[00:00:00] Speaker 03:
first case, case number 24-6244, United States versus Velazquez Hernandez.

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Counsel?

[00:00:11] Speaker 02:
Judge, I've just asked him to start his camera.

[00:00:14] Speaker 03:
Okay.

[00:00:16] Speaker 03:
All right.

[00:00:17] Speaker 03:
Mr. Lunn, we can see you.

[00:00:18] Speaker 03:
You can proceed when you're ready.

[00:00:21] Speaker 04:
Can you hear me okay now?

[00:00:22] Speaker 03:
Yes, we can.

[00:00:24] Speaker 04:
Good.

[00:00:24] Speaker 04:
Thank you.

[00:00:25] Speaker 04:
I'm sorry.

[00:00:26] Speaker 04:
May it please the court?

[00:00:27] Speaker 04:
Good morning.

[00:00:28] Speaker 04:
My name is Bill Lund.

[00:00:30] Speaker 04:
I represent Sergio Velasquez Hernandez.

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This case involves the application of the newly revised federal rule of criminal procedure 106, which is known as the rule of completeness.

[00:00:45] Speaker 04:
The advisory committee notes seem as if they're almost written for this case.

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They state that the rule of completeness cannot fulfill its function.

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if a party creates a misimpression and can then object on hearsay grounds and exclude the statements.

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Council, before you get too far down the road of the merits here, what is our standard of review?

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Do you agree now that you are on plain error review?

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No.

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What is your position?

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No.

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Why not?

[00:01:20] Speaker 04:
No, because I think the Beach case applies in this case.

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And that is a situation where all you have to do is to make the court aware of the argument that has been made.

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And that is what was done in this case.

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There's no requirement that you cite verbally the rule of completeness.

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There's no requirement that you state the rule 106.

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And we have cases, the Cades case and the Holquin case, which is a Supreme Court case, it stated that all you have to do is to put the court on notice.

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And that was done.

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What did you say about rule 106?

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Did you specifically invoke rule 106 to the district court?

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No, but neither did the defense attorney in the Beach aircraft case either.

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So, and the court in 1988, the Supreme Court found that the court had been put on notice of the claim that was being made.

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And in fact, in this case, the court, when at the instruction conference, as the defense attorney was reiterating the fact that he should be able to get this information in, the court said,

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that your argument is preserved.

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I think that the court unquestionably was on notice.

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So are you asking us, in rule 103, there is some wiggle room to assume that the court understood your objection if it's the substance is apparent from context.

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And

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What in this record should counsel us to conclude that the court understood that you were making this quite precise Rule 106 argument in the way that you're advancing it now?

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The entire argument had to do with his concern about the welfare of his mother.

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And that was the reason why he had to take the drugs from Los Angeles to Little Rock.

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And if he didn't do that for this drug lord that was in Mexico, the Mexican drug lord was going to have his mother killed.

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So it's a relevant issue that his state of mind, which is extremely well shown in the, particularly the interview video where he breaks down.

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Wait a minute.

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What did you argue to the district court?

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was the misleading things that needed to be straightened out to have this matter admitted.

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What did you tell the district court?

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Well, the attorney told the district court that this was his story.

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This was his... But wouldn't you agree

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Wouldn't you agree that the rule of completeness requires that it be necessary to fully disclose what was going on in light of misleading things from either the context or what the prosecution had put into evidence?

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Oh, absolutely.

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Don't you concede that's necessary under rule 06?

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Yes.

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And in fact, the advisory notes,

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I want you to go there.

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I want you to tell me what did you tell the district court in that regard?

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What was it that needed to be clarified that wasn't already clear?

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Well, he said that this was the most important, powerful piece of evidence that there was in this entire case.

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And it was, unquestionably.

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He breaks down eight times.

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Well, all the information that was before the court indicated that he was nervous and that he was upset.

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All that was already before the court, wasn't it?

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He was upset because they were going to kill his mother.

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And that came out during the course of the trial.

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But the state of mind, which is what advisory notes now allow you to get into... Okay, if you had...

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If the information had been included, would there be a statement that I'm so upset because of my mother?

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That was that was that was covered during the course of his direct examination by the defense attorney.

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Exactly.

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And you didn't you didn't need anything more to do that, correct?

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I don't think so.

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I think what was an issue here was his state of mind and why he was bringing the

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drugs from Los Angeles.

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He was bringing the drugs from Los Angeles because he was being coerced by the drug lord who said that he was going to kill his mother.

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And his state of mind because he broke down emotionally eight times during that interview was exclusively based on his statements that he was worried about the welfare of his mother.

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It was highly relevant to address defense.

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Do we need to address

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your argument as to each piece of evidence, right?

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We have to look at it separately for the post-arrest interview and then separately for the dash cam.

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Is that fair?

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They're both almost virtually the same.

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The police officers pretty much have the same explanation.

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The patrol officer says that

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He can't tell whether it was about his mother.

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He really couldn't understand.

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He was crying.

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It was difficult to understand.

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And Officer Snyder during the interview says he cried through the whole thing, whether we were talking about his mother or whether we were talking about narcotics.

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And he said that he could not say whether he was crying because he had been caught or about harm to his mother.

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But when you then play these tapes,

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In the first instance, there's one case which happens within minutes of the time that a patrol officer gets into his car and he says, my mom, they're going to kill my mom.

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So that's the first instance.

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And then the second instance, of course, are the eight times where he literally breaks down and every single time the reason why he

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breaks down is that he makes a comment about concern over the welfare of his mother.

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So when the officers are on the stand saying, well, gee, we just really didn't quite know what this was all about, there's no question when you watch these two tapes, and I hope that you had the opportunity to do that, that the reason why his state of mind, which the advisory notes say is something that

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relevant in the rule of completeness analysis.

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His state of mind was the reason why he had to take the drugs was because they were going to kill his mother if he didn't do that.

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Does it matter for purposes of our assessment of your 106 argument that the government didn't play the post arrest interview?

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Any portion of it?

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I'm sorry, is it relevant?

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Does it matter for purposes of how we think about rule 106 here that the government didn't play any portion of the post arrest interview?

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They presented testimony, but they didn't play the video.

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How should we be thinking about that?

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No, I think it is highly relevant because again, it shows his state of mind.

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His state of mind is one of extreme agitation, which is based on his fear that now that

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the situation has arisen with the stop that the drug lord is now going to kill his mother.

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And that comes across loud and clear.

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And for purposes of putting on the duress defense, it was absolutely critical.

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I mean, you look at the Moore case, our adversarial system depends on opposing parties offering evidence that will strengthen their respective positions and damage that

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their opponent.

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And that's exactly what we have here.

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The government did not want this evidence whatsoever.

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And again, the advisory note state, and they're arguing that it shouldn't be admitted because it's hearsay, the advisory note state that the party creating the distortion

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forfeits the right to object based on the grounds of hearsay.

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They forfeit it.

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That is what the judge should have responded instead of saying, oh, you're right, that was hearsay.

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In the court's ruling, which he does three times during the course of this trial, the court decides that these other parts of the interview and the traffic stop can't be shown to the jurors.

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His ruling is based on the fact that it's hearsay.

[00:11:08] Speaker 03:
But that's because, Mr. Rahm, it certainly seems that the district court was reasoning in response to the absence of your 106 argument.

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I mean, what you had presented to the district court was that you identified the evidence you wanted in.

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You explained why it was really important.

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You said, this is important evidence.

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This is his statement.

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But you did not present the district court with the basis for your

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with the same basis of the argument that you're making now on appeal?

[00:11:36] Speaker 04:
Well, his comments at the time of Snyders, the defense attorney's comments at the time of Snyders, is that when he says it's hearsay, the defense counsel says it's an important piece of evidence.

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It's the first time he tells his story.

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And that's the reason why it was important.

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It provides for an explanation of why he's bringing drugs.

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I mean, for instance, they don't even.

[00:12:05] Speaker 02:
Can I ask about beach aircraft again?

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Because it seems to me your argument relies heavily upon that case and the idea that you didn't need to tell the district court that you were offering this evidence under the rule completeness or 106, because it should have been obvious.

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But in beach aircraft, I mean, the issue was the whole trial was about whether or not this crash had occurred due to aircraft malfunction or pilot error.

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And the witness testimony, the examination seemed to infer that the witness's opinion was that it was pilot error, when really it was misleading.

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And it was obviously misleading because his whole letter was about aircraft malfunction.

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So that seems somewhat categorically different.

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This goes to Judge Murphy's question about what's misleading about the scenario here, because the story that he was transporting the drugs to save his mother, that came out at trial.

[00:13:02] Speaker 04:
Well, but it didn't come out in terms of what the defendant's state of mind was, which was best exemplified by the recordings.

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But the officer testified he was crying almost through the entire interview.

[00:13:16] Speaker 04:
Well, that may be, but just simply to say he was crying without saying why he was crying, why he broke down so many times, and every single time

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He broke down.

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He made a statement about the welfare of his mother.

[00:13:33] Speaker 03:
I thought that you asked the district court at one point to play the video without the audio.

[00:13:38] Speaker 04:
Yes, that's right.

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We did do that.

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And the court wouldn't do that either because the court said that that was hearsay, which was not consistent with the advisory notes, which state that the rule actually has been expanded.

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It covers all statements, including statements made through conduct.

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So that was another rule of error that the district court made.

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And rules, and when the court makes an error of law, that is by definition an abuse of discretion.

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And that's what happened in this case.

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The court consistently, three times, actually four, if you include the statement about the

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the conduct four times, the court did not allow this in because of hearsay.

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And the government had been allowed to basically manipulate the defendant's duress defense by saying that it just really wasn't quite clear what he was crying about.

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When if these items had been presented,

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in full, or even if they had been taken out in snippets in the same way that the government did.

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The government had 20 minutes of snippets to show exactly what the reason was why the defendant was crying.

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Then under those circumstances, the defendant's duress defense would have been fortified substantially.

[00:15:12] Speaker 04:
It certainly calls into question the

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validity of the verdict in this case when the jury never saw any of these interviews.

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I'd like to reserve the remainder of my time.

[00:15:27] Speaker 03:
Thank you, Mr. Lun.

[00:15:31] Speaker 03:
Mr. Krieger.

[00:15:33] Speaker 00:
May it please the court, Stephen Krieger on behalf of the United States.

[00:15:37] Speaker 00:
The district court did not abuse its discretion, much less plainly air

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when it failed to admit defendant's exhibits one and two under the rule of completeness.

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Mr. Lahn and the court have talked a great deal about the standard of review, and I would submit that it is for plain error.

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Looking at beach first, I think Judge Frederico gave a very good summary of beach aircraft.

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Ultimately, 106 wasn't an issue in beach aircraft, and the court said that it wasn't an issue.

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But in the footnote where it was explaining preservation,

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It noted that the counsel who was offering it was interrupted first by opposing counsel and then by the court.

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What the proposing counsel had said was, talking about the witness, he had been asked to answer every single question Mr. Toothman, the opposing counsel, had respecting, at which point he was cut off by the court.

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The Supreme Court explained that that was enough given the context

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to put the judge on notice that he was raising a completeness argument.

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Here on the other hand, the first attempt to admit defense exhibit one, which was the police station interview, happened at page 29 and 30 of volume three of the record on appeal, before any evidence was admitted, before any evidence was offered.

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The rationale that was given was because, as has been said, it was an important piece of evidence.

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It was the first time he told his story.

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But rule 106 doesn't talk about

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the importance of the evidence or first time telling one's story.

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Instead, it says that evidence may be offered, excuse me, the adverse party may require the introduction at the time, at the time that the other evidence is offered.

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So pre-trial before any evidence is offered, rule 106 simply has no application.

[00:17:29] Speaker 00:
I would also point out that based on his story,

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And based on what both the court and- I'm sorry, Mr. Hart, can I interrupt you for a second?

[00:17:39] Speaker 03:
Of course.

[00:17:40] Speaker 03:
Can you say more about your position that Rule 106 doesn't even apply here separate from that its requirements may not be satisfied?

[00:17:49] Speaker 03:
I wasn't understanding exactly where you were getting at.

[00:17:53] Speaker 00:
Okay.

[00:17:53] Speaker 00:
I'm talking about at the very beginning.

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So when he first, when Mr. Hernandez first sought to admit defendants exhibit one, it was before trial.

[00:18:04] Speaker 00:
So no evidence had been submitted by the government, nothing about the police station interview had been discussed.

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And so Rule 106 says, and to quote, if a party introduces all or part of a statement, an adverse party may require the introduction at that time, at the time that the opposing party introduces a portion of the statement, other parts or any other statement that in fairness ought to be considered at the same time.

[00:18:32] Speaker 00:
And so since no evidence had been admitted or offered at pages 29 and 30, the attempt to offer Defendants Exhibit 1 at that time could not be based on Rule 106.

[00:18:47] Speaker 00:
I'll jump ahead to where he sought to admit Defendants Exhibit 1 the second time, page 167 to 68.

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And when the district court asked if there was any additional rationale, and this is happening at the very end of trial,

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If there was any additional rationale for admitting that evidence, hearkening back to pages 29 and 30 pre-trial, the defendant said no, there was no additional rationale.

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So I'd submit, Defendants Exhibit 1 plainly falls outside of being offered for Rule 106.

[00:19:19] Speaker 03:
But does it matter for this is the same question that I asked Mr. Lund, does it matter for purposes of our review under rule 106 that the government never offered any portion of the video?

[00:19:31] Speaker 03:
In other words, one of our cases talk about completing portions.

[00:19:36] Speaker 03:
The rule certainly seems broader than that, but I wanted to know what the government's position was on on my question.

[00:19:43] Speaker 00:
I think, and I'm not sure I've seen any case, at least where this court's addressed it, I think based on the plain text of the rule, if the government had asked, for example, if the government had asked in a murder case, to use the example from the application, or from the committee's notes, is this your gun?

[00:20:04] Speaker 00:
And the defendant had said, yes, that's my gun, but I sold it six months ago.

[00:20:08] Speaker 00:
And the government had a witness who testified

[00:20:14] Speaker 00:
What did the defendant say?

[00:20:15] Speaker 00:
He said, it was my gun.

[00:20:18] Speaker 00:
I didn't ask anything else.

[00:20:20] Speaker 00:
If the defendant wanted to play the statement rather than ask the witness, I think under rule 106, he could probably play the statement in light of the portion, the clause, or any other statement.

[00:20:34] Speaker 00:
That being said, I think it also is within the broad discretion of the district court to say, they admitted it through testimony.

[00:20:41] Speaker 00:
You have to admit it through testimony.

[00:20:43] Speaker 00:
As this court explained in Harry, the district court under Rule 106 has enormous discretion how to apply the rule.

[00:20:52] Speaker 00:
So does it have to be in the same format?

[00:20:55] Speaker 00:
This court has never said, and I think it would be within the district court's discretion at that point.

[00:21:00] Speaker 02:
Mr. Craig, can I ask you, is the government's position that we should be reviewing this on a plain error analysis or that there's a pellet waiver here?

[00:21:10] Speaker 02:
the appellant did not argue for plain error in their opening brief that it's waived and we shouldn't be considering this argument at all.

[00:21:16] Speaker 00:
Your honor, we did argue for waiver and I'm happy to stand by that.

[00:21:21] Speaker 00:
I understand that this court, different panels of this court and different judges have taken positions that the criminal defendants can raise plain error in their reply brief and argue it for it there and it's no longer considered waived.

[00:21:35] Speaker 00:
Mr. Lunn, with due respect,

[00:21:39] Speaker 00:
is a very distinguished attorney.

[00:21:40] Speaker 00:
He had the opportunity to argue it in his opening brief, and he chose not to do it.

[00:21:45] Speaker 00:
We would stand by waiver, but this court ultimately doesn't have to reach it if it chooses not to, because it could say it's not plain error.

[00:21:57] Speaker 03:
The government makes an argument in your brief about under Rule 403.

[00:22:02] Speaker 03:
And if we're under the plain error standard of review framework, what are we supposed to do with your Rule 403 argument?

[00:22:13] Speaker 00:
Your Honor, and I understand in our brief, we tied it more towards the first prong.

[00:22:16] Speaker 00:
I think it probably settles better in the third prong of plain error, third prong asking whether there's, but for the error, is there a reasonable likelihood of a different result?

[00:22:28] Speaker 00:
And 403, applying it under the third prong,

[00:22:31] Speaker 00:
Would ask, is there a reasonable likelihood that the district court would have admitted the evidence not withstanding rule 403.

[00:22:37] Speaker 00:
Now, it's that that Mr. Hernandez has not shown that there's a reasonable likelihood in large part, because given all the facts that were admitted, the undisputed fact that he was crying that he was upset to use.

[00:22:55] Speaker 00:
the words that his attorney used in cross-examining the Sergeant Seale and Detective Snyder.

[00:23:02] Speaker 00:
He was, quote, very emotional, close quote.

[00:23:06] Speaker 00:
The only real purpose of admitting video of him crying is to influence the emotions of the jury, which is the type of unfair prejudice Rule 403 is designed to.

[00:23:20] Speaker 03:
Are you, I think I agree with you that it's a better fit under the third prong than the first, but still, is the government aware of any cases where we've done an analysis of the reasonable probability under the third prong by reference to something as discretionary as a determination like Rule 403?

[00:23:37] Speaker 03:
I mean, is that just some, are you aware of any case where that crosswalk has been made?

[00:23:43] Speaker 00:
To be perfectly honest, I'm not aware of any case, Your Honor.

[00:23:46] Speaker 00:
And I will say that's not where I would necessarily have to hang my,

[00:23:50] Speaker 00:
my argument on the third prong.

[00:23:53] Speaker 00:
I think that's one way of getting to the third prong.

[00:23:55] Speaker 00:
I think the second way of getting to the third prong is to look at what this court did in Pierce, what the Second Circuit did in Thiam, the Seventh Circuit did in Haddad, and the Ninth Circuit did in Lopez, which explained in each of those cases that any error, and many of those were preserved errors, any error was harmless because the information was presented to the jury through witness testimony.

[00:24:18] Speaker 00:
And here, pages 69 to 72, you had Sergeant Seale testifying that Mr. Hernandez was crying during the trip back and clarified upon cross-examination that he said he was, quote, in fear of that his mother who is in Mexico would be harmed.

[00:24:42] Speaker 00:
And you had page 92 where Detective Snyder

[00:24:46] Speaker 00:
and responding to cross-examination testified that Mr. Hernandez was emotional during the interview.

[00:24:53] Speaker 00:
He was asked that and he said yes, and then inserted that he was several times.

[00:24:59] Speaker 00:
He confirmed that he was crying.

[00:25:01] Speaker 05:
Mr. Craig, isn't some aspect of completeness the proposition that

[00:25:12] Speaker 05:
An actual video of what was happening is much better than an oral recitation from an adverse witness about what was happening.

[00:25:25] Speaker 05:
And for completeness, there ought to be some thumb on the scale in favor of the video.

[00:25:34] Speaker 00:
Your Honor, I push back and respectfully no.

[00:25:36] Speaker 00:
I don't think, at least rule 106 and the rule of completeness, that's not the issue.

[00:25:41] Speaker 00:
There might be an argument about the best evidence rule, video being the better evidence of my rule.

[00:25:49] Speaker 05:
Wait a minute, wait a minute.

[00:25:51] Speaker 05:
The rule says that, in fairness, ought to be considered at the same time.

[00:26:06] Speaker 05:
is proposed, isn't that a lot better than a witness's recitation and comes within that phraseology of 106?

[00:26:17] Speaker 00:
So two points in response, Your Honor.

[00:26:19] Speaker 00:
First, the fairness that Rule 106 talks about, as this Court has explained, has to do with correction of misimpressions.

[00:26:29] Speaker 00:
or some sort of misstatement, something along those lines, not that there's better, more compelling evidence.

[00:26:36] Speaker 00:
And we can see this, turning to the second point, in this court's decision in Williston, where the government admitted, actually admitted portions of the video, 24 minutes worth of clips from a 90-minute interview, and the defendant sought to admit clips from the same interview.

[00:26:56] Speaker 00:
arguing that they would have provided a more complete picture of what happened and shined a different light.

[00:27:01] Speaker 05:
Wait a minute, that's different.

[00:27:03] Speaker 05:
That's selection of video.

[00:27:08] Speaker 05:
I'm asking if the video is available and it's kept out and all you have is just a cold recitation on the record from an adverse witness about what happened.

[00:27:25] Speaker 05:
should be allowed in?

[00:27:28] Speaker 00:
Well, I think if I can finish talking about Williston, that answers your question.

[00:27:35] Speaker 00:
So in Williston, the district court did allow the defendant to ask certain questions on cross-examination to get some of the information that he sought to be admitted.

[00:27:46] Speaker 00:
He didn't allow them to play clips, but he was allowed to ask questions.

[00:27:52] Speaker 00:
In Williston, the defendant argued that that violated the rule of completeness, which I think is the very situation you're positing.

[00:28:00] Speaker 00:
And this court said that the approach offered by the defendant didn't satisfy Rule 106's requirements that the additional statements be offered to clarify or explain misleading evidence admitted by the other party.

[00:28:15] Speaker 03:
But in that case, the government offered video, and the defendant wanted more portions of video.

[00:28:22] Speaker 03:
And I think Judge Murphy's question, if I'm understanding it correctly, is here we have testimony and the defense wants video and isn't in fairness that video properly within the scope of exactly what Rule 106 contemplates.

[00:28:40] Speaker 00:
Well, I do think that a court could exercise the very broad discretion in applying the vague fairness test to allow that.

[00:28:50] Speaker 00:
I'm not saying it would be

[00:28:51] Speaker 00:
and abuse of discretion to allow that.

[00:28:54] Speaker 00:
But it is, as this court explained in Harry, it is very broad discretion that the court has.

[00:29:00] Speaker 00:
And this is why I point back to Williston, because yes, the government played videos.

[00:29:07] Speaker 00:
And you would think if the government played videos, then fairness at its heart would probably allow the defendant to play videos rather than to elicit, at least based on the concerns that have been expressed, the cold testimony

[00:29:22] Speaker 00:
But here, the government only admitted cold testimony on its behalf.

[00:29:28] Speaker 00:
The fairness would be even less to say that the defendant can also only offer testimony.

[00:29:37] Speaker 00:
One other thing I would point to, the entire reasoning, at least that Mr. Lund has suggested that these videos should have come in in fairness, is so the jury could see that he was crying about his mother.

[00:29:52] Speaker 00:
But as Sergeant, or excuse me, Detective Snyder explained, it would be speculation to know what he was crying about because the only person who can truly explain that is the defendant.

[00:30:04] Speaker 00:
And at pages 125, 126, 133, and 140 of the record on, volume three of the record on appeal, the defendant did just that, he explained it.

[00:30:14] Speaker 00:
He explained that he was worried about his mother, that he was shaken up because of his mother,

[00:30:19] Speaker 00:
that he was schizophrenic because what could have happened could have happened to his mother and he was already panicking and completely nervous about what was happening to his mother.

[00:30:29] Speaker 00:
In addition to the fact that what was and I see that I'm running out of time.

[00:30:35] Speaker 00:
So unless the court has any further questions.

[00:30:39] Speaker 00:
I'd ask that you affirm the judgment in the sentence below.

[00:30:41] Speaker 00:
Thank you.

[00:30:41] Speaker 03:
Thank you, counsel.

[00:30:43] Speaker 03:
Does Mr. Lund have any time remaining?

[00:30:45] Speaker 05:
Yeah, no, he doesn't.

[00:30:48] Speaker 03:
OK.

[00:30:48] Speaker 03:
Thank you counsel for your helpful arguments.

[00:30:50] Speaker 03:
We will submit the case.