[00:00:00] Speaker 04:
is United States versus Lynn, 25-5027.

[00:00:08] Speaker 02:
May it please the Court, Your Honor. My name is Michael Burke, and I am appearing on behalf of Mr. Cameron Lin, who is appealing his conviction from the Northern District of Oklahoma. Yes, sir. Who is appealing his conviction from the Northern District of Oklahoma on one count of murder and two counts of assault on Indian land and one count of misconduct involving weapons.

[00:00:32] Speaker 02:
The...

[00:00:34] Speaker 02:
In this appeal, Mr. Lin is raising three challenges. The first is to the admission of a document known as Exhibit 59, which was the government's exhibit at trial.

[00:00:48] Speaker 02:
And we are challenging that on grounds of federal rules of evidence. And then we are also challenging two instructions that were given to the jury, one on self-defense and the other on imperfect self-defense.

[00:01:04] Speaker 02:
The other is on imperfect self-defense.

[00:01:09] Speaker 04:
Can I just make sure, I'm not trying to mess up your sequence, but on your first issue, I thought your argument was about particular contents in Exhibit 59, the reference to the 1991 issuance of the CBID card, not the entirety of Exhibit 59. Am I wrong about that?

[00:01:26] Speaker 02:
No.

[00:01:27] Speaker 02:
Yes, Your Honor, that is not what we are arguing. Okay. Yes, our challenge is to the admission of Exhibit 59 as a record of regularly recorded activity.

[00:01:40] Speaker 04:
The entirety.

[00:01:41] Speaker 02:
The entirety of the document, because that's all that we have. Okay. I mean, that is the sole basis for it.

[00:01:48] Speaker 03:
We also have his brother that said they were in there.

[00:01:52] Speaker 02:
Your Honor, his brother did say when they were children that they had CDIB cards.

[00:02:02] Speaker 02:
However, as this court recently noted in Hartley, the question is whether my client was a member of the Choctaw tribe or an Indian citizen. at the time of the crime. And people can be disenrolled from a tribe. It is the government's burden to prove beyond a reasonable doubt that Mr. Lin was a member of, was an Indian.

[00:02:30] Speaker 03:
You can see that he was back at the time of the entry on the document?

[00:02:35] Speaker 02:
I can't concede that. I can concede that his brother testified to that. I do not know whether it's true or not. I know that there is evidence of that fact.

[00:02:44] Speaker 03:
Doesn't this exhibit reflect that this fellow is on the exhibit?

[00:02:50] Speaker 03:
Therefore, he's an Indian?

[00:02:52] Speaker 02:
Exhibit 59 is... It's a sheet, it's a page. It's a page, exactly. It's a page of what? It is a page of a screenshot of the Choctaw Nation's enrollment.

[00:03:06] Speaker 03:
Okay, and you're saying that maybe he dropped out subsequent to when that page was written?

[00:03:13] Speaker 02:
Well, what I'm saying, Your Honor... I want to know what your position is. Yes, what I am saying is that the district court aired in admitting that document. So that document was not something that could properly be considered.

[00:03:27] Speaker 03:
Was it a business record? Was it introduced as a business record?

[00:03:29] Speaker 02:
Yes. All right. Yes. And our argument is that it does not satisfy the requirements.

[00:03:35] Speaker 03:
What doesn't it satisfy?

[00:03:37] Speaker 02:
Well, to begin with federal rule 8036, which is the exception for business records requires first that the, um, The record itself, so we're talking about 59, Exhibit 59. So if they brought in the entire book, you wouldn't have a problem?

[00:04:02] Speaker 02:
If they brought in the entire file, I...

[00:04:04] Speaker 02:
have to say I don't think we would because from the book isn't it a book from what I understand from the testimony they called Erica Tomlinson who was a supervisor with their enrollment department and she said that they keep the hard copies in their vault.

[00:04:23] Speaker 02:
Those hard copies would include two documents that I submit could have proven very easily the government's burden of showing that Mr. Lin was an Indian. One was the Certificate Degree of Indian Blood.

[00:04:39] Speaker 02:
It's called a Certificate Degree of Indian Blood, a CDIB.

[00:04:45] Speaker 02:
They are also such things as CDIB cards that individuals can carry with them to prove that they are members of the tribe. A CDIB is a self-authenticating document. It has a seal of the United States on it. So that would have been admissible. And that could have a step- It would have been in the defendant's possession.

[00:05:08] Speaker 03:
I'm sorry, I didn't- That would have been in the defendant's possession.

[00:05:14] Speaker 02:
It would have been in the prosecution. It would have been in the Choctaw Nation's possession. They would have had the CDIB. They keep the card? Well, the card might be it. It might not be the same thing. The department of motor vehicles might have a record that I am allowed to drive. I also might have a driver's license so that I can show that to people to prove that. But here, they didn't present the CDIB, even though the testimony is that they kept these hard copies in their vault.

[00:05:48] Speaker 02:
They also need to prove that he's recognized as a member of a tribe.

[00:05:54] Speaker 02:
That was what the purpose of Rule 59 was, to make both of those comments. But the problem was, those comments within Rule 59 were hearsay.

[00:06:05] Speaker 02:
There were statements that were offered for the truth of the matter that they had asserted. What's the business record?

[00:06:13] Speaker 03:
Isn't that an exception?

[00:06:15] Speaker 02:
Exactly, Your Honor, but our position is that the government failed to meet the standard for admitting a business record under 8036.

[00:06:25] Speaker 01:
Isn't that the core of this appeal?

[00:06:29] Speaker 01:
Isn't this a case really, a rule, an interpretation of the meaning of the business exception to a hearsay rule?

[00:06:40] Speaker 02:
I don't disagree with that, Your Honor. Yes, it's a question about the interpretation of Rule 8036. Right.

[00:06:46] Speaker 01:
Okay.

[00:06:49] Speaker 02:
And...

[00:06:51] Speaker 02:
One of the requirements to get a document in as a business record is that the information recorded in that record must have been recorded at or near the time of the event that it states. And here, the record which was a screenshot, which we know was created for purposes of this trial. But it was a screenshot of a search of the database of the Choctaw Nation.

[00:07:25] Speaker 02:
Did it find the defendant in that screenshot?

[00:07:29] Speaker 02:
Yes, this is just that screenshot of Choctaw. of presumably.

[00:07:34] Speaker 03:
And did it say when it was written?

[00:07:37] Speaker 02:
The document does not say when it was written. It's an ongoing online screen.

[00:07:44] Speaker 03:
They don't put any dates in?

[00:07:46] Speaker 02:
There were dates and those dates were, one of the dates was that he got his CDIB in February 1991.

[00:07:58] Speaker 03:
30 years before... So is it your position that if he tore up his CSID card, threw it away, that this un-Indians him?

[00:08:09] Speaker 02:
Not at all, Your Honor, no.

[00:08:12] Speaker 02:
Our argument is that an element of the crime with which my client was convicted is that he is an Indian. The government must prove that beyond a reasonable doubt.

[00:08:24] Speaker 03:
My claim is, I'm sorry, I interrupted you.

[00:08:30] Speaker 04:
Can I ask you a question about harmlessness?

[00:08:33] Speaker 04:
So let's put aside exhibit 59. So as I understand it, Jason says that, yeah, when I was a kid, he is a member of the Choctaw Nation.

[00:08:45] Speaker 04:
He has a CBID. My brother does have a CBID card. I've seen it. Ms. Tomlinson says, apart from her extensive testimony, not extensive, Zimba 59, says that you only get a CBID card if you have Indian blood, and those are obviously an apprentice, the two requirements for under 1153 to be a member of a federally recognized Native American tribe.

[00:09:15] Speaker 04:
And so you're saying, and I don't remember seeing this in district court, I don't remember seeing it in the briefs, that, well, he may have been disenrolled, you know, Proving – disproving a negative is quite difficult. How – based on what the evidence was, aside from Exhibit 59, how could a jury have reasonably concluded that the government didn't prove beyond a reasonable doubt that he was – that he satisfied both requirements under Prentice because – based on Jason's testimony – that he was a Choctaw Nation member, and that he'd get a CBID card, and Ms.

[00:09:51] Speaker 04:
Tomlinson's testimony that that's the only way to get a CBID card is if you have at least some medium blood. What would the jury have said back in the deliberation room to say, I acquit?

[00:10:02] Speaker 02:
Just to clarify, if the Exhibit 59 had not been admitted, they would have said, the only thing that we heard is from his brother that when they were children, he had a CDIB card. He, the brother, or he, the defendant? He said they both had them, Your Honor. Yes, that they both had them.

[00:10:24] Speaker 02:
That would have been the only evidence that they could have relied on to find beyond a reasonable doubt that my client had a quantum of Indian blood and was recognized by a tribe.

[00:10:37] Speaker 04:
Seems pretty good.

[00:10:39] Speaker 04:
Well... I mean, would a jury have said, well, you know...

[00:10:43] Speaker 04:
He may have been disenrolled. You know, that was just a kid. And, you know, I've heard, you know, my aunt told me a story of a story of a story of somebody that was disenrolled. Well, isn't that a violation of the judge's instructions, presumably, not to rely on, you know, you're confined to the evidence that's presented in the courtroom. And, you know, it seems, I don't know. I just have, I struggle with, it's just a little part in the trial, but I don't know what would have happened. counter countered it what it would have counted jason's testimony and ms thompson's that's that's how you get a cbid card well we are challenging the fact i mean that that was she testified that that's how you get a cbid card is if you have indian blood that is totally independent i understand i understand that's my question yes um

[00:11:34] Speaker 02:
May I first challenge the hypothetical before I answer it? You can do anything you want. Okay.

[00:11:39] Speaker 02:
It doesn't matter for purposes of this appeal. Okay. Because the question is, was it an error for the jury to be given this information in Exhibit 59? We can't undo that, right? So the question under the analysis under the Kodiakas standard is, did the error affect the jury?

[00:12:00] Speaker 03:
Was there an error?

[00:12:04] Speaker 02:
That is our argument is that there was.

[00:12:06] Speaker 03:
And I want you to tell me why it was error.

[00:12:08] Speaker 02:
Because the document that was submitted at Exhibit 59 did not meet the standard for a business record, which requires that the information in that document be entered at or near the time of the information it accounts, it records.

[00:12:26] Speaker 03:
Well, the witness testified. They filled it out. They did that error. on everybody as they did it across the board.

[00:12:33] Speaker 02:
But it was a screenshot that had dates that are over 30 years old.

[00:12:38] Speaker 02:
She could not testify who entered the documents.

[00:12:41] Speaker 03:
There's a good faith situation here, too. You have to make a good faith argument that this screenshot was error and that error was not cured by the brother. And I don't see that you're even trying to do that. I mean, what do you want the government to do? The chief of the tribe?

[00:13:03] Speaker 02:
No, Your Honor. Ms. Tomlinson, their custodian of records, could have brought to court the actual CDIB that the tribe has in its vault.

[00:13:16] Speaker 03:
Well, do you have a position that the screenshot was monkeyed with and that it was not a true and correct representation of what it purported to be?

[00:13:27] Speaker 02:
Your Honor, I have no evidence that it was monkeyed with, but during cross-examination, the government's witness said she had no way of knowing. I mean, she said there would have been some security, but she couldn't say. And so the government has to satisfy.

[00:13:44] Speaker 03:
Even if they brought in the original record and she said, I can't tell you whether that's really true or not.

[00:13:51] Speaker 03:
You'd be in the same exact position.

[00:13:53] Speaker 02:
Absolutely not, Your Honor. The original record would be self-authenticating. It would stand for itself. It would not need any authentication. And the government has it. The Choctaw Nation has it and could have brought it to court, and they did not. Instead, they relied on...

[00:14:11] Speaker 02:
they relied on a screenshot that does not meet the requirement of 803.6. And Your Honor, I wanted to mention one other thing about your question about the brothers' testimony. Recently and happily, this court, in reversing a conviction for failure to prove Indian status, said it was not even enough that the defendant himself testified at a prior time that he had been a member of the tribe.

[00:14:42] Speaker 02:
That was not sufficient. And certainly, Mr. Jason Lin's testimony about something that may have occurred 20 years previously is not sufficient standing alone, even if that were the standard this court needed to arrive.

[00:14:56] Speaker 03:
Well, even if she brought in the original record, it wouldn't make any difference to you because it was still 20 years old.

[00:15:03] Speaker 03:
And she couldn't say who wrote the entries.

[00:15:08] Speaker 02:
I disagree. Your Honor, I'm about out of time. If I could answer that question again.

[00:15:11] Speaker 04:
You can certainly answer this question.

[00:15:13] Speaker 02:
I disagree because if she brought the original record with her, There would have been nothing for us to challenge. It is, under 902 of the Federal Rules of Evidence, a self-authenticating document. The Rules of Evidence say it is what it is, but they did not do that. So we would ask the court to reverse the convictions in this case and remand for a new trial.

[00:15:39] Speaker 04:
Before you sit down, I believe my colleague Judge Abel has a question for you.

[00:15:44] Speaker 01:
I was concerned about the contemporaneous entry into the record.

[00:15:50] Speaker 01:
As I understand it, contemporaneously entered into the record refers to the interval of time between when the enterer or, that is the scrivener, got the information and put it into the record. It does not refer to the the underlying data when it occurred. I mean, had it been the Earth was created four billion years ago, I've just discovered that and I'm entering it right now, that would meet a business test contemporaneous requirement.

[00:16:22] Speaker 01:
It dates to when the Scribner got the information and then put it in the record, not from the date being reported and when it was entered into the record.

[00:16:33] Speaker 02:
Absolutely, Your Honor, but the problem here is that Ms. Tomlinson, the government's custodian, could not tell. She did not know.

[00:16:43] Speaker 01:
I understand all the rest of the argument. I just wanted to make that one point. Yes. Make sure I understood your point on that. Yes.

[00:16:49] Speaker 00:
Thank you.

[00:16:49] Speaker 01:
Thank you. Thank you.

[00:16:52] Speaker 00:
May it please the Court, Stephen Bryden on behalf of the United States.

[00:16:57] Speaker 00:
I ask you to uphold the jury's verdict and uphold Mr. Lin's conviction for murder and assault because the Indian document that was submitted to the court was admissible under the business records exception. It was not an admissible hearsay. And the self-defense instructions that were given to the jury did not mislead them. And even if they did, any error was harmless due to the overwhelming nature of the evidence against Mr. Lin.

[00:17:23] Speaker 04:
I don't, I don't want to mess up your sequence, but, uh, but when you say that there was no error in the instruction, um, and you can disregard my question, if you don't want to talk about that issue, but I had a question, didn't that squarely contradict Mary boy.

[00:17:40] Speaker 00:
So there are distinctions between this case and Mary boy that are important. Your honor. Um, first in Mary boy, the imperfect self-defense instruction, uh, the only information on it was kept inside the involuntary manslaughter instruction. So when this court looked at it in Maryboy, one of the biggest issues was the way that the jury is instructed, they're not even gonna really know about involuntary manslaughter until they've already found that these other three forms of murder didn't apply beyond reasonable doubt.

[00:18:10] Speaker 00:
So that jury doesn't have a chance to look at that instruction and consider it against everything else. Here we do have the standalone involuntary manslaughter instruction.

[00:18:20] Speaker 04:
But Judge Federico's rationale was that the elements on first-degree murder did not include an element that the government had to disprove imperfect self-defense beyond a reasonable doubt, right? That was the holding of Mary Boy.

[00:18:35] Speaker 00:
So in Mary Boy, and I think it's important to have Mary Boy in the context of other cases too, it's that the jury has to understand that they have to disprove it beyond a reasonable doubt. This court in other cases has said, That can be in a standalone instruction or that can be in the instruction itself. And the jury in this case was instructed that they had to disprove self-defense beyond a reasonable doubt. And in the imperfect self-defense instruction, there was nothing in that instruction that would lead the jury to believe that the burden was any different, nor did the court or counsel make any argument to the jury that would find it was different.

[00:19:09] Speaker 00:
But ultimately, even if this court, this case does run afoul of Mary Boy because the court and the parties didn't have the opportunity to have this court's instruction or Mary Boy, ultimately the error is harmless because of another significant distinction with Mary Boy, which is that Mary Boy was a second-degree murder case.

[00:19:27] Speaker 04:
But his argument is that it violates the due process clause, and I'm not sure that you have... And that's a due process violation, and so you have to prove it's harmless beyond a reasonable doubt, correct?

[00:19:45] Speaker 00:
For an instructional error, Here, we would have to prove that it's harmless beyond a reasonable doubt. However, we do prove that in our argument. One of the ways that this court has said this is how to figure out if an error is harmless or not is the other evidence or is the evidence of guilt overwhelming so that we would believe that this error would not have affected the outcome of the case. And if you look to the Sago case, this court has said that first degree murder is just incompatible with imperfect self-defense.

[00:20:15] Speaker 00:
A jury can't both think that somebody acted with deliberation and premeditation, but also think that they may have been reacting unreasonably.

[00:20:25] Speaker 04:
I don't think Judge Hart said that. I think he said, and he specifically folded that within the clause in this case, because the person had shot the victim in the back.

[00:20:40] Speaker 04:
And so I don't read Sago to say that, And frankly, Mary Boy doesn't read Sago as a categorical preclusion of imperfect self-defense when there's a finding of first-degree murder, a finding of premeditation.

[00:20:58] Speaker 00:
And I don't argue that it always would be, Your Honor. But if you look at the facts in this case, you have that same level of clear evidence of deliberation of premeditation that existed in Sago that led to the rationale here that The first shots that he fires, that he allegedly fires at the homeless folks who are sitting in the tent who shined a flashlight on him, those were not murder. Those are the individuals who were assaulted.

[00:21:26] Speaker 04:
He then makes a decision to... And so if I'm wrong, tell me if I'm wrong, but Jason says he heard 12 shots. The government finds five casings that are consistent with Lynn's weapon. So...

[00:21:42] Speaker 04:
And he tells Jason that the victim, I forget his name, the guy in the other tent, that he had acted aggressively. Well, why can't a jury reasonably infer that some of those shots, 12 minus 5 is 7, some of those 7 shots presumably were from the guy and the victim himself who had fired because they couldn't find the other 7 casings, right?

[00:22:12] Speaker 00:
Because there was never any evidence that more than the shots that were fired by Mr. Lindworth.

[00:22:17] Speaker 04:
Well, Jason said that he told them. That there were 12 shots, right? Am I wrong about that?

[00:22:23] Speaker 00:
No, you're right. That is what somebody from a distance testified that they thought they heard that. But when a law enforcement gets to the scene, which is very quickly after the shooting, they look through these tents very thoroughly. They look through the area around very thoroughly. They find the number of shell casings consistent with the reports from the living victims. And they also find holes in the tents that are consistent with the number of shots the living victim said were fired by Mr. Whelan's gun. So while there may be pieces of testimony that could lead to something different, ultimately beyond a reasonable doubt doesn't mean that it has to disprove every possible doubt.

[00:23:03] Speaker 00:
Like we're looking at the reasonable doubts here. And there's no evidence that came into the record during trial that anybody in the tents actually tried to defend themselves or did anything other than shine a flashlight on him. Again, after, and this is important, he comes to the homeless encampment, he has a gun out. He is telling people that he wants his stuff back or he's going to use his gun.

[00:23:34] Speaker 00:
And so, you know, also when looking at an imperfect self-defense, imperfect and perfect self-defense are unavailable to a defendant who is the primary aggressor.

[00:23:43] Speaker 04:
If you walk into something with your gun drawn... I'm not trying to pick on you, but you said he came to the other encampment wielding a gun. I don't remember testimony to that. I remember him saying, I have a gun.

[00:23:55] Speaker 04:
But you're saying that there is evidence that he came out with his gun. Who testified to that?

[00:24:01] Speaker 00:
So when the...

[00:24:04] Speaker 00:
the victim who'd been shot, the woman whose name is momentarily leading me, I apologize. She testified that when they shined the flashlight out, his gun was already out.

[00:24:16] Speaker 00:
Ultimately, if it's all right with the court, I would move over to some of the Indian status questions. You can do whatever you want. Thanks, Judge. I think it's important to note, in terms of the business records exception, it's something that Judge Kelly mentioned as a part of this assessment, is that there is a presumption of regularity with these business records as long as the person who's testifying shows the requisite knowledge. Here, the document that was entered is simply a screenshot of his entry in the tribal database.

[00:24:47] Speaker 00:
It's a copy. It would be no different if the government put it on a USB drive. It's just a facsimile of exactly what shows up. And Ms. Tomlinson testified that that is how they manage all the tribal information for their tribals. So if somebody wants to apply, they put them in that system. If somebody were to reach out from an external situation, trying to confirm benefits or something like that, they go to this database. So in the regular course of their business, this is what they use to prove or disprove tribal membership.

[00:25:19] Speaker 00:
And while when confronted about the specifics of when information could have been entered in 1991 and 2001, she didn't know the answer.

[00:25:29] Speaker 00:
That's not the question asked by the business records exception. The question is, did you understand the process? If we had to bring somebody in who had to testify from memory about how something happened in 1991, it would eviscerate the purpose of the business records exception.

[00:25:45] Speaker 00:
He or she testifies that the BIA process, which is what they have to collect to send for the CDIB cards and what they get back from the BIA, has not meaningfully changed since 1979.

[00:25:57] Speaker 00:
which clearly encompasses all of the relevant dates involved in this case.

[00:26:01] Speaker 04:
Well, can I ask you about that? Yeah. And this follows Judge Avella's question. So as I understand it, Ms. Tomlinson, you know, she comes in in 2016 and the CPID card, I think she says was issued in 2001. And she does say that the process hasn't meaningfully changed, but she's asked point blank.

[00:26:25] Speaker 04:
As I recall, do you know when the tribe received back the CBID card from BIA and she says, no, I don't really have any idea. And they say, well, what kind of program, what kind of computer program did they, I don't know.

[00:26:45] Speaker 04:
And so it seems to me that she doesn't, even with viewing the evidence favorably in favor of the ruling of admission, it seems to me that there is a question about whether or not she really had personal knowledge about the contemporaneousness of recording that CBID card with the tribe's receipt back of that information from BIA?

[00:27:14] Speaker 00:
Well, I think that's important to determine what's the actual document that we're talking about here. So we presented the information from their enrollment. It may have one piece of information in it that's from 1991, but Ms. Tomlinson's testimony about how these database entries get created, she was also asked point blank Has that changed since 2001? And she said no. And so ultimately, you know, the process by which they get documents, record them in their system, the documents that are necessary, as Ms.

[00:27:47] Speaker 00:
Tomlinson laid out, there's no reason that the documents would change.

[00:27:54] Speaker 00:
Did she say no or did she just simply say I don't know?

[00:27:58] Speaker 00:
She said she had no reason to believe that the process had changed since 2001.

[00:28:01] Speaker 01:
Right, that's different than no.

[00:28:04] Speaker 01:
That's saying I have no knowledge rather than I have knowledge and the answer is no.

[00:28:09] Speaker 00:
I don't think it's necessarily that, Judgey Bell, because people don't always answer questions directly yes or no. But she is somebody who is the manager of the department. She's a manager in that role. And if a change had been made, she would have known about it.

[00:28:27] Speaker 01:
And so by her testifying to this, she wasn't aware of the change. What you've just told us, that's not her testimony. That's your testimony.

[00:28:34] Speaker 00:
She testified that she was the manager of the program.

[00:28:39] Speaker 01:
I don't recall that she said, in my current role, I would have known about the practices that were utilized before I came on to my role with the Chalk Foundation.

[00:28:53] Speaker 00:
No, and sorry if that was how it came out of my mouth. That wasn't what I meant to say, Judge. What I meant to say was that her saying that she understands how these processes go and her current position inside the tribe could lend a very reasonable judge. And again, we're talking about whether Judge Frizzell made an erroneous finding of fact here to believe that she would have known about any kind of significant changes.

[00:29:17] Speaker 01:
Did she ever say that? Did she say, if there had been a change?

[00:29:21] Speaker 01:
Before I came on with my role with the Choctaw Nation, I would have known about it.

[00:29:26] Speaker 00:
I don't recall that she said that. She didn't say that. She said that she had no reason to believe that the process had changed since 2001. It's also difficult on the evidence presented to you.

[00:29:35] Speaker 01:
I don't have any reason to believe that the process has changed either because I don't know anything about it.

[00:29:40] Speaker 01:
I mean, that's nothing more than just saying I'm no better off than somebody that has absolutely no evidence or information whatsoever.

[00:29:49] Speaker 00:
You have to put that answer, though, in the context of her entire testimony, which was very significant and very detailed on a number of different things.

[00:29:57] Speaker 01:
But not very specific and detailed about events before she came onto that role with the Choctaws.

[00:30:04] Speaker 00:
That is correct, that she did not testify about anything specific about how they would have entered data that had come back from the BIA.

[00:30:14] Speaker 04:
Isn't that a big deal? So your answer, as I understand it, to Judge Abel is, well, we can infer that prior to 2016 it was the same, but that begs the question, well, what was the practice that didn't change?

[00:30:35] Speaker 04:
And so I think what you just said, and tell me if I'm wrong about it, is that she never said that even now that I, Ms. Tomlinson, am there as soon as we get the BIA card. we do not leave the office before we input the information that we just get promptly into the database, the entry of the CBID card.

[00:31:06] Speaker 04:
So it seems to me that, did she say that? And if she didn't, then, okay, it didn't change, but we still don't have a foundation under the business records.

[00:31:16] Speaker 00:
So she did clearly testify that the current practice would be when they get the documents back from the BIA, that is when they finalize their enrollment process by putting them into the computer and by finalizing the application for enrollment in the trial.

[00:31:32] Speaker 04:
Immediately?

[00:31:33] Speaker 00:
Yes.

[00:31:34] Speaker 00:
Yeah, there was no testimony about any significant delay.

[00:31:37] Speaker 01:
No, she says that was the practice since she was there with Choctaw. That's correct.

[00:31:43] Speaker 01:
And so ultimately, even if that... I never heard, I'm not aware that she ever said, and in my current capacity, I know what they did before I came because it was part of my job to know the history of how they processed these things, and I can tell you they never changed. There was no testimony to that effect here. Okay.

[00:32:02] Speaker 00:
All she testified to was how the current practice goes and how she had no knowledge that it changed, and that specifically she had very specific knowledge that the BIA application process of collecting birth certificates, sending them to the BIA, I see that I'm out of time.

[00:32:16] Speaker 04:
You can certainly continue. I don't want you to make a new argument, but I want you to answer my colleague.

[00:32:22] Speaker 00:
In that the practice of what the BIA requires in terms of sending those documents to the BIA And then getting the approval back, that hadn't changed since 1979, other than the fact that it used to be that they had to send registered copies. And the BIA allowed them to send digital copies starting, I think, 2017.

[00:32:42] Speaker 00:
And so there is testimony that is affirmative. That would have allowed the court, in making its factual findings here, considering the whole nature of it, of Ms. Tomlinson's testimony to find that it satisfied the purposes of the business record exception, especially considering there was nothing about the document that would call the contents into question.

[00:33:03] Speaker 04:
All right. Thank you. Thank you, Your Honor. Do they have any rebuttal time?

[00:33:08] UNKNOWN:
No.

[00:33:09] Speaker 04:
But timekeeper answers that one. Thank you very much. This matter is submitted. I appreciate the excellent advocacy, both in your briefs both in your briefs and your arguments today.