contrast, they noticed that there are seven members of the citizens from the small town that the alleged crime had occurred in Idaho, Oklahoma out of the 49 jury members.

[00:02:17] Speaker 04:
And when they compared the two, the absence of any members of the Indian American community or the black community, by contrast,

[00:02:29] Speaker 02:
Council, did you file an affidavit?

[00:02:32] Speaker 04:
Yes, Your Honor.

[00:02:33] Speaker 04:
So within seven days of that discovery, the defense counsel filed a written motion.

[00:02:39] Speaker 04:
The issue was raised orally that same day, but that is not significant because the statute 1867 and 1861 that are the subject of this

[00:02:55] Speaker 04:
argument.

[00:02:57] Speaker 04:
The requirement for the affidavit is met when it is filed with the court within seven days of the discovery.

[00:03:06] Speaker 02:
Are you saying you did file an affidavit, a sworn affidavit, setting forth the reasons for your allegations?

[00:03:17] Speaker 04:
Correct, Your Honor.

[00:03:18] Speaker 04:
The trial counsel, I was not the trial counsel if you're asking me personally, but the trial counsel did file an affidavit that was attached to the written motion.

[00:03:27] Speaker 02:
It sure was a sworn statement.

[00:03:32] Speaker 04:
The way that you're asking me, Your Honor, I'm going to doubt myself.

[00:03:36] Speaker 04:
So I'm going to have to look back and I will, of course, get back to the court if I have made a mistake.

[00:03:41] Speaker 04:
My understanding has been that there was no dispute.

[00:03:44] Speaker 04:
The argument that the government has raised was the timeliness.

[00:03:49] Speaker 04:
It was not that the other requirements were not met.

[00:03:53] Speaker 04:
If I'm mistaken, I'm sure that Mr. Flanagan is going to correct me.

[00:03:58] Speaker 04:
But assuming that I am correct, that the requirements were met in the written filing that the defense counsel submitted to the court, then the only issue, the main issue here is that under the jury act, my client had a right to a hearing.

[00:04:18] Speaker 04:
The act is very specific.

[00:04:21] Speaker 04:
As long as you have the showing of the grounds, it triggers a requirement for a hearing.

[00:04:27] Speaker 04:
So you can have the testimony from the people involved with the jury commissioner to come and testify.

[00:04:33] Speaker 04:
You can present additional evidence.

[00:04:35] Speaker 04:
And as you see in the record, the trial counsel actually was very specific about the use of a statistician.

[00:04:42] Speaker 04:
And then they said that we want to bring in our expert to show why these numbers are impossible.

[00:04:48] Speaker 04:
But they were flat out, thrown out, and there was never hearing held.

[00:04:54] Speaker 04:
And that is what you're asking for.

[00:04:55] Speaker 04:
That was a reversible error.

[00:04:58] Speaker 04:
The Supreme Court of the United States and TESS has been very specific.

[00:05:02] Speaker 04:
This court in Lawson has followed TESS that when a timely request has been made following the requirements of the act, that the granting of that hearing is automatic.

[00:05:16] Speaker 04:
There is no discretion.

[00:05:18] Speaker 03:
Well, it's your obligation, isn't it, counsel, when you filed the motion to strictly comply, not just with the timeliness issue, which the court did find it untimely, but with the substantive requirements of the act, which I believe requires counsel to file a factual statement, an affidavit that actually swears that there's a factual basis

[00:05:45] Speaker 03:
that shows the substantial failure to comply.

[00:05:48] Speaker 03:
Here, as I understand it, your affidavit simply recited that they had visually observed that they believed there weren't any Native Americans or African Americans on the panel.

[00:06:04] Speaker 03:
But it didn't cite any statistical evidence or any other real substantive information about the

[00:06:14] Speaker 03:
You know, the number of, for instance, African-Americans and Native Americans in comparison to the number in the county or anything else, it was just the visual observations, wasn't it?

[00:06:27] Speaker 04:
Your Honor, the visual observation was during the day that the jury was being selected, but all those numbers were submitted in the written... What numbers were submitted in the initial motion?

[00:06:41] Speaker 03:
Yes, Your Honor.

[00:06:42] Speaker 04:
What was submitted?

[00:06:44] Speaker 04:
They attached the table that we have included in our briefing that had all the numbers.

[00:06:52] Speaker 04:
The numbers that I took that included in my briefing, they all came from the affidavit in the record, and the record citation is there.

[00:06:58] Speaker 04:
What numbers are you referring to?

[00:07:01] Speaker 04:
I'm going to refer the court to page 10 of the opening brief.

[00:07:07] Speaker 04:
Okay.

[00:07:09] Speaker 04:
And that takes you to volume one.

[00:07:13] Speaker 04:
I apologize.

[00:07:15] Speaker 04:
Am I interrupting you?

[00:07:16] Speaker 04:
What did these numbers show is what I'm asking you.

[00:07:19] Speaker 04:
So they showed exactly what I was describing to the court, that you have the whole population in Eastern District of Oklahoma is over 700,000 people.

[00:07:30] Speaker 04:
About 140,000 of them Native American yet you had the allegation was that there was zero Native American out of the 140,000 and in comparison, you had 17,000 people in Idaho, Oklahoma.

[00:07:45] Speaker 04:
And out of that 17,000, there were 7 people present from the venue where the crime had occurred.

[00:07:51] Speaker 04:
That was a part of the affidavit submitted.

[00:07:53] Speaker 04:
And that is the triggering point for the application of the Act, the strict application and the requirement for a hearing.

[00:08:02] Speaker 04:
So the second issue, Your Honors.

[00:08:04] Speaker 04:
I would like to start by the fact that we have a disagreement as to the standard of review.

[00:08:10] Speaker 04:
This court in Browning in 2001 decided not to reach that question as to what the standard of review is.

[00:08:18] Speaker 04:
We are asking the court to address it now.

[00:08:20] Speaker 04:
We have addressed that in our briefing.

[00:08:22] Speaker 04:
We are asking the court to apply the de novo review.

[00:08:26] Speaker 04:
The government is asking for the harness

[00:08:31] Speaker 04:
error analysis.

[00:08:33] Speaker 04:
And, you know, aside from the, sorry, the clear error analysis, as to the merits of the question, again, we have this bizarre interpretation of 410, even though we have the, at least we have the second circuit in Serna, we have the eighth circuit in McCauley, and I cite that as 715F3D119 at 1125

[00:09:00] Speaker 04:
Both of the circuits that have reached this question, there has never been an issue as long as you have the participation and involvement of the prosecution.

[00:09:12] Speaker 04:
The argument here that because the prosecutor was in a separate car following.

[00:09:18] Speaker 04:
My client is one of the most interesting arguments I've seen in case law.

[00:09:25] Speaker 03:
There is no question.

[00:09:27] Speaker 03:
You mentioned Serna.

[00:09:28] Speaker 03:
I mean, Serna, it seems to be the case you're relying on, the Second Circuit case.

[00:09:32] Speaker 03:
But that case wasn't anything like this.

[00:09:34] Speaker 03:
And the fact that there, the prosecutor made specific statements, as I'm recalling, to the defendant that his statements would not be used against him.

[00:09:46] Speaker 03:
And then this DEA agent followed up with questions.

[00:09:55] Speaker 03:
And the prosecutor specifically authorized the agent who was asking questions in CERNA to discern the sincerity of the defendant.

[00:10:07] Speaker 03:
So he gave him authority, essentially.

[00:10:09] Speaker 03:
There's just no facts like that in this case.

[00:10:13] Speaker 04:
Well, Your Honor, the key point is not whether the promise was made.

[00:10:18] Speaker 04:
410 does not require a promise.

[00:10:21] Speaker 04:
What it requires is that you are in active negotiations, that there is a participation of the prosecution.

[00:10:29] Speaker 04:
You are engaged in the plea negotiation.

[00:10:31] Speaker 04:
And as a result of that plea negotiation process, you are providing a statement.

[00:10:38] Speaker 04:
And that's what happened.

[00:10:39] Speaker 04:
So it's absolutely irrelevant that in CERNA there was a specific promise.

[00:10:44] Speaker 04:
That's not the requirement of 410.

[00:10:46] Speaker 03:
And as I mentioned, you know, I'm also citing- Well, the rule itself says that the statements are made during plea discussions with an attorney for the prosecuting authority.

[00:11:01] Speaker 03:
Plea discussions with

[00:11:03] Speaker 03:
That certainly, at least in some cases, has seemed to indicate that if the prosecutor needs to be present, the statements are made with that prosecutor present, or at the very least, there's something like there is in CERNA where there's some connection between the prosecutor's negotiations and the agent who follows up.

[00:11:23] Speaker 03:
And that's what I'm saying seems to be lacking here.

[00:11:27] Speaker 04:
And that would be, Your Honor, that is my question.

[00:11:30] Speaker 04:
So how could it be lacking?

[00:11:33] Speaker 04:
You have literally the prosecutor in the car following the defendant.

[00:11:37] Speaker 04:
How could there be any lacking of a connection when you have two cars following each other, following the defendant who's making the statement as to where to go?

[00:11:47] Speaker 01:
And that's also- Could a defendant take the authorities to a body without plea negotiations?

[00:11:54] Speaker 04:
I apologize, Your Honor.

[00:11:55] Speaker 04:
I couldn't hear you.

[00:11:56] Speaker 01:
Well, could a defendant in any given case simply have remorse and say, I'm going to take it to the body without their having the plea negotiations?

[00:12:06] Speaker 04:
If they're out of their mind in a criminal prosecution, perhaps, Your Honor, but which defendant represented by counsel, which counsel would tell the defendant, please go ahead and do this, not get anything in exchange?

[00:12:20] Speaker 01:
A counsel who's trying to avoid the death penalty.

[00:12:23] Speaker 04:
Exactly.

[00:12:24] Speaker 04:
So that is exactly what you just answered the question, which is this was in exchange to dropping the death penalty.

[00:12:31] Speaker 04:
This was a part of a pre-negotiation to drop the death penalty.

[00:12:35] Speaker 04:
Otherwise, which counsel in their right mind could

[00:12:39] Speaker 04:
could tell the criminal defendant, you go ahead and deliver what the prosecution is asking you and not get anything in exchange.

[00:12:47] Speaker 04:
That would have been an effective assistance of counsel per se.

[00:12:50] Speaker 04:
And as to the harmfulness, again, we have cited the case law from the Supreme Court is very clear that this could never be a harmless error because of the fact that in Harrison the Supreme Court

[00:13:03] Speaker 04:
explains.

[00:13:04] Speaker 04:
I mean, this forced the defendant, Mr. Mullins, to testify in the second trial.

[00:13:09] Speaker 04:
If the trial court had not suppressed this information, would have granted a motion to suppress this information, Mr. Mullins would not have been forced to testify.

[00:13:20] Speaker 04:
He was forced, and therefore, this court should reverse the decision not to suppress.

[00:13:26] Speaker 02:
Well, you argue, I think, in your brief that

[00:13:30] Speaker 02:
that the discovery issue is de novo.

[00:13:34] Speaker 02:
Do you have any authority to support that statement?

[00:13:39] Speaker 04:
Yes, Your Honor.

[00:13:40] Speaker 04:
So this is not necessarily the discovery issue.

[00:13:42] Speaker 04:
If I'm understanding the question correctly, the de novo versus clear error was addressed in Browning.

[00:13:50] Speaker 04:
And the court in Browning actually acknowledged that there are different circuits, different courts that have addressed this and have gone in different ways.

[00:13:59] Speaker 04:
So the authority is there.

[00:14:00] Speaker 04:
At least based on Browning itself, the decision of the Eighth Circuit says that as a mixed question of law and fact,

[00:14:08] Speaker 04:
We ordinarily reviewed de novo, a district court's determination that a statement was given in the course of a plea negotiation.

[00:14:15] Speaker 04:
And that's what we're asking the court to do.

[00:14:17] Speaker 04:
If I may, I would like to reserve the remainder of my time.

[00:14:21] Speaker 01:
Very well.

[00:14:22] Speaker 04:
Thank you.

[00:14:24] Speaker 01:
Mr. Flanagan.

[00:14:26] Speaker 00:
May it please the court, Patrick Flanagan, on behalf of the United States.

[00:14:30] Speaker 00:
The United States is asking that the judgment and sentence against Mr. Mullins be affirmed.

[00:14:35] Speaker 00:
The court's orders regarding the Jury Selection and Service Act

[00:14:38] Speaker 00:
the rule 410A4 analysis and the court's order on the communications with Mr. Gifford and not Mr. Adams were all correct within the court's authority and the judgment and conviction against Mr. Mullins in this case should not be overturned.

[00:14:56] Speaker 00:
Going first to the defense's argument regarding what I'm going to call the jury act rather than the jury selection and service actor in this argument,

[00:15:05] Speaker 00:
The defendant didn't comply with the requirements of 28 USC 1867.

[00:15:14] Speaker 00:
What that requires is prior to the veneer or within seven days of when they could have discovered, whichever is earlier, a motion has to be accompanied by a sworn statement.

[00:15:26] Speaker 00:
In this case, it was not.

[00:15:28] Speaker 00:
Prior to the veneer, there was no motion and sworn statement received by the defendant pursuant to the jury act.

[00:15:35] Speaker 00:
It was only after Venire, six days, three days after the verdict was returned, that a reported sworn statement was entered with a renewed motion.

[00:15:44] Speaker 00:
Regarding defense counsel.

[00:15:47] Speaker 03:
There was an initial motion that was not supported with an affidavit, is that right?

[00:15:54] Speaker 00:
Yes, there was an initial oral objection on the day of jury selection.

[00:15:58] Speaker 03:
Yes, an oral motion.

[00:16:00] Speaker 03:
Yeah, I guess I was getting confused about that.

[00:16:02] Speaker 03:
There was no support for that one.

[00:16:05] Speaker 00:
Correct, Your Honor.

[00:16:06] Speaker 03:
And would it have been timely?

[00:16:08] Speaker 03:
It's not being challenged on appeal, right?

[00:16:13] Speaker 00:
My read of defense's argument was that the objection restarted the clock for them, and that's just not the case under the law.

[00:16:23] Speaker 00:
It's not one motion.

[00:16:24] Speaker 00:
It has to be made and accompanied before the denier.

[00:16:28] Speaker 03:
OK.

[00:16:30] Speaker 00:
And the reason for that is a good one, because the Jury Act doesn't attack individual juries.

[00:16:37] Speaker 00:
It attacks the fundamental process in a district by which juries are picked.

[00:16:42] Speaker 00:
Test was very specific in that, in that case, before the Venire, after grand jury, but before jury selection, Test actually filed a motion supported by a sworn statement in which he claimed

[00:16:56] Speaker 00:
that the process by which the grand jury was picked and the process by which the petit jury would be picked excluded disproportionate number numbers of people with Spanish surnames students and African Americans and attached to that was an affidavit.

[00:17:12] Speaker 00:
stating facts that had been disclosed in testimony in another case.

[00:17:16] Speaker 00:
It was after that filing and compliance with the procedure that the U.S.

[00:17:20] Speaker 00:
Supreme Court said, okay, you're entitled to this, you're entitled to this evidentiary hearing.

[00:17:25] Speaker 00:
That posture simply isn't present here.

[00:17:27] Speaker 00:
The requirements of the Jury Act set the time as no later than Benair, and the defendant in this case was later than Benair when they raised that.

[00:17:37] Speaker 00:
Notwithstanding the untimeliness, Judge Goodwin

[00:17:41] Speaker 00:
reviewed the motion, made findings, determined that the failure wasn't substantial and the defendant hadn't established relief.

[00:17:52] Speaker 00:
He could have denied the motion and the oral objection prior to denier

[00:17:58] Speaker 00:
by its non-compliance, by not containing a sworn statement, but he didn't get to it on that grounds.

[00:18:04] Speaker 00:
He judged on the defendant's oral statements of, there are too many people from ADA and we don't recognize any Native Americans.

[00:18:13] Speaker 00:
And even when they did make the written motion and sworn statement, it wasn't that they weren't Native Americans, it's that his argument was, well, we didn't recognize them.

[00:18:22] Speaker 00:
That simply isn't sufficient.

[00:18:25] Speaker 00:
and the court's order on the jury act should be affirmed.

[00:18:33] Speaker 00:
A failure is substantial when it frustrates one of the three principles underlying the act.

[00:18:39] Speaker 00:
First, the random selection of jurors, two, the culling of the jury from a fair cross-section of the community, and three, determination of disqualification, exemptions, and exclusions based on objective criteria.

[00:18:53] Speaker 00:
The district court did that with its order, even after finding it was untimely.

[00:18:58] Speaker 00:
So there were multiple grounds on which the defendants motion was denied and those were correct.

[00:19:09] Speaker 00:
analysis of what should, of defense arguments regarding federal rule of evidence 410A4.

[00:19:15] Speaker 00:
Defense counsels laboring under a misapprehension of the facts.

[00:19:21] Speaker 00:
It was not, there was no evidence introduced and no finding.

[00:19:25] Speaker 00:
It was only a two car convoy.

[00:19:28] Speaker 00:
In fact, the testimony that was presented that wasn't disputed was it was between 10 and 15 cars.

[00:19:35] Speaker 00:
So the idea that he's in a training car, there's a factual disparity with the testimony.

[00:19:42] Speaker 00:
Notwithstanding, the district court evaluated whether didn't actually make a determination because there was a dispute of facts of whether plea negotiations has had begun.

[00:19:53] Speaker 00:
A.D.A.

[00:19:54] Speaker 00:
Ross or former A.D.

[00:19:56] Speaker 00:
former D.A.

[00:19:56] Speaker 00:
Ross testified there was not plea negotiation.

[00:19:59] Speaker 00:
Former defense attorney Frank Stout testified there was rather than

[00:20:05] Speaker 00:
resolve who the court found more credible, the court said, even assuming the defendant's version of events is true, these should not have been excluded.

[00:20:16] Speaker 00:
410 is not a constitutional right.

[00:20:19] Speaker 00:
It is a right that has been delineated by Congress to encourage plea negotiation.

[00:20:26] Speaker 00:
It is very clear on its dictates.

[00:20:29] Speaker 00:
Different districts have extended that beyond when there are clear

[00:20:32] Speaker 00:
designations of authority by an attorney, but there was no evidence of that here to the law enforcement agents, the defendant led to the body of the victim in this case.

[00:20:43] Speaker 00:
So the case law, as the district court evaluated, doesn't apply here, and the defendant's stated belief in his testimony wasn't reasonable.

[00:20:56] Speaker 00:
the district court did not err by allowing in the statement that the defendant led police to the body of Rachel Woodall.

[00:21:07] Speaker 00:
Additionally, defense counsel has tried to extend the 410A for prohibition to what they're arguing are fruits of the poisonous tree.

[00:21:19] Speaker 00:
And that just hasn't happened in a civilian court.

[00:21:21] Speaker 00:
That extends the statutory prohibition on comments far beyond what Congress apprehended.

[00:21:32] Speaker 00:
And the civilian courts that have evaluated it have pretty consistently said that, that it would be for Congress to extend it that far, not the court.

[00:21:41] Speaker 00:
This isn't a constitutional argument under 410.

[00:21:44] Speaker 00:
It is a statutory construction.

[00:21:47] Speaker 00:
The one military court which did construe that actually construed it in part at least because a civilian attorney disclosed attorney client privilege material and that it was the identity of a witness.

[00:22:00] Speaker 00:
So I would submit that that's a case of bad facts getting bad law.

[00:22:06] Speaker 00:
But in addition, it's a military court with a different version of 410 than what's present here.

[00:22:13] Speaker 00:
So the evidence derived even excluding

[00:22:17] Speaker 00:
Assuming for purposes of argument, the defendant was correct that the statements on April, on or about April 21st of 2002 should have been excluded.

[00:22:28] Speaker 00:
All the evidence that was derived should have been included under Rule 410A4.

[00:22:35] Speaker 00:
And that evidence was substantial, significant, the body, the DNA evidence that was recovered, the shell casings, the opinions of the medical examiner.

[00:22:48] Speaker 00:
Even beyond that, the statements the defendant made to Special Agent Craig Overby after his conviction from the state could not fall under Rule 410A4.

[00:23:03] Speaker 00:
At that point, the defendant had already been sentenced, was already facing a sentence, and there is in no way and no evidence that Special Agent Craig Overby was authorized to negotiate a plea deal on a closed case.

[00:23:16] Speaker 00:
So that statement would have come in regardless and wasn't covered by this prohibition.

[00:23:22] Speaker 00:
And in that statement, the defendant stated that he made the correct moral decision, but a poor legal one to lead police to the body of the victim in this case.

[00:23:33] Speaker 00:
With that, that leads kind of into the harmless error analysis of the 410 evidence in that the government submits there was sufficient evidence

[00:23:44] Speaker 00:
regardless of whether the April 21st statement of who led police to the body of Rachel Woodall came in, because you had special agent Craig Overby who was able to testify about it and was properly admitted.

[00:23:58] Speaker 00:
You had all the physical evidence and the derivatives from finding the body.

[00:24:03] Speaker 00:
And notwithstanding, you had all the evidence that preceded finding the body.

[00:24:07] Speaker 00:
the evidence in the defendant's trunk, the evidence in the defendant's home, the defendant's possession of the victim's diary in his home, his false exculpatory statements, his minimal injuries, his attempts to conceal his involvement by calling the then boyfriend and mother

[00:24:29] Speaker 00:
of the victim and also the testimony of Miss Chadwick James who was able to establish by her testimony, the defendant repeatedly asking whether the victim's roommate was going to be present.

[00:24:43] Speaker 00:
The testimony of the eyewitness that contrary to the defendant's claim placed him at the victim's home at 3.30 in the morning on April 20th of 2002.

[00:24:52] Speaker 00:
So all of this evidence was in and

[00:24:57] Speaker 00:
the jury would have heard it.

[00:24:58] Speaker 00:
So notwithstanding whether there was some error in letting in the April 21st statement that he let defendant led police to the body of Rachel Woodall, there was sufficient evidence to find him guilty.

[00:25:13] Speaker 00:
And that doesn't even discount the testimony the defendant gave.

[00:25:19] Speaker 00:
Getting to the defendant's argument on Harrison, Harrison is different.

[00:25:24] Speaker 00:
Harrison involved

[00:25:26] Speaker 00:
Confessions that were obtained unlawfully is a violation of a constitutional right, not like here where there's a statutory construction.

[00:25:37] Speaker 00:
So in that instance, there were three confessions in the prior trial that were admitted.

[00:25:43] Speaker 00:
There was also, I believe, a statement made in opening that the defendant was not going to testify.

[00:25:50] Speaker 00:
But after those confessions were admitted, he did in fact testify in that first trial.

[00:25:55] Speaker 00:
And when the first trial was overturned and they went into the second trial and his testimony was admitted in the second trial, that was found to be error.

[00:26:06] Speaker 00:
But again, that involves a different question.

[00:26:08] Speaker 00:
That's a constitutional question and notwithstanding,

[00:26:12] Speaker 00:
the strength of the evidence in this case, notwithstanding the April 21st statement would have been sufficient for the law of the defendant to testify as he did.

[00:26:24] Speaker 00:
And he asserted self-defense.

[00:26:28] Speaker 00:
Although defense counsel didn't address it in her oral argument regarding the question regarding emails to by Mr. Gifford and that did not also see Mr. Adams,

[00:26:42] Speaker 00:
Those emails were submitted to the court to review in camera whether the defendant's concerns about what they contained were valid.

[00:26:51] Speaker 00:
The court reviewed it and made its determination based on its discretion under Rule 16 that they did not have to be produced to the defendant, that the defendant's, in fact, concerns weren't valid.

[00:27:06] Speaker 00:
So it was reviewed in camera and the district court, as it's authorized to under rule 16, limited the discovery.

[00:27:15] Speaker 00:
That was within its discretion.

[00:27:17] Speaker 00:
It did not harm the defendant and it should not be grounds for overturning the verdict and sentence against the defendant.

[00:27:26] Speaker 03:
The district court said that those communications between the former counsel and the prosecutor didn't belong to this defendant.

[00:27:36] Speaker 03:
Do you agree with that?

[00:27:41] Speaker 00:
Your Honor, if it did belong to the defendant, arguably under Rule 16, then they were produced on their creation.

[00:27:49] Speaker 00:
And that requiring us to produce it again is a step too far.

[00:27:54] Speaker 00:
So notwithstanding, there's- Why is that a step too far?

[00:27:58] Speaker 03:
I mean, if there are communications that were between her former counsel and the government

[00:28:05] Speaker 03:
Why is it a step too far to produce them again if she doesn't have access to them?

[00:28:10] Speaker 00:
Well, Your Honor, we'd submit the defendant did have access.

[00:28:13] Speaker 00:
If they belong to him, his attorney, who was his attorney, has the ability to give it to his new attorney.

[00:28:20] Speaker 00:
If there's a dispute between those two, that doesn't involve the government.

[00:28:26] Speaker 00:
and not withstanding the district court.

[00:28:30] Speaker 03:
Yeah, I'm just I'm just questioning whether that was really necessarily true that communications, regardless of whose file they're in, communications between a prosecutor and an attorney defense counsel or don't don't belong to.

[00:28:44] Speaker 03:
The defendant, almost as though the defendant is not he's not entitled to them, you know.

[00:28:52] Speaker 00:
Well, Your Honor, the district court only spoke to his entitlement under the rules of discovery.

[00:28:57] Speaker 00:
The order leaves unaddressed whether he's entitled to him under other means or other requests.

[00:29:03] Speaker 00:
It was simply the defendant's motion to compel their production under Rule 16 of that order addressed, and the district court was within his discretion to do that.

[00:29:12] Speaker 00:
I am down to about 13 seconds at this point.

[00:29:16] Speaker 00:
If there are no other questions, I'd yield my time and thank you.

[00:29:21] Speaker 01:
Thank you, Councillor.

[00:29:22] Speaker 01:
There is some rebuttal time left.

[00:29:28] Speaker 04:
Yes, Your Honours.

[00:29:29] Speaker 04:
I would like to start with answering Judge Kelly and Judge Murray's question.

[00:29:33] Speaker 04:
The affidavit is volume 1, 612, and then the 605 to 22 and 38 to 42 have that material.

[00:29:43] Speaker 04:
The important part about the government's stature interpretation of 1867A is its complete disregard of the middle sentence.

[00:29:55] Speaker 04:
This subsection says, in criminal cases, before the wordier examination begins or within seven days after the defendant discovered or could have discovered by the exercise of diligence the grounds thereafter, they can raise this issue.

[00:30:12] Speaker 03:
Whichever is earlier.

[00:30:15] Speaker 04:
No, Your Honor, that is the issue.

[00:30:18] Speaker 04:
It says, or within seven days after the defendant discovered or could have discovered by the exercise of diligence.

[00:30:24] Speaker 04:
And that is important because it assumes that if you knew before war year you have to raise it, it ties the point of discovery to the point of raising.

[00:30:34] Speaker 04:
But if you discovered during the war year, which is this case here, then you have seven days to raise it in writing.

[00:30:40] Speaker 04:
And that's exactly what happened here.

[00:30:42] Speaker 04:
they discovered during the voir dire, right before the voir dire, the first day of the trial, and they raised it within seven days.

[00:30:50] Speaker 04:
So that was complete compliance.

[00:30:52] Speaker 04:
And the government's statutory interpretation would completely render this middle clause meaningless.

[00:30:59] Speaker 03:
And as to the caravan, whether the caravan- It does say whichever, it has to raise the Jiriak challenge before the voir dire examination begins or within seven days after discovered, or could have been discovered,

[00:31:12] Speaker 03:
whichever is earlier.

[00:31:17] Speaker 04:
whichever is earlier.

[00:31:19] Speaker 04:
So it doesn't matter because the earliest part was during the war year, right?

[00:31:23] Speaker 04:
So there was no other point of discovery.

[00:31:26] Speaker 04:
The government is not claiming that this was, that the, and the oral motion was the only thing that could have been done on that day.

[00:31:35] Speaker 04:
So to say that if you discover it during the war year, you shall file a written affidavit that has all this information

[00:31:44] Speaker 04:
while you're in the middle of the trial is impractical.

[00:31:48] Speaker 04:
So the only way that you can read whichever is earlier is the point of timing as to describe it or could have discovered.

[00:31:55] Speaker 03:
Seems to read pretty clearly.

[00:31:56] Speaker 03:
Reads pretty clearly to me, but you're basically just, you're twisting that completely around and saying it doesn't mean what it says.

[00:32:05] Speaker 04:
No, I'm just looking at the practicality of how can it.

[00:32:08] Speaker 03:
I'm not talking about the practicality.

[00:32:10] Speaker 03:
I'm talking about what the statute clearly says in terms of timeliness.

[00:32:14] Speaker 04:
I appreciate your honor's interpretation.

[00:32:16] Speaker 04:
That is the submission that we are making to the court.

[00:32:19] Speaker 04:
And if I may, as to the caravan, the number of cars in the caravan, I understand that my time is up if I may finish that.

[00:32:25] Speaker 04:
is that it doesn't matter if the caravan of the cars that was following the defendant had 15 cars or 25 cars.

[00:32:32] Speaker 04:
The point is that the prosecution, the prosecutor was the last car in that caravan.

[00:32:38] Speaker 04:
So they were all following the defendant heading to the body and it is undisputed that the court found

[00:32:46] Speaker 04:
that it believed the defense counsel's count of whether they were in clean negotiation.

[00:32:51] Speaker 04:
That is an undisputed piece of this analysis, and the government has not filed a cross appeal of that finding of the court.

[00:32:59] Speaker 01:
So that's- Okay.

[00:33:01] Speaker 01:
Counsel, your time has expired.

[00:33:02] Speaker 01:
Thank you, Your Honor.

[00:33:03] Speaker 01:
I wanted to let you wrap up, but it looked like we were going to keep going there.

[00:33:07] Speaker 04:
Yes, Your Honor.

[00:33:08] Speaker 04:
We stand on our arguments on the briefing on the third argument.

[00:33:13] Speaker 04:
Thank you, Your Honors.

[00:33:14] Speaker 01:
Okay, thank you, counsel.

[00:33:15] Speaker 01:
The case is submitted and counsel are excused.