[00:00:05] Speaker 02:
The last case this morning is 23-7088, United States versus Ward.

[00:00:13] Speaker 02:
Counsel for Appellant, if you'd make your appearance and proceed, please.

[00:00:20] Speaker 00:
Good morning, almost good afternoon, Your Honors, and may it please the Court.

[00:00:24] Speaker 00:
Hunter Haney for Kevin Ward.

[00:00:27] Speaker 00:
This appeal concerns several heirs that unduly limited Mr. Ward's duress and defense during this close credibility-driven trial.

[00:00:34] Speaker 00:
Unless the court prefers otherwise, I plan to focus on two of those errors.

[00:00:38] Speaker 00:
First, the Doyle error, and then time permitting the instructional errors.

[00:00:42] Speaker 02:
Mr. Hanney, let me just ask you a logistical question first that relates to the Doyle error.

[00:00:47] Speaker 02:
Sure.

[00:00:49] Speaker 02:
Do we, is there a complete transcript of what Mr. Ward's interview with Detective Black in the record?

[00:00:55] Speaker 02:
I mean, I didn't see anything to that effect.

[00:00:58] Speaker 00:
There is not a complete transcript.

[00:01:00] Speaker 00:
There was no transcript that was submitted to evidence of trial, so it wasn't included into the record.

[00:01:04] Speaker 00:
It was defense exhibits 564.

[00:01:06] Speaker 00:
I'd be happy to submit that to the court.

[00:01:08] Speaker 02:
There was one.

[00:01:09] Speaker 00:
There was one that was produced, but it is not in the record.

[00:01:12] Speaker 00:
OK.

[00:01:12] Speaker 00:
It was not admitted at trial.

[00:01:13] Speaker 00:
It was not admitted at trial.

[00:01:15] Speaker 00:
Correct.

[00:01:15] Speaker 00:
All right.

[00:01:16] Speaker 00:
All right.

[00:01:16] Speaker 00:
That's fine.

[00:01:17] Speaker 00:
And there is a summary, a pretty specific summary at page 55, volume one of the record, that does pretty accurately transcribe exactly, not transcribe, but summarize exactly what occurred during the interrogation.

[00:01:31] Speaker 00:
Got it.

[00:01:31] Speaker 00:
Thank you.

[00:01:33] Speaker 00:
So turning to that doilier, Mr. Ward was tried jointly with his co-defendant, Armenta.

[00:01:38] Speaker 00:
But if anything, the joint enterprise was between Armenta and the government, who teamed up to weaponize Mr. Ward's Miranda's post-arrest silence to impeach his testimony regarding his duress.

[00:01:51] Speaker 00:
The government then doubled down on this strategy to discredit Mr. Ward's defense in closing.

[00:01:56] Speaker 00:
This questioning and argument violated Mr. Ward's due process rights under Doyle v. Ohio and this court's subsequent decision in U.S.

[00:02:03] Speaker 00:
v. Canterbury because it was intended to address Mr. Ward's failures previously mentioned in his duress defense instead of addressing inconsistencies.

[00:02:12] Speaker 00:
And this isn't really a close question.

[00:02:14] Speaker 00:
The government cites only one moment of questioning, even bordering on an inconsistency, that Ward testified at trial that he shot first while his post-arrest statement suggested otherwise.

[00:02:25] Speaker 00:
but even setting aside the other Doyle errors that the government doesn't address in its brief.

[00:02:30] Speaker 00:
Government's questioning, if you read the transcript carefully from the trial, page 505 didn't even elicit Ward's prior statement that the victim shot first, just the fact that Mr. Ward shot.

[00:02:43] Speaker 00:
That's at page 505 of the record.

[00:02:47] Speaker 00:
And that question precedes three consecutive questions about what Ward never or didn't say about his duress.

[00:02:56] Speaker 00:
So it's not clear the government was even trying to address the inconsistency

[00:03:00] Speaker 00:
that it is now claiming on appeal that it was.

[00:03:04] Speaker 00:
And its subsequent questions precisely tracked what the Supreme Court found impermissible in Doyle.

[00:03:08] Speaker 00:
And this court found to have violated due process in Canterbury, Velarde, and Massey.

[00:03:14] Speaker 00:
Altogether, this sequence imparted that Ward had an opportunity to say something, but stayed silent.

[00:03:19] Speaker 00:
And it wasn't designed to ferret out the contradiction that Ward had already elicited on direct.

[00:03:24] Speaker 00:
On top of that, who shot first didn't even matter to Ward's duress.

[00:03:30] Speaker 00:
this court's decision in Canterbury teaches us that any contradiction must be inconsistent with the defense.

[00:03:37] Speaker 00:
So setting aside that improper questioning by the government at the beginning,

[00:03:42] Speaker 00:
The co-defendant then tagged in just a few transcript pages later and focused his questioning well on what Mr. Ward didn't say to police.

[00:03:53] Speaker 02:
What do we do with, why does that matter?

[00:03:55] Speaker 02:
I mean, and perhaps I'm missing something.

[00:03:57] Speaker 02:
Why does what his co-defendant did matter?

[00:04:01] Speaker 00:
Other circuits have so held that that still violates Doyle when a co-defendant, because we're talking about a defendant's due process, right?

[00:04:07] Speaker 00:
It doesn't matter whether the government or the co-defendant or who was the party that was questioning.

[00:04:12] Speaker 00:
All that is at issue in a Doyle violation is whether there's an impermissible inference that is being asked to be drawn by some party in the case.

[00:04:23] Speaker 00:
as to a defendant's exercise of his or her silence.

[00:04:27] Speaker 02:
And you say other circuits.

[00:04:28] Speaker 02:
We have not held that.

[00:04:30] Speaker 00:
This court has not expressly held it.

[00:04:32] Speaker 00:
We cite cases at page 40 of our opening brief, and the government doesn't dispute this point regarding a co-defendant potentially violating Doyle.

[00:04:41] Speaker 00:
But this court I think strongly suggested as much in its McClure decision saying such questioning at least lacks probative value.

[00:04:48] Speaker 00:
The proper way of addressing it is for a co-defendant to then take the stand and testify against the defendant, which of course didn't occur here.

[00:04:56] Speaker 00:
The code defendant then asks a sequence of questions about Mr. Ward not mentioning anything about the duress to this.

[00:05:05] Speaker 00:
And I won't quote them at length because they're quoted in the briefs.

[00:05:08] Speaker 00:
But then on top of that, finally, the government gets up in rebuttal and centers its rebuttal, which, of course, because it's in rebuttal, Mr. Ward has no opportunity to dispute at that point on Mr. Ward's prior silence.

[00:05:22] Speaker 00:
And that's something that the government hasn't even disputed on appeal that on its own can, under this court's cases, constitute a doilere.

[00:05:31] Speaker 02:
Let me ask you, let me go back on the, as it relates to the questioning of the government.

[00:05:40] Speaker 02:
Yes.

[00:05:40] Speaker 02:
There was an objection to that, right?

[00:05:42] Speaker 02:
There, there was no objection.

[00:05:44] Speaker 02:
There was no objection.

[00:05:45] Speaker 02:
And there was no objection to the questioning by the co-defendant either.

[00:05:50] Speaker 02:
Yes.

[00:05:50] Speaker 02:
Okay.

[00:05:51] Speaker 00:
Yes.

[00:05:52] Speaker 00:
And to the extent your honor is getting at whether this court should apply plain air review or not, that issue has now been waived because the government hasn't argued any of the relevant prongs, only that no error was made under this court's precedent.

[00:06:04] Speaker 00:
More is required under this court's decision in EGLI.

[00:06:08] Speaker 00:
We put an issue, we put in our opening brief, we argued at length, plain air.

[00:06:14] Speaker 00:
flagging the issue for the government's review.

[00:06:16] Speaker 00:
The government has not argued those prongs, thereby depriving us ultimately of an ability to actually address those prongs in reply.

[00:06:23] Speaker 02:
Well, I saw in the government's brief, well, I was going to speak to the government about that, but I mean, let's assume for the moment that the government did not respond to your plain error argument.

[00:06:33] Speaker 02:
that nevertheless, I mean, they mentioned plain error.

[00:06:36] Speaker 02:
I mean, they didn't and they said that there was no error.

[00:06:39] Speaker 02:
I mean, they acknowledged that you had raised that and so my point is simply that under plain error, you still bear the burden of showing there was error.

[00:06:50] Speaker 02:
Yes.

[00:06:51] Speaker 02:
Even if the government didn't contest the rest of that.

[00:06:53] Speaker 02:
Yes, absolutely.

[00:06:54] Speaker 00:
Absolutely.

[00:06:55] Speaker 00:
And just accepting for argument's sake that the issue isn't waived, this is clear error under settled law

[00:07:02] Speaker 00:
uh... that are excited uh... that you know under doyle under uh... you know the the prior consistent it's statement section in in anderson uh... as well as this court's uh... application uh... of uh... those precedents in mass people are in parts of the market particularly parts and was a plain air case

[00:07:21] Speaker 00:
involving just a singular line on rebuttal.

[00:07:26] Speaker 00:
Why didn't Mr. Barton tell police, I've got a gun here, there was a shooting, he had a chance when he was arrested, he didn't say anything, and this court found plain reversible error highlighting the importance of the Doyle right.

[00:07:36] Speaker 00:
And the prosecutors should well know that this is a constitutional violation and an infringement of the defendant's rights.

[00:07:45] Speaker 00:
And here, we have almost verbatim similar language to what was found reverse Valerian Barton.

[00:07:53] Speaker 00:
We have the government complaining that no details were provided about duress.

[00:08:00] Speaker 00:
And I'm quoting now, that was his chance.

[00:08:02] Speaker 00:
This guy's got me under a spell, not a word.

[00:08:05] Speaker 00:
That was his chance.

[00:08:06] Speaker 00:
Why not?

[00:08:07] Speaker 00:
He didn't say anything because it's not true.

[00:08:10] Speaker 00:
And then we have Mr. Ward's testimony two years later.

[00:08:12] Speaker 00:
And what is he testifying about?

[00:08:14] Speaker 00:
Duress.

[00:08:14] Speaker 00:
He's on trial.

[00:08:15] Speaker 00:
It's a brand new story for the first time.

[00:08:17] Speaker 00:
And it magically absolves him of criminal responsibility.

[00:08:20] Speaker 00:
This is a textbook Doyle violation.

[00:08:23] Speaker 00:
And this court should find plain reversible error under those precedents.

[00:08:29] Speaker 00:
If I may, unless the court has further questions on the Doyle error, just very briefly to touch upon the instructional error.

[00:08:38] Speaker 00:
So these unfair attacks on Mr. Ward's credibility as manfested by the Doyle heir were infinitely more powerful in this case because the court's erroneous instructions that Ward bore the burden of proving duress.

[00:08:52] Speaker 00:
It elevated the importance of his testimony.

[00:08:55] Speaker 00:
In Dixon, the Supreme Court held that a defendant usually bears the burden of proving duress, except where duress controverts an offense element such as the intent to injure or malice

[00:09:07] Speaker 00:
The government conceded as much in Dixon.

[00:09:10] Speaker 00:
I would encourage the court to review specifically pages 26 and 28 of the oral argument transcript in Dixon, as well as it's very clearly laid out in footnote four of the Dixon opinion that this was a concession that the Solicitor General made to secure the results in that case.

[00:09:26] Speaker 00:
This, it doesn't actually dispute that proposition really here either.

[00:09:31] Speaker 00:
It doesn't address this point about the intent, specific intent or motive being negated here.

[00:09:41] Speaker 00:
Three of the four counts, counts two through four, required a specific intent to injure.

[00:09:47] Speaker 00:
Yet the court's instructions failed to address that duress' element of gating nature.

[00:09:54] Speaker 02:
And that's contrary.

[00:09:55] Speaker 02:
Where in footnote four did the court speak so broadly in terms of any specific intent crime?

[00:10:02] Speaker 00:
in dixon i don't see that well that that's why i would encourage the court to review the oral argument transcript in dixon pages 26 to 28 because there was a prolonged colloquy between justice roberts and justice scalia and the solicitor general since when did the oral argument transcript become law well no i mean i asked you questions i asked you questions they don't mean a thing

[00:10:21] Speaker 00:
Absolutely, Your Honor.

[00:10:23] Speaker 00:
But I think the important point, understood, understood.

[00:10:27] Speaker 00:
And I'm not making the argument that it's somehow binding precedent because of that.

[00:10:31] Speaker 00:
Well, that was the implication of that argument.

[00:10:34] Speaker 03:
I don't care what the oral argument says.

[00:10:35] Speaker 00:
The government is a single sovereign, and it's expected to take consistent positions in cases, and that's the only reason I'm raising the point.

[00:10:41] Speaker 00:
But I do think, regardless of

[00:10:45] Speaker 00:
what the court specifically held in footnote four of Dixon.

[00:10:48] Speaker 00:
I mean it did speak to malice and specific intent in that footnote.

[00:10:53] Speaker 00:
This court has since modeled in its own instruction 1.36 noting that under Dixon the government has to disprove duress when the mains rare is sufficiently elevated.

[00:11:04] Speaker 00:
And this is

[00:11:06] Speaker 00:
that specific case.

[00:11:07] Speaker 02:
Well, our pattern jury instruction is not law either, right?

[00:11:11] Speaker 00:
Absolutely not, but it is the recommended instruction and that is the point that we raised with the court during the charge conference.

[00:11:18] Speaker 00:
I would also point out that the First Circuit in the United States versus Leahy did suggest that assaultative crimes were precisely what the Supreme Court was contemplating in Dixon footnote four.

[00:11:31] Speaker 00:
So a new trial is at least warranted on those counts, assuming again that the court doesn't agree with us on the Doyle issue.

[00:11:40] Speaker 00:
The court at least reversed on those three counts that required specific intent.

[00:11:45] Speaker 00:
The fourth count, which is actually count one, the 113A6 count, is what was actually disputed in the briefs.

[00:11:54] Speaker 00:
And that charged an assault.

[00:11:57] Speaker 00:
which the court specifically defined as a harmful or offensive touching without justification or excuse resulting in serious bodily injury.

[00:12:04] Speaker 00:
Dixon focused specifically on this without justification or excuse language in footnote four as a trigger that would require the government to bear the burden of proof regarding duress.

[00:12:17] Speaker 00:
So the government points to the Third Circuit's decision in Taylor as somehow defeating the argument.

[00:12:23] Speaker 00:
But Taylor was a self-defense case.

[00:12:25] Speaker 00:
not a duress case, and is concerned deleted language in subsection 8.3, not 8.6.

[00:12:30] Speaker 00:
And Taylor, I think, didn't actually really grapple with a lot of Dixon's language on this point.

[00:12:35] Speaker 00:
Dixon at page 14, for example, goes on to address an 8th Circuit case regarding a specific intent to defraud.

[00:12:41] Speaker 00:
There's a lot of analysis regarding specific intent in Dixon.

[00:12:47] Speaker 00:
I encourage the court to look at the whole decision.

[00:12:49] Speaker 00:
But we think the deletion of the

[00:12:53] Speaker 00:
The inclusion of that language necessitated a proper instruction regarding the burden of proof.

[00:13:00] Speaker 00:
At the very least, it was irretrievably confusing that the jury was simultaneously instructed that the government

[00:13:09] Speaker 00:
had to this element without justification or excuse had to be proven by the government, but then at the same time was instructed that Mr. Ward bore the burden as to duress.

[00:13:25] Speaker 00:
I see that I'm almost out of time.

[00:13:26] Speaker 00:
I may reserve my time for rebuttal.

[00:13:28] Speaker 00:
Thank you, Your Honours.

[00:13:45] Speaker 04:
My name is Benjamin Traster and I represent the United States.

[00:13:52] Speaker 04:
During the course of a week-long trial, the defendant, perhaps more so than his co-defendant Anthony Armenta, was given every opportunity and substantial latitude to present the case the way he wanted and with the witnesses that were available to him.

[00:14:08] Speaker 04:
He intended to introduce the affirmative defensive duress

[00:14:12] Speaker 04:
And he opened with it in the first few sentences of his opening statement.

[00:14:16] Speaker 04:
In fact, by the third paragraph and the ninth sentence, I think I calculated, he talked about he was there, he had a gun, and he fired twice.

[00:14:27] Speaker 04:
He testified and he sponsored testimony that he hoped would corroborate his defense duress.

[00:14:34] Speaker 04:
And the district court afforded him extraordinary latitude to do so.

[00:14:38] Speaker 04:
I would urge this court to look at and review the opinion in the companion case, United States versus Armenta.

[00:14:46] Speaker 04:
While that case spoke about Armenta and talked about different issues, issues of severance of the trial, what the court did in that case, what the court talked about in that case, in essence, was referred to the clear and direct testimony of the victims.

[00:15:03] Speaker 04:
And I'm citing this in large part because while

[00:15:07] Speaker 04:
the government would argue that there was no error with respect to the probable cause for the arrest, that there was no error with respect, there was no Doyle error, that there was no error with respect to the evidentiary issues, and we could touch on any or all of these, and that there was no error with respect to the duress instruction, and I'd actually like to come back to that because counsel just spoke of it.

[00:15:31] Speaker 04:
But the fact of the matter is what drove this case.

[00:15:33] Speaker 04:
was the fact that you had three victims who testified, testified in clear and direct testimony.

[00:15:41] Speaker 01:
And all of that testimony was fully consistent with the defendant's duress defense, correct?

[00:15:46] Speaker 04:
It was not.

[00:15:47] Speaker 01:
Well, why not?

[00:15:50] Speaker 01:
All they knew is that Ward shot at them.

[00:15:54] Speaker 01:
He doesn't question that.

[00:15:56] Speaker 01:
He's saying that he was ordered by Armenta to do this.

[00:16:02] Speaker 01:
I assume that the only two people on the planet that know whether or not that's true are Mr. Ward and Mr. Armenta.

[00:16:11] Speaker 01:
How would any of the three victims know what Mr. Armenta did or didn't do vis-à-vis Mr. Ward?

[00:16:21] Speaker 04:
There's a lot going back there.

[00:16:22] Speaker 04:
First of all, the duress defense is an objective standard.

[00:16:26] Speaker 04:
It has to be objectively reasonable, and it has to show that the fear was well-grounded.

[00:16:30] Speaker 04:
And of course, that raises a number of issues with respect to the evidentiary decisions, I believe, that the district court made.

[00:16:36] Speaker 04:
But the fact is, is that the defendant's testimony, and this actually now circles back to something counsel was arguing with respect to the Doyle era.

[00:16:45] Speaker 01:
Yeah, I was just asking about the three kids.

[00:16:47] Speaker 01:
I understand.

[00:16:48] Speaker 04:
but the fact of the matter is that the defendant's testimony lacked any credibility because he told multiple stories.

[00:16:54] Speaker 04:
It was impossible to understand what the defendant was trying to establish with respect to the duress defense when he talked about and spoke of

[00:17:03] Speaker 04:
If you look at his testimony, he talks about, first of all, in his interview with police, I believe he said, and this was brought out in his cross-examination, that the boys shot first, the three victims shot first.

[00:17:18] Speaker 04:
But then in his own testimony, he said he was up on rocks by the river bank, and while he's up on the rocks, he's drinking a beer,

[00:17:26] Speaker 04:
He's got a .45 in his hand, by the way.

[00:17:29] Speaker 04:
He hears and sees Armenta shooting, and he makes a comment saying something like, why is he effing shooting?

[00:17:36] Speaker 04:
So he goes down.

[00:17:37] Speaker 04:
The problem with that testimony is that nobody saw Armenta shoot first.

[00:17:42] Speaker 04:
All three of the victims said Ward came from behind after Armenta comes out from wherever.

[00:17:49] Speaker 04:
Armenta turns to the boys in the boat and points the gun at them.

[00:17:53] Speaker 04:
And word comes down and in effect jumps on the windshield and says, get the F out, get the F out, banging on the windshield.

[00:18:00] Speaker 04:
That is not the testimony of somebody who was under duress.

[00:18:03] Speaker 04:
That is objectively something that the jury can decide.

[00:18:06] Speaker 04:
Was that a man under duress when Armenta has his gun on the boys in the boat?

[00:18:11] Speaker 04:
And by the way, Cody Adams, another name that comes up, had just walked away.

[00:18:17] Speaker 04:
He had just walked away.

[00:18:18] Speaker 04:
He was under the rocks as well.

[00:18:20] Speaker 04:
He got up and left.

[00:18:21] Speaker 04:
And so the fact of the matter is this duress defense is something that the jury can evaluate, and it can be based on both the defendant's lack of credibility, his inconsistent statements, the multiple stories that he told during the course of the trial,

[00:18:35] Speaker 04:
and the victim's clear and direct testimony.

[00:18:39] Speaker 04:
I wanna come back to and talk a little bit about the duress instructions that counsel just ended with.

[00:18:46] Speaker 04:
And I wanna do it, I think the best way to explain what's going on with the duress instructions, Dixon, Taylor, is to talk about it frankly, just with some simple examples.

[00:18:57] Speaker 04:
Take somebody who's got a gun and he was legitimately under arrest.

[00:19:01] Speaker 04:
Pointing that gun at somebody and they say,

[00:19:03] Speaker 04:
I don't really want to do this.

[00:19:06] Speaker 04:
I don't want to be doing this.

[00:19:07] Speaker 04:
But you know what?

[00:19:08] Speaker 04:
He's got that gun to me.

[00:19:10] Speaker 04:
I've got that gun on that other person.

[00:19:12] Speaker 04:
It's an assault because he's got the gun pointed.

[00:19:14] Speaker 04:
It's assault with a dangerous weapon.

[00:19:17] Speaker 04:
And his intent when he shoots is to do bodily harm.

[00:19:20] Speaker 04:
There's no question.

[00:19:21] Speaker 04:
His specific intent.

[00:19:22] Speaker 04:
But he doesn't want to do it.

[00:19:24] Speaker 04:
His mens rea is that.

[00:19:27] Speaker 01:
Is it an excuse?

[00:19:28] Speaker 04:
The duress would actually be an excuse in that case.

[00:19:32] Speaker 04:
And the fact of the matter is that is why, and we argue this, that is why the burden then shifts to the defendant in fact.

[00:19:38] Speaker 01:
Well, but your co-counsel pointed out that in jury instruction number 30, the judge disagreed with you.

[00:19:46] Speaker 01:
The judge instructed the jury that the jury had to find that the government had the burden of proving assault for all of the four counts.

[00:19:56] Speaker 01:
And he specifically elucidated the definition of assault with the

[00:20:02] Speaker 01:
the prepositional phrase without justification or excuse.

[00:20:07] Speaker 01:
So the judge apparently thought, contrary to you, that it was your burden to prove the lack of an excuse that I think you just acknowledged that duress would be an excuse.

[00:20:19] Speaker 04:
I don't recall that, but... Instruction number 30?

[00:20:23] Speaker 04:
Yes, I don't recall that.

[00:20:25] Speaker 04:
But let me, if I can continue with my example and I want to... Okay.

[00:20:29] Speaker 04:
Council talked about footnote four in the Dixon case.

[00:20:32] Speaker 04:
One thing to look at in footnote four in the Dixon case is that it actually refers to a treatise and talks about when you have a heightened mens rea where the burden is on the government to disprove duress, that burden would be something like the treatise cites maliciously without justification or excuse.

[00:20:50] Speaker 04:
So first of all, I do believe that the Taylor case is relevant to say the elements of assault with a dangerous weapon with intent to do bodily harm, 113A3, do not include without justification.

[00:21:02] Speaker 01:
Even though Taylor did not involve a crime that involves the element of the lack of justification or excuse, right?

[00:21:13] Speaker 04:
Well, I think it does and I can explain why.

[00:21:16] Speaker 01:
Well, that was part of the removal of A3.

[00:21:19] Speaker 01:
Correct.

[00:21:20] Speaker 01:
All right.

[00:21:20] Speaker 04:
If you go back and you look at, and now we're not looking at an assault, we're looking at a murder, and you're looking at malice of forethought.

[00:21:27] Speaker 04:
Malice of forethought requires intentional and deliberate killing, or wanton and reckless disregard of human life.

[00:21:38] Speaker 04:
So at that point, there is no way for somebody to say, I don't want to do this.

[00:21:42] Speaker 04:
I really don't want to do this, but I'm going to do it because I'm being forced.

[00:21:45] Speaker 04:
When you have that kind of intentional, deliberate, wanton and dis-wanton and callous disregard for human life.

[00:21:52] Speaker 04:
And if the government has to prove that, a duress defense necessarily negates that element of the offense.

[00:22:01] Speaker 04:
The government comes in, if the government can prove malice a forethought, the government has proved beyond a reasonable doubt that it wasn't duress.

[00:22:10] Speaker 04:
So at that point, if a court were to

[00:22:12] Speaker 04:
order, or sorry, instruct the jury that the burden had shifted.

[00:22:16] Speaker 04:
That would be error because it would make no sense.

[00:22:18] Speaker 04:
The government has already proved beyond reasonable doubt.

[00:22:21] Speaker 02:
So are you saying there would be no basis for a duress defense if you carried your burden on an offense that involved malice?

[00:22:28] Speaker 04:
No, absolutely not.

[00:22:29] Speaker 04:
But the defense can bring up that defense.

[00:22:31] Speaker 04:
The defense still has to introduce that defense.

[00:22:33] Speaker 04:
What I'm saying is that the Dixon case where it contemplates that the burden would not shift

[00:22:39] Speaker 04:
It's that type of case where the defendant says, I was under duress and the government still has to prove where there's malice aforethought.

[00:22:46] Speaker 04:
What the consequence, the upshot would be, that it's either the government has proved malice aforethought or the government hasn't proved malice aforethought.

[00:22:55] Speaker 04:
What I'm suggesting is if the government has proved its murder case with malice aforethought,

[00:22:59] Speaker 04:
beyond a reasonable doubt, there would be no way for a defendant to show that they were under duress because of that extra.

[00:23:07] Speaker 02:
And therefore the burden would not shift and you're saying that's not this case.

[00:23:10] Speaker 02:
That's exactly right.

[00:23:11] Speaker 02:
That is not this case.

[00:23:12] Speaker 02:
Well then let's talk about the Doyle error which we've not talked about or the alleged Doyle error.

[00:23:18] Speaker 02:
It helped me to understand why

[00:23:21] Speaker 02:
the defendant is not right, particularly when Barden, as the defendant points out, had one line.

[00:23:27] Speaker 02:
There are multiple lines in this case, and beyond that, so that's the first part.

[00:23:32] Speaker 02:
The second part is, my reading of your brief did not engage

[00:23:38] Speaker 02:
with the plain error argument at all.

[00:23:40] Speaker 02:
You just said there's no error.

[00:23:41] Speaker 02:
So I take it that if we were to find there's error, you're done on the plain error argument, right?

[00:23:47] Speaker 04:
I would apologize to the court.

[00:23:49] Speaker 04:
Unfortunately, there were a lot of issues.

[00:23:51] Speaker 04:
This is not a great excuse.

[00:23:52] Speaker 04:
There were a lot of issues in this brief and the government should have argued that further.

[00:23:56] Speaker 04:
I would argue, at the very least, that there was no error.

[00:24:00] Speaker 04:
And certainly, given that the Toro Pelayas case and the May case, which came after Canterbury, Vilarde, Massey, that those cases talk of circumstances that are a little bit still unlike this case.

[00:24:17] Speaker 04:
that those cases still said there was no doyal error and they were judged on plain error.

[00:24:21] Speaker 04:
They said there was no, first of all, there was no error.

[00:24:24] Speaker 04:
But there also was no plain error because now you have a line of cases that talk about what the case law is in this circuit.

[00:24:32] Speaker 02:
Well, irrespective of the reasons that your brief is what it is, your brief is what it is.

[00:24:36] Speaker 02:
So it seems to me we're stuck with error.

[00:24:38] Speaker 02:
Is there error or not?

[00:24:40] Speaker 02:
Would you agree with that?

[00:24:41] Speaker 04:
There is not error.

[00:24:42] Speaker 02:
Okay, and explain why there is not error.

[00:24:44] Speaker 04:
Well, in the first place, he never invoked his right to remain silent.

[00:24:47] Speaker 01:
Yeah, that was true in Canterbury also.

[00:24:50] Speaker 01:
I'm sorry?

[00:24:50] Speaker 01:
That was true, was it not, in Canterbury?

[00:24:53] Speaker 04:
Canterbury also had no inconsistent statements.

[00:24:56] Speaker 04:
And I want to point out two things with respect to that.

[00:24:59] Speaker 01:
I just don't understand how that answer is responsive.

[00:25:03] Speaker 01:
I assume that what your argument is, there's no doil air here because he didn't invoke his right to remain silent, nor did Mr. Canterbury.

[00:25:13] Speaker 01:
He spoke.

[00:25:14] Speaker 01:
The problem in Canterbury, I think the panel concluded, was that he was questioned about why he never in his voluntary interview had mentioned that he had an entrapment offense.

[00:25:28] Speaker 01:
He had been entrapped, just like the argument here that

[00:25:35] Speaker 01:
that your counterpart, I assume, in rebuttal argument said, why did he never mention the fact that he was under duress, that Armenta forced him to do it?

[00:25:45] Speaker 01:
How is that different from Canterbury?

[00:25:49] Speaker 04:
It's very different.

[00:25:50] Speaker 04:
Canterbury involved three questions, and they were not inconsistent with anything else that he testified to when he came to trial.

[00:25:57] Speaker 04:
In our case, the defendant spoke for 20 minutes after he waved his Miranda rights, and that is in the record.

[00:26:03] Speaker 04:
On page 53, 55 of volume 1, 63 of volume 1, even in the motion to suppress, one of the law enforcement officers said, I believe,

[00:26:13] Speaker 04:
Detective Black read him his rights.

[00:26:16] Speaker 02:
Well, that's the predicate for Doyle era.

[00:26:18] Speaker 02:
I mean, we wouldn't be talking about Doyle era if he didn't get his Miranda rights.

[00:26:21] Speaker 02:
So what does that tell us?

[00:26:22] Speaker 02:
He waived them, and he spoke freely.

[00:26:24] Speaker 04:
OK.

[00:26:24] Speaker 04:
So then we go on, and Judge Baccarb, to continue with your question.

[00:26:28] Speaker 04:
Then we go on to what actually happened at trial.

[00:26:30] Speaker 04:
So we can start with closing argument.

[00:26:32] Speaker 04:
At closing argument, the government talked about talking about three different stories the defendant told.

[00:26:37] Speaker 04:
And then goes on to talk about, and now we're hearing about duress for the first time.

[00:26:41] Speaker 04:
And what counsel left out

[00:26:43] Speaker 04:
of the passage in the record is the first words out of the government's mouth after he says, this came up anew is, it lacks credibility.

[00:26:52] Speaker 01:
In counsel's... Yeah, it lacks credibility because he never said it, which is exactly what the government's argument was in Canterbury, that the entrapment defense lacked credibility because he had never mentioned it.

[00:27:02] Speaker 04:
It lacks credibility because he's told so many stories at this point.

[00:27:05] Speaker 04:
It's not like Canterbury.

[00:27:06] Speaker 04:
Canterbury, the court specifically said that what the issue is in Canterbury is his testimony at trial was not inconsistent with what he said after he had spoken, after that partial silence.

[00:27:18] Speaker 04:
This is totally different.

[00:27:20] Speaker 04:
He came into court and his statements were entirely inconsistent with anything he had said before.

[00:27:25] Speaker 04:
He said the boys shot first, in court he said Armenta shot first.

[00:27:29] Speaker 04:
Then he takes the stand and he continues later and says, did the boys shoot first on direct examination?

[00:27:35] Speaker 04:
He says, I don't know.

[00:27:36] Speaker 04:
I don't know.

[00:27:37] Speaker 04:
He couldn't get a story straight.

[00:27:39] Speaker 04:
And so he's sticking to this arrest story and you are entitled to ask him about that.

[00:27:42] Speaker 04:
And I, I would point out, council talks about cross-examination.

[00:27:46] Speaker 02:
Just, just bear with me for a second.

[00:27:47] Speaker 02:
I'm sorry, I'm, I'm racing.

[00:27:48] Speaker 02:
That's okay.

[00:27:49] Speaker 02:
No, just bear with me for a second.

[00:27:51] Speaker 02:
Let's, let's assume on this that who shot first business and I, and I had identified what seemed to be a few inconsistencies and you alluded to one.

[00:28:02] Speaker 02:
Even if that is, let's go with the premise that's true, okay?

[00:28:06] Speaker 02:
Who shot first, that kind of thing.

[00:28:09] Speaker 02:
The Canterbury would allow you to impeach about that.

[00:28:14] Speaker 02:
That is an inconsistent statement.

[00:28:16] Speaker 02:
How does that open the door to speak about the fact that this is the first time we've heard this defense of duress?

[00:28:26] Speaker 02:
it seems to be those are two different things.

[00:28:29] Speaker 04:
I would encourage the court to look at the paragraphs before those two paragraphs that the council references and to look at what's after it all goes to the defendant's credibility.

[00:28:40] Speaker 04:
It does not go to an inference that his right to silence

[00:28:44] Speaker 02:
I don't think Doyle talks about intent of the prosecutor.

[00:28:49] Speaker 02:
It doesn't matter why you did it, it matters that you did it.

[00:28:52] Speaker 04:
That may be true, but the point is that what the government did was the government was, it's not about intent, it's about what the government was questioning was these

[00:29:00] Speaker 04:
statements that lack credibility and pointing out the defendant's credibility, not guilt because he was silent.

[00:29:07] Speaker 02:
When is Doyle not about credibility?

[00:29:10] Speaker 02:
In most instances, what you have is the template of the government saying that person is not credible because they're making it up.

[00:29:19] Speaker 02:
They're making it up now.

[00:29:21] Speaker 02:
Why is this no different than that?

[00:29:23] Speaker 04:
I see my time has expired.

[00:29:24] Speaker 04:
You can talk to me.

[00:29:26] Speaker 04:
I just want to make sure I don't

[00:29:29] Speaker 04:
The difference is, I would ask the court to take a look, and I can't remember, right?

[00:29:33] Speaker 04:
I think it's the Massey case, maybe, I think it's the Massey case.

[00:29:39] Speaker 04:
And in the Massey case, and maybe another one that's cited, there's a number of questions where there's questions by the government saying, you had an opportunity to sit down with the government here, and you had an opportunity when you were proper for the magistrate.

[00:29:53] Speaker 04:
And you had an opportunity when you were brought before the judge.

[00:29:55] Speaker 04:
And you had an opportunity when you did this.

[00:29:57] Speaker 04:
And after all this time, not talking at all about his credibility.

[00:30:01] Speaker 04:
It's not about his credibility.

[00:30:02] Speaker 04:
It's just you were silent.

[00:30:05] Speaker 04:
And because you were silent,

[00:30:06] Speaker 04:
That automatically means you're guilty.

[00:30:08] Speaker 04:
And that is simply not what happened in this case.

[00:30:11] Speaker 04:
It's just not what happened in this case.

[00:30:13] Speaker 04:
So there was no error.

[00:30:15] Speaker 04:
On the basis of Toro Palayas, on the basis of May, these are cases that are very similar.

[00:30:22] Speaker 04:
That are very similar to what happened.

[00:30:23] Speaker 04:
They don't find error.

[00:30:25] Speaker 04:
They, they do go on and, and do more of the plain error analysis, but they don't find error on the basis of, of what happened.

[00:30:32] Speaker 04:
Seeing my time is way over, I, I appreciate the questions.

[00:30:35] Speaker 02:
That's fine.

[00:30:35] Speaker 04:
Thank you, counsel.

[00:30:36] Speaker 04:
Could I maybe just inquire the court, and I'm sorry, I realize this is unusual.

[00:30:39] Speaker 04:
I do believe the government's brief is still under seal.

[00:30:41] Speaker 04:
I don't know if the court wanted to hear anything on that.

[00:30:45] Speaker 04:
I, I know that we have papers that we have filed.

[00:30:48] Speaker 04:
I would, I would just reiterate a request that

[00:30:50] Speaker 04:
that we made in our response to the defendant's motion to strike that our brief be unsealed.

[00:30:58] Speaker 02:
Be unsealed?

[00:30:59] Speaker 04:
Be unsealed.

[00:30:59] Speaker 02:
Okay.

[00:31:00] Speaker 04:
Thank you.

[00:31:03] Speaker 02:
Let's, let's take that issue up first.

[00:31:07] Speaker 02:
What, what, on the ceiling issue, what do you have to say about that?

[00:31:10] Speaker 00:
All right, so that depends entirely on how the court resolves the motion to strike and whether or not the volume four pleadings should remain under seal.

[00:31:20] Speaker 00:
That, you know, I, I, I don't want to reference to the specific ceiling materials.

[00:31:24] Speaker 00:
Yes.

[00:31:24] Speaker 00:
But there is extensive briefing on that issue that relates to the instructional layer and the argument that the government was making.

[00:31:30] Speaker 00:
with regard to the, the peculiar knowledge that we had of, of in our, stated in our trial memorandum of our defense.

[00:31:41] Speaker 02:
And, and, and I, I understand the delicacy, but what would be the condition precedent for us making a determination as to whether to, to unseal or not?

[00:31:50] Speaker 02:
I mean, what, what is the, what is the decision you think we have to make?

[00:31:54] Speaker 00:
Yes, so I believe that the question is whether or not the confidential materials that were referred to in the government's brief openly because they were filed to the co-defendants record.

[00:32:10] Speaker 00:
whether those arguments are proper and whether or not, I guess, a limited portion of their brief should remain redacted because it discusses the substance of what was in those confidential materials.

[00:32:20] Speaker 01:
Okay.

[00:32:20] Speaker 01:
I don't want to take up too much time on this because it's non-substantive, but as I understand the briefing on the motion to strike, it was only that one sentence on page 48, right?

[00:32:32] Speaker 00:
That's correct.

[00:32:32] Speaker 01:
So the only question, if I'm right in thinking that the only question for us is whether or not

[00:32:39] Speaker 01:
to strike or redact that one sentence on page 48?

[00:32:46] Speaker 00:
That's correct.

[00:32:47] Speaker 00:
It's limited to that exact point, that specific argument.

[00:32:49] Speaker 00:
Okay.

[00:32:49] Speaker 00:
That's it.

[00:32:50] Speaker 00:
The rest of the, we have no objection to the un-COA, the rest of it.

[00:32:53] Speaker 00:
Okay.

[00:32:53] Speaker 00:
So if your honor wouldn't do it, I see that I'm almost out of time, just to address a couple of points.

[00:32:58] Speaker 02:
Could you add back a minute 30, so that we'll end up with a minute 35, and then you... Thank you, your honor.

[00:33:09] Speaker 00:
So regarding Doyle, so if the court wishes to belatedly entertain Plain Air review, it should at least afford us an opportunity for supplemental briefing on that issue.

[00:33:20] Speaker 00:
But setting that aside, regarding Plain Air, the implication argument that the government makes, that an implication is required to exercise Doyle rights, that argument has also been waived.

[00:33:33] Speaker 00:
was presented only in a point heading in the brief, and we address extensively in our reply.

[00:33:38] Speaker 00:
I won't go into the details why that's wrong.

[00:33:40] Speaker 00:
It involves a different right, ultimately, that's the Fifth Amendment right versus the due process right that is at issue with regard to Doyle Air, fundamentally.

[00:33:50] Speaker 00:
So regarding Canterbury and

[00:33:54] Speaker 00:
both of those cases began with addressing inconsistencies.

[00:34:01] Speaker 00:
So in Canterbury, I think this is really important, there was a prior question

[00:34:07] Speaker 00:
about a contradiction between Mr. Canterbury's statement and testimony regarding his buying a silencer for protection.

[00:34:13] Speaker 00:
In other words, a disparity.

[00:34:15] Speaker 00:
That's how the cross-examination began.

[00:34:16] Speaker 00:
And then it went into details about the defendant's silence.

[00:34:20] Speaker 00:
And this court, nonetheless, despite that inconsistency, still parsed out separately the Doyle error and Fountain Doyle error.

[00:34:27] Speaker 00:
And it did the exact same thing in Volarde, too.

[00:34:29] Speaker 00:
So regarding Toro, Pales, and May, those cases, unlike this case, did involve actual factual inconsistencies that went to the heart of the defense.

[00:34:40] Speaker 00:
Specifically in Anderson, the defendant told the police he stole the car from a certain neighborhood, but testified at trial that he stole the car from another location.

[00:34:47] Speaker 00:
And the prosecutor asked, why didn't he tell the same story?

[00:34:50] Speaker 00:
Whereas here, the questions that are being asked are specifically about silence.

[00:34:58] Speaker 00:
The alleged clear and direct testimony of the victims, I just would like to finally point out, to the extent that goes to prong three of the plain air analysis regarding Doyle, Mr. Ward can easily show a reasonable probability of a different outcome.

[00:35:14] Speaker 00:
It's a lower standard than a preponderance.

[00:35:17] Speaker 00:
The bullets and the shell casings tracked Mr. Ward's testimony.

[00:35:20] Speaker 00:
The complainant's testimony was, in many respects, consistent with Mr. Ward's testimony.

[00:35:27] Speaker 00:
I think the clock's going up now.

[00:35:29] Speaker 00:
Thank you, Your Honor.

[00:35:30] Speaker 02:
Appreciate your time.

[00:35:32] Speaker 02:
Thank you, Council, for very fine arguments, cases submitted, and we are in recess.