[00:00:00] Speaker 04:
24-8068, United States versus Sitting Eagle.

[00:00:07] Speaker 04:
Counsel for Pellin, if you'll make your appearance and proceed.

[00:00:10] Speaker 00:
May it please the court, my name is Kathleen Lord and I represent Canada's Sitting Eagle.

[00:00:18] Speaker 00:
I asked for oral argument in this case because the cumulative effect of all the errors in the case truly deprived Miss

[00:00:27] Speaker 00:
sitting eagle of a fair opportunity to testify and to present her defense.

[00:00:32] Speaker 00:
I'd first like to address the issue, which is rather straightforward, the first issue raised, which is the failure to give a lesser offense instruction.

[00:00:41] Speaker 00:
The applicable law is clear, and there's really no dispute as to the applicable law.

[00:00:47] Speaker 00:
What's in dispute in this case is how to apply the applicable law.

[00:00:52] Speaker 00:
Basically, if the evidence supports giving a lesser included offense instruction, the court must give it.

[00:00:58] Speaker 00:
Sometimes this test is articulated as a four-part test, and when it is, there are only two parts that are disputed in this case by the government, whether there was a dispute as to the elements that differentiate the greater offense from the lesser offense, and whether the jury could rationally acquit Ms.

[00:01:20] Speaker 00:
Sitting Eagle of the greater offense.

[00:01:23] Speaker 01:
Oh, here, Ms.

[00:01:25] Speaker 01:
Sitting Eagle,

[00:01:26] Speaker 01:
has made a blanket denial.

[00:01:29] Speaker 01:
It's not that I didn't hit you hard enough to cause serious bodily harm.

[00:01:35] Speaker 01:
And it's not that I didn't use a weapon to hit you.

[00:01:38] Speaker 01:
It's that I did not hit at all.

[00:01:43] Speaker 01:
Doesn't that preclude a jury from finding

[00:01:47] Speaker 01:
the simple assault argument, there's no evidence from which they could find the lesser included offense.

[00:01:58] Speaker 00:
Well, when you look at all the evidence that was introduced at trial, there certainly is evidence that would support simple assault.

[00:02:05] Speaker 00:
The court should keep in mind that the assault charged both in count two and count four

[00:02:11] Speaker 00:
spanned a six-week period.

[00:02:14] Speaker 00:
MV testified to multiple assaults, some of which qualify as simple assault, some of which would qualify as assault with a dangerous weapon, and so on.

[00:02:25] Speaker 00:
The jury did not have to believe any or all of what MV testified to, nor did they have to believe everything that Miss Sitting Eagle testified to.

[00:02:37] Speaker 00:
I think sometimes when

[00:02:41] Speaker 00:
Sometimes when a defendant denies the act or the mens rea, there may be no dispute, but this isn't that case.

[00:02:52] Speaker 00:
You have to look at all the evidence, not just what the defendant testified to.

[00:02:56] Speaker 00:
And I think when you look at cases like Pacheco, for example, which I think is one of the major cases in this area, they recognize that just because a defendant denies, in that case, it was a possession of

[00:03:11] Speaker 00:
The question was whether the jury should be instructed on possession as a lesser to distribution.

[00:03:18] Speaker 00:
And the defendant denied even knowing about the drugs.

[00:03:23] Speaker 00:
So there was no evidence from him, there was no evidence that he knew about the drugs.

[00:03:27] Speaker 00:
The only evidence about the drugs was the quantity was so large, it wouldn't support possession.

[00:03:33] Speaker 00:
So the Pacheco court expressly recognized that just because the defendant denies

[00:03:41] Speaker 00:
the act, that in and of itself does not preclude giving the lesser offense instruction.

[00:03:47] Speaker 02:
Counsel, so is it your position that the jury rationally could have heard the testimony of MV and said, well, we believe him when he said that Miss Seeding Eagle hit him with sticks, but we don't believe him when he said that she walked up and kneed him in their groin, even though the medical evidence suggested injuries from both of those events.

[00:04:09] Speaker 02:
Is that your position?

[00:04:11] Speaker 00:
Yeah, absolutely.

[00:04:13] Speaker 00:
Because the question was, you know, there's nothing about that Miss Truman Sitting Eagle abused on the child.

[00:04:21] Speaker 00:
And, you know, in a case like this, I mean, it's really difficult to get a fair trial in the best of circumstances because of the nature of the charge.

[00:04:30] Speaker 00:
Part of Miss Sitting Eagle's defense was that the child envy was not being truthful, that he had a motive to want to get out of the home.

[00:04:40] Speaker 00:
And, you know, the jury's instructed that they don't have to believe everything a witness says.

[00:04:46] Speaker 00:
So under the law, absolutely.

[00:04:48] Speaker 00:
And the government didn't charge and the jury wasn't instructed that they had to find that Miss Sitting Eagle kicked her son in the groin.

[00:05:01] Speaker 00:
That wasn't the charge.

[00:05:02] Speaker 00:
They just had to find assault causing serious bodily injury.

[00:05:07] Speaker 00:
And not only did Ms.

[00:05:09] Speaker 00:
Sitting Eagle deny the assault, she denied an assault causing serious bodily injury.

[00:05:15] Speaker 00:
She denied an assault using a dangerous weapon.

[00:05:18] Speaker 00:
But that's, you don't just look at her testimony and that when you read the case law, like the cases cited by the prosecution, I think there's an unpublished case and there's

[00:05:31] Speaker 00:
Bruce, I think, as well.

[00:05:34] Speaker 00:
Those cases are cases where there is no evidentiary support in the entire record for the lesser offense.

[00:05:41] Speaker 00:
And that's not our case.

[00:05:42] Speaker 00:
That's what distinguishes this case.

[00:05:44] Speaker 02:
But what supported the defendant's testimony that, as Judge McHugh said, she gave a blanket denial.

[00:05:51] Speaker 02:
The only cooperating evidence that I'm aware of from the record

[00:05:55] Speaker 02:
was, I think, her mother, who said she came around this time, and then also her longtime friend who stayed there.

[00:06:01] Speaker 02:
But both of those witnesses corroborated her blanket denial, not this parsing out that NV's telling truths about certain assaults, but not others, right?

[00:06:11] Speaker 00:
Well, just to trial, you put all the elements in dispute, first of all.

[00:06:24] Speaker 00:
I don't know if I'm articulating this as well as I need to.

[00:06:28] Speaker 00:
The defense doesn't have to specifically dispute a particular element when you look at the entire evidentiary background of the case.

[00:06:41] Speaker 00:
And the evidence would support either an acquittal or a conviction of the grader.

[00:06:49] Speaker 00:
And I know there's some language that suggests, and I think it's used by the government, but that's not the real essence of whether you get a lesser included offense is whether there's evidentiary support for it.

[00:07:04] Speaker 04:
I'm sorry, go ahead Judge McHugh.

[00:07:08] Speaker 01:
Well, here she didn't contest, for example, that he wasn't assaulted with dangerous weapons.

[00:07:16] Speaker 01:
Her defense was, I wasn't the one who assaulted him with dangerous weapons.

[00:07:21] Speaker 01:
And she didn't contest that he suffered serious bodily injury.

[00:07:26] Speaker 01:
She said, I never caused serious bodily injury, right?

[00:07:32] Speaker 01:
So her defense was a complete blanket denial

[00:07:39] Speaker 01:
of any assault at all?

[00:07:42] Speaker 00:
Well, I agree that that was her testimony.

[00:07:48] Speaker 00:
But her testimony doesn't have to be accepted 100% by the jury, nor does the victims.

[00:07:55] Speaker 00:
And there is evidence of simple assault in this case.

[00:07:59] Speaker 00:
There's evidence.

[00:08:00] Speaker 04:
And when you speak, yeah, when you speak of two things, I'd like to ask Miss Lord, I mean, I think I understand the position, particularly as it was laid out in your reply brief on this notion of sort of whether the jury could have cobbled together pieces of our testimony from both sides.

[00:08:16] Speaker 04:
I mean, but what I would ask, though, is ultimately the test still is going to be whether a rational jury could have convicted of the lesser offense.

[00:08:28] Speaker 04:
And if you have the blanket denial that doesn't stand alone, per Judge Federico's point, it's not like it's out there alone.

[00:08:36] Speaker 04:
I mean, there was actually support for the blanket denial, and then you combine that with

[00:08:42] Speaker 04:
The next question I'm going to ask you is how much evidence do you have that speaks to just simple assault?

[00:08:49] Speaker 04:
When you combine those two, it seems to me that you have a hard time saying that a rational jury, even if they did this assembling exercise that you talk about, would have been able to convict of simple assault.

[00:09:03] Speaker 00:
Well, there's evidence of unspecified hitting and bruising.

[00:09:11] Speaker 00:
There's evidence of, and this is from MV obviously, evidence of striking him with a belt.

[00:09:17] Speaker 00:
At the outset, when he was asked whether he was hit or struck by either Truman or Candace, he said, I don't recall.

[00:09:27] Speaker 00:
Obviously there was subsequent testimony that he accused Candace of assaulting him.

[00:09:35] Speaker 00:
with an object and causing serious bodily injury.

[00:09:40] Speaker 00:
But the jury could reject, they could reject the notion that this mother kicked her child in the groin so hard that she caused serious bodily injury while still accepting

[00:09:53] Speaker 00:
other parts of, um, and these testimony that.

[00:09:57] Speaker 04:
Well, that's why I'm asking you.

[00:09:59] Speaker 04:
And when you speak about unspecified allegations of hitting and bruising, that's not, you know, that's not evidence.

[00:10:05] Speaker 04:
I mean, that's, that's not, that's the code, which goes to the question of what a rational jury and undertaking this, uh, uh, this, this cobbling, uh, cobbling together of evidence that you allude to be able to find enough to convict her.

[00:10:21] Speaker 04:
And if all they, if they, if standing alone,

[00:10:24] Speaker 04:
You had unspecified, well, she hit me and I was bruised.

[00:10:28] Speaker 04:
I mean, I think a defense lawyer would have a heart.

[00:10:32] Speaker 04:
I mean, the government would have a hard time convicting her of simple assault, right?

[00:10:39] Speaker 00:
Not with envy's testimony.

[00:10:42] Speaker 00:
And I, you know, I don't I don't see it as cobbling together.

[00:10:46] Speaker 00:
I see it as the jury looking at all the evidence and seeing that there's definitely evidence of simple assault.

[00:10:53] Speaker 00:
from envy.

[00:10:54] Speaker 00:
You know, he talks about being hit with hands.

[00:10:58] Speaker 00:
He talks about being hit with a belt.

[00:11:02] Speaker 00:
He talks about that being done by them, you know, by Truman and by Candace.

[00:11:08] Speaker 00:
He also is very specific about the horrible accusation about being kneed in the groin and the subsequent injury.

[00:11:15] Speaker 00:
But the jury

[00:11:16] Speaker 00:
doesn't have to accept that, and they never found that.

[00:11:20] Speaker 04:
We don't know what the jury... Well, what is it but not cobbling together when you're asking the jury to take a portion of his testimony, say, I reject this part, I take this part.

[00:11:30] Speaker 04:
I reject the fact that she did not assault, her blanket denial, I reject that, but I support the idea that she may have assaulted him enough to satisfy the assault conviction.

[00:11:44] Speaker 04:
So in fact,

[00:11:45] Speaker 04:
the jury is being asked to undertake this amalgamation process, right?

[00:11:51] Speaker 04:
I'm not saying that it's a pejorative.

[00:11:52] Speaker 04:
I'm saying that it seems to me that's the underlying part of your argument, right?

[00:11:57] Speaker 00:
Right, and that's absolutely the jury's right to do.

[00:12:00] Speaker 00:
I mean, that's what we have the jury for.

[00:12:03] Speaker 00:
You know, I think all of us could review the record and have different reactions to what we think happened, but we're not 12 jurors.

[00:12:10] Speaker 00:
We're not there looking at the witnesses and deciding,

[00:12:13] Speaker 00:
which parts of their testimony to believe.

[00:12:16] Speaker 00:
I think one way of looking at this, which assists in the analysis, is what if Miss Sitting Eagle had not testified at all?

[00:12:25] Speaker 00:
What if you take away her testimony?

[00:12:29] Speaker 00:
Would she have been entitled to the lesser included offense?

[00:12:32] Speaker 00:
Under my argument, yes, she would, because NV testified both to simple assaults

[00:12:38] Speaker 00:
and to, I'll call them, aggravated assaults.

[00:12:42] Speaker 04:
Let's take that hypothetical and let's assume she did not testify.

[00:12:48] Speaker 04:
Why would it be the case that if there were two witnesses who came in and said that I don't have any evidence that she would have assaulted them, even if she decided not to testify,

[00:13:01] Speaker 04:
why would you not still be in the same box that you've got to have a rational jury find that there's enough to to support an assault and if all you have is unspecified hitting and bruising note there are two actors who could have been doing the hitting and bruising as you pointed out the them why is that why would that be enough for a rational jury to convict her of assault well i'll

[00:13:28] Speaker 00:
To try and make my point, I'll go one step farther.

[00:13:31] Speaker 00:
Imagine she presents no evidence other than cross execution.

[00:13:35] Speaker 00:
Okay.

[00:13:36] Speaker 00:
Okay.

[00:13:37] Speaker 00:
And in that, in that case, envy has testified to a spectrum of assault.

[00:13:44] Speaker 00:
The jury's not required to find any specific assault.

[00:13:47] Speaker 00:
They're just required to find the chart.

[00:13:50] Speaker 00:
What I mean is they don't have to find that Miss Sitting Eagle need person.

[00:13:55] Speaker 00:
They don't have to find that.

[00:13:56] Speaker 00:
That's not part of the charge.

[00:13:58] Speaker 00:
That's not part of the instructions.

[00:14:00] Speaker 00:
So in that event, the jury could find we're not convinced.

[00:14:06] Speaker 00:
We know something happened.

[00:14:08] Speaker 00:
He said, we'll accept simple assault, but we are not convinced.

[00:14:13] Speaker 00:
that it was an aggravated assault.

[00:14:15] Speaker 00:
And under those circumstances, that's exactly why she was entitled to lesser included offense.

[00:14:21] Speaker 04:
And that is exactly why we, go ahead, Judge McHugh.

[00:14:24] Speaker 01:
Well, I mean, there's no situation where the jury could not, a reasonable jury would have to find based on the evidence here that there was some aggravated assault that occurred, right?

[00:14:38] Speaker 01:
I mean, we've got medical evidence with the injury to the child.

[00:14:47] Speaker 00:
Yes.

[00:14:48] Speaker 00:
The question being, was it she who caused that injury or was any assaultive behavior on her part testified to by MV, just simple assault?

[00:14:59] Speaker 01:
Yeah.

[00:15:00] Speaker 01:
I mean, I don't understand why.

[00:15:02] Speaker 01:
I mean, they charged the aggravated assault.

[00:15:06] Speaker 01:
I mean, she might have done both, right?

[00:15:08] Speaker 01:
I don't understand why, where she's made a blanket denial on the aggravated assault, the jury could rationally say, well, she did participate in the assaults that resulted in these injuries or use these weapons, but it was only somehow a non-aggravated assault.

[00:15:37] Speaker 01:
Well, she either participated or she didn't and her argument was she didn't and they didn't believe it.

[00:15:45] Speaker 00:
I think, may I respond I'm sorry I know I'm over.

[00:15:48] Speaker 00:
Of course, please go.

[00:15:50] Speaker 00:
You know, she has a right to present a defense, and that doesn't mean that she's precluded from having the jury decide the degree of her culpability.

[00:16:01] Speaker 00:
And that's when, and I would really cite the court to Pacheco, because I think they deal with this exact situation where there's like an outright denial of even knowing that the drugs are there.

[00:16:14] Speaker 00:
But in light of all the evidence presented at trial,

[00:16:20] Speaker 00:
there was enough to require the lesser included offense.

[00:16:24] Speaker 00:
It's the opposite, actually.

[00:16:28] Speaker 00:
Because of all the other evidence, there was no evidence of the lesser included, but NV provides the evidence of the lesser included.

[00:16:36] Speaker 00:
Thank you.

[00:16:38] Speaker 04:
Thank you, counsel.

[00:16:42] Speaker 03:
Please proceed.

[00:16:44] Speaker 03:
Good morning, your honors.

[00:16:45] Speaker 03:
May it please the court.

[00:16:47] Speaker 03:
My name is Cameron Cook, and I represent the government in this case.

[00:16:50] Speaker 03:
I'm here to answer any questions and explain why the district court got this case right.

[00:16:55] Speaker 03:
Jumping right into the Western Included Defense issue, there simply was no evidence of just a simple assault occurring.

[00:17:03] Speaker 03:
MB testified that the defendant kneed him in the groin and he suffered a tremendous amount of pain from that.

[00:17:08] Speaker 03:
Then there was the medical evidence of a ruptured testicle that was removed from surgery to avoid infection.

[00:17:14] Speaker 03:
MB testified that the defendant and Truman hit him with metal and wooden sticks.

[00:17:19] Speaker 03:
And then MB also testified he was hit by the defendant in Truman with their hands.

[00:17:24] Speaker 03:
So there was a serious bottle injury, assault with a dangerous weapon with intent to cause bottle injury.

[00:17:29] Speaker 03:
And then assault by striking, wounding would be the hitting by the hands.

[00:17:33] Speaker 03:
But there was no evidence that there was ever a simple assault just by itself.

[00:17:37] Speaker 03:
The defendant has been noted, denied that she ever assaulted MB at all.

[00:17:43] Speaker 03:
And then she never put on any other evidence or contested on cross or in her closing.

[00:17:48] Speaker 03:
that the rectal testicle wasn't serious bodily injury, that the sticks shown in evidence were not or blunt objects, metal rods, that they were not dangerous weapons in the way they were used, or that she assaulted him but just without intent to cause bodily injury.

[00:18:02] Speaker 01:
What do you do with Pacheco?

[00:18:04] Speaker 01:
Oh, sorry.

[00:18:06] Speaker 03:
No good, Ken.

[00:18:08] Speaker 03:
Your Honor, I think Pacheco is a strong case for us, actually.

[00:18:11] Speaker 03:
To me, I think the point the defense is trying to make is that

[00:18:16] Speaker 03:
A defendant's entitled to a lesser included, even if it's inconsistent with the defense they give, as long as there's evidence to support it.

[00:18:24] Speaker 03:
But if you look at Pacheco and I think that case, as well as Bruce and McIntosh, they all stand for the proposition that there needs to be evidence disputing the elements for the lesser included to be given.

[00:18:34] Speaker 03:
So in that case, it was a drug case.

[00:18:36] Speaker 03:
There was about 28 grams of lead methamphetamine found.

[00:18:39] Speaker 03:
It was in baggies, in a house.

[00:18:42] Speaker 03:
There was a law enforcement officer who testified.

[00:18:44] Speaker 03:
He would find it hard to believe that the meth, that the drugs would be for personal use.

[00:18:49] Speaker 03:
There's also a drug dealer who testified and he said it's likely not personal use based on the packaging.

[00:18:55] Speaker 03:
And then the defendant himself testified, denied all knowledge of the drugs being in the room.

[00:19:00] Speaker 03:
He did say he was a drug user, but still the court found that all the evidence mitigated in favor of intent to distribute.

[00:19:07] Speaker 03:
And so the court found that it was proper to not give a lesser included of possession.

[00:19:12] Speaker 03:
And I think looking at burns, actually, this is a good comparison for what we have here.

[00:19:17] Speaker 01:
Let's stop there for a minute, because if you couldn't get instruction, you were entitled to instruction on simple possession.

[00:19:26] Speaker 01:
But his position was, I didn't even know the methamphetamine was there at all.

[00:19:33] Speaker 01:
Isn't that a blanket denial like what we have here?

[00:19:37] Speaker 03:
It is your honor and that's why I think Pacheco is a strong case and is on point for the situation here and why what the district court did was proper.

[00:19:48] Speaker 04:
the defendant has indicated that there was evidence of simple assault.

[00:19:53] Speaker 04:
And that's what I want to focus on for a second.

[00:19:55] Speaker 04:
I mean, and the two that were examples that were pointed out were the evidence of just the whipping with the belt.

[00:20:03] Speaker 04:
And I'm not saying just in the sense that I don't think that's significant, but just the whipping of the belt.

[00:20:08] Speaker 04:
And then the fact that there was bruising on the defendant and could not, the question would be, could a jury infer from that

[00:20:17] Speaker 04:
that in some instances there was simple assault, even if the jury might believe that, well, the jury could believe that there were other things, but couldn't they believe that and then just discount the more egregious instances that were alleged in the indictment?

[00:20:37] Speaker 03:
No, Your Honor, because that would be, you know, those separate bruises and separate hitting incidents, that would be assault by striking, beating, and wounding, which is not a lesser included defense.

[00:20:47] Speaker 03:
The evidence of the serious bodily injury, just to take that count, was the ruptured testicle from being need.

[00:20:53] Speaker 03:
And there was no evidence contesting that that was a serious bodily injury, nothing cross-examining the doctor about the significance of that injury.

[00:21:02] Speaker 03:
So no, I don't think that evidence would allow a jury to conclude that there was a simple assault there.

[00:21:08] Speaker 03:
Simple assault in the case law is an attempt, a willful attempt to injure

[00:21:12] Speaker 03:
or it's a threat coupled with the present ability to do so, there's no evidence of the defendant doing that.

[00:21:18] Speaker 03:
In this case, there was evidence of hitting just with their hands, but nothing like a simple assault, as it's defined.

[00:21:24] Speaker 03:
And again, the specific, what was argued to the jury, being hit with sticks, how to attempt to harm MB and being meat in the groin ruptured his testicle.

[00:21:33] Speaker 03:
Those specific instances were never challenged in terms of dangerous weapons, intent to do harm,

[00:21:38] Speaker 03:
or serious model of injury.

[00:21:40] Speaker 02:
Council, Miss Lord argued that even had Miss City Eagle not testified or had she presented no evidence at all that she still would be entitled to the lesser included defense instruction.

[00:21:52] Speaker 02:
So that to me brings up the distinction between affirmatively pressing evidence versus challenging the government's evidence.

[00:21:59] Speaker 02:
So what's your view of the argument made by Miss Lord about her not really needing to present or put forward her own evidence?

[00:22:07] Speaker 03:
Your honor, if all the cross and argument was the same except the defendant presented no case, I think the correct result here was still to not give a lesser included because again, there would be no evidence of a justice in full assault.

[00:22:20] Speaker 03:
I think the fact that the defendant testified and put on evidence of the blanket denial that she never assaulted him at all just makes it even stronger that the district court did not abuse its discretion.

[00:22:33] Speaker 03:
If you look at the case law, I think in, it's,

[00:22:38] Speaker 03:
Bruce, I think, deals with that.

[00:22:39] Speaker 03:
And even, you know, it concedes that's the plain error case.

[00:22:42] Speaker 03:
But it even seemed to allow putting elements in play just by cross.

[00:22:48] Speaker 03:
So I mean, even if there was an attempt to do it, even half-heartedly, that could open up the door for lesser included.

[00:22:53] Speaker 03:
But here, there was none of that, not even an attempt to show that the elements were in dispute.

[00:22:59] Speaker 03:
If I could turn to Burns, Your Honor, because I think this is actually helpful.

[00:23:03] Speaker 03:
That's an older case from the 10th Circuit where basically the charge of possession was possession with an intent to distribute a controlled substance.

[00:23:11] Speaker 03:
And it seems like most of the government's evidence was just the fact that there was a lump of drugs in a bag with a scale.

[00:23:17] Speaker 03:
There the court found it was an abuse of discretion to refuse the lesser included defense of simple possession because the jury could infer the drugs were meant to be distributed or the jury could not infer that.

[00:23:29] Speaker 03:
So that is a difference here because there is no way for a jury to infer a simple assault incurred like a drug case.

[00:23:35] Speaker 03:
They could infer a certain amount of drugs were intended to be possessed, but that's just not the case with an assault.

[00:23:41] Speaker 03:
We have specific acts that that MV testified the defendant did.

[00:23:45] Speaker 03:
And there's frankly no way for the jury just to speculate about, you know, other acts that may have occurred also, that would be improper.

[00:23:51] Speaker 01:
Well, there was also testimony of just hitting with the hands, right?

[00:23:56] Speaker 03:
Yes, Your Honor.

[00:23:57] Speaker 01:
I mean, could that be simple assault?

[00:24:00] Speaker 03:
I think that's assault by striking, beating, and wounding.

[00:24:02] Speaker 03:
I think if you just look at it by itself.

[00:24:06] Speaker 03:
But then I would go back to what the government actually argued and the evidence presented.

[00:24:10] Speaker 01:
Well, wait, wait.

[00:24:10] Speaker 01:
You didn't finish your sentence.

[00:24:12] Speaker 01:
If you looked at that on its own, what were you going to say?

[00:24:16] Speaker 03:
That would be assault by striking, beating, and wounding, just the hitting with the hands.

[00:24:20] Speaker 01:
And would that be a simple assault, or would that be aggravated assault?

[00:24:26] Speaker 03:
That would not be simple assault.

[00:24:28] Speaker 03:
It would be assault by striking, beating, or wounding.

[00:24:31] Speaker 03:
Because simple assault doesn't require physical contact, but assault by striking, wounding does.

[00:24:37] Speaker 03:
But I think when you look at it though, when you look at actual elements in dispute, it's what the government argued at trial, which was the kneeing in the groin and the sticks.

[00:24:46] Speaker 03:
That was a substance of the charge, and that was never contested.

[00:24:49] Speaker 04:
And so I understood you say that the assault by striking, beating, and wounding

[00:24:55] Speaker 04:
Was is not a lesser included of the offenses that we have here, right?

[00:25:01] Speaker 03:
That's correct, your honor.

[00:25:01] Speaker 03:
And there's 10 circuit precedent on that we cited in our brief.

[00:25:04] Speaker 03:
I'm forgetting the case name, but that's been decided.

[00:25:07] Speaker 04:
Yeah.

[00:25:12] Speaker 04:
Do you agree that there that if you're conceiving it as the four part test that the latter two parts of the test of the ones that are at issue here, the so-called Fitzgerald test.

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

[00:25:26] Speaker 03:
Okay.

[00:25:27] Speaker 03:
And turning to that fourth part, mostly talking about the third part.

[00:25:30] Speaker 03:
The final part of that test is that a rational jury could acquit of the greater offense and convict of the lesser.

[00:25:37] Speaker 03:
Here, a rational jury could not do that.

[00:25:39] Speaker 03:
That would require two things.

[00:25:42] Speaker 03:
One, the jury just ignoring the defense and the government's case.

[00:25:46] Speaker 03:
Again, because there was no simple assault from either side.

[00:25:49] Speaker 03:
And then seconds, they would require the jury to speculate about a simple assault, which there was no evidence of.

[00:25:55] Speaker 03:
So maybe the defendant, you know, threatened to punch and be at one point, but didn't actually do it.

[00:26:03] Speaker 03:
You know, there's no evidence of that happening.

[00:26:04] Speaker 03:
You know, it'd be improper for the jury to speculate.

[00:26:07] Speaker 03:
And the district court, I think was right, did not abuse its discretion in refusing that lesser included offense for these two counts.

[00:26:15] Speaker 02:
Council, can I ask you about a different issue that was raised?

[00:26:19] Speaker 02:
by the appellant, and that is what I'll call the were they lying questions that were asked on cross-examination.

[00:26:28] Speaker 02:
What is your view as to whether or not that's been preserved?

[00:26:31] Speaker 02:
And I know your viewpoint on whether it was preserved to the trial level, but what about whether it's properly before us or it's been waived on appeal?

[00:26:41] Speaker 03:
Well, Your Honor, I mean, candidly, the defense

[00:26:44] Speaker 03:
The way they grouped their argument was plain error for these cumulative errors.

[00:26:48] Speaker 03:
I don't think they went specifically for each issue to do that.

[00:26:52] Speaker 03:
So, you know, I don't want to give a position opposite to what I did in the briefing.

[00:26:56] Speaker 03:
I think it is plain error, regardless of whether the score considers it waived.

[00:27:02] Speaker 03:
We addressed it fully.

[00:27:03] Speaker 03:
I think if you look to Kepler and Burgess, I know this is getting beyond your question, but this is not a close call on this issue.

[00:27:09] Speaker 03:
We have recent tensor-interpreter precedent saying it's not plain error to ask these questions.

[00:27:14] Speaker 03:
You know, I don't think there's a lot there in that issue.

[00:27:21] Speaker 03:
If there are no other questions, I guess I'd like to just address the Hilo's error issue, which was raised briefly by the defense.

[00:27:28] Speaker 03:
This was a strong case.

[00:27:30] Speaker 03:
Just to briefly go over it, MV testified about specific acts that the defendant did to him causing these injuries.

[00:27:37] Speaker 03:
This testimony was corroborated by the medical evidence.

[00:27:40] Speaker 03:
It was corroborated by physical evidence found in the home during a search warrant.

[00:27:44] Speaker 03:
His window was nailed shut.

[00:27:46] Speaker 03:
There was a lock on the door.

[00:27:47] Speaker 03:
There were zip ties found in the house.

[00:27:50] Speaker 03:
MB testified about specific items found in the house used to hit him.

[00:27:54] Speaker 03:
And then there was evidence from law enforcement basically showing the defendant trying to hide MB's whereabouts and cover up what happened to him.

[00:28:02] Speaker 03:
So the government asserts that there were no errors in this case.

[00:28:06] Speaker 03:
But even if there were, these all were minor and the defendant was able to testify and present a full case.

[00:28:12] Speaker 03:
and the evidence of her guilt is strong and nothing here warrants reversal.

[00:28:17] Speaker 03:
If there are no other questions, your honor, I would ask the court to affirm.

[00:28:24] Speaker 04:
I hear none, so I think the case is submitted.

[00:28:27] Speaker 04:
Thank you.

[00:28:28] Speaker 04:
I appreciate your arguments, counsel.