[00:00:00] Speaker 03: We will start the morning's cases with United States versus Mayfield, number 255013. [00:00:13] Speaker 03: Counsel, you may proceed. [00:00:15] Speaker 03: Thank you, Your Honor. [00:00:24] Speaker 00: Good morning, Your Honors, and may it please the Court. [00:00:26] Speaker 00: My name is Ryan Villa. [00:00:27] Speaker 00: I represent the appellant, City Mayfield, [00:00:30] Speaker 00: I'm going to endeavor to reserve two minutes for rebuttal. [00:00:34] Speaker 00: Your Honor, we ask that the court reverse the convictions of Ms. [00:00:38] Speaker 00: Mayfield below, both because of a violation of Miranda when evidence of her invocation to silence was introduced to the jury, requiring reversal of all counts for which she was convicted, and as well because insufficient evidence was presented that she committed a crime of perjury [00:00:58] Speaker 00: Thus, on remand, that charge should be vacated and retrial barred due to the principles of double jeopardy. [00:01:05] Speaker 00: I'd like to actually start with Miranda, which I recognize is different than the way the briefing came out. [00:01:11] Speaker 00: But the critical point with respect to Miranda in the context of what we have sort of referred to as Doyle error is that this evidence was substantive evidence [00:01:22] Speaker 00: of Ms. [00:01:23] Speaker 00: Mayfield's invocation. [00:01:25] Speaker 00: Doyle, the lead Supreme Court case, was about impeaching a defendant who testified about things they did or did not say to police when they were initially interviewed. [00:01:36] Speaker 00: There's a lot of cases in this court and the US Supreme Court dealing with Doyle error in that context. [00:01:43] Speaker 00: This is a different context. [00:01:45] Speaker 00: I think it still fits into the umbrella of Doyle. [00:01:47] Speaker 00: But here, this is substantive evidence of Ms. [00:01:50] Speaker 00: Mayfield's invocation [00:01:51] Speaker 00: When she didn't testify, she elected not to testify at trial. [00:01:56] Speaker 00: That was never cured by the trial court. [00:01:58] Speaker 00: It was never stricken. [00:01:59] Speaker 00: The jury was never told to disregard that evidence. [00:02:03] Speaker 00: And it came at perhaps the most critical time, the most critical piece of evidence that the government presented against Ms. [00:02:10] Speaker 00: Mayfield. [00:02:11] Speaker 03: Counsel, do you think that the debate on this issue on appeal centers on [00:02:19] Speaker 03: the plain error steps, steps two and three. [00:02:24] Speaker 03: In other words, do you see the government's argument going more to those aspects of plain error than just whether there was an error itself? [00:02:36] Speaker 00: I do. [00:02:38] Speaker 00: You mean the government didn't directly concede error in the answer brief, but they did admit that it was improper for the detective to testify about her invocation of silence. [00:02:48] Speaker 03: Could you then put your arguments in those terms? [00:02:53] Speaker 03: In other words, there was error, assuming there's error. [00:02:56] Speaker 03: Why was it plain? [00:02:57] Speaker 03: And why did it affect your client's substantial rights? [00:03:03] Speaker 00: I think that what's important is the critical piece of evidence against Ms. [00:03:08] Speaker 00: Mayfield, which the government argues as a reason to find the evidence sufficient for perjury and that there's not harmless error, [00:03:17] Speaker 00: Ms. [00:03:18] Speaker 00: Mayfield telling the investigator in his police car a few days after the shooting that Ms. [00:03:23] Speaker 00: Davis did the shooting. [00:03:24] Speaker 00: That was the investigator's testimony. [00:03:27] Speaker 00: Ms. [00:03:27] Speaker 00: Mayfield's testimony at the grand jury was different. [00:03:29] Speaker 00: She said, I told the investigator what I heard from others that Ms. [00:03:34] Speaker 00: Davis did it. [00:03:35] Speaker 00: But regardless, the government cues in on Ms. [00:03:39] Speaker 00: Mayfield's motive. [00:03:40] Speaker 00: So if she's lying to the investigator that Miss Davis did the shooting, which really, by the time of trial, there's no dispute that Mr. Atkins did the shooting, not Miss Davis. [00:03:51] Speaker 00: If she's lying to the investigator, that shows a motive to commit perjury at a grand jury, shows a motive to obstruct justice for which she's on trial. [00:04:00] Speaker 00: And right before this supposed lie to the investigator, she had invoked her right to silence, said, I don't want to talk to you. [00:04:07] Speaker 00: Now, we as practitioners, jurists, we understand that's not supposed to be used as evidence, but a jury doesn't know that. [00:04:15] Speaker 00: That's why it's prohibited. [00:04:17] Speaker 00: That's why the US Supreme Court in Hayes called it some of the most prejudicial evidence you can admit at trial, because a jury looks at that and can infer without any further instruction from the trial court that that supports Ms. [00:04:31] Speaker 00: Mayfield's motive to lie. [00:04:33] Speaker 00: First, I'm going to invoke my right to silence. [00:04:35] Speaker 00: I don't want to talk to you. [00:04:37] Speaker 00: Then after I think about it for a few minutes and change my mind, I'm going to talk to you, but I'm going to lie. [00:04:41] Speaker 00: I've had time to think. [00:04:43] Speaker 03: Well, just one kind of almost a follow-up to my initial question about the plain error steps. [00:04:51] Speaker 03: Both in your brief and I think what I'm hearing this morning is you seem to be focused on linking the Miranda violation to the perjury conviction. [00:05:06] Speaker 03: think you're arguing in your brief that if we agree with you on the Miranda error and plain error, that it goes to all of the counts. [00:05:16] Speaker 03: But it seems like you're zeroed in more on the perjury count. [00:05:21] Speaker 03: Is that an accurate understanding of your argument? [00:05:25] Speaker 00: It is. [00:05:26] Speaker 00: We certainly spend more time on the briefing with perjury because motive to lie is so essential to that crime. [00:05:35] Speaker 01: Counsel, the testimony about the rights invocation, my understanding is that it was only said once at trial. [00:05:43] Speaker 01: Is that accurate? [00:05:44] Speaker 01: That's correct. [00:05:45] Speaker 01: And then immediately thereafter, the witness testified that then she did in fact agree to talk with him and then spent the bulk of the testimony sort of relaying with that conversation of the statements that she gave to the officer. [00:05:59] Speaker 01: Is that also accurate? [00:06:00] Speaker 01: Yes. [00:06:00] Speaker 01: OK. [00:06:01] Speaker 01: So how was this what I'll phrase as a passing reference to a rights invocation used against Ms. [00:06:09] Speaker 01: Mayfield at trial? [00:06:10] Speaker 01: Was it argued by the government in closing? [00:06:13] Speaker 01: Was it in any way highlighted other than that one passing reference? [00:06:17] Speaker 00: The government, nor defense counsel, argued it in any way to the jury in closing. [00:06:22] Speaker 00: It was just sort of ignored, right? [00:06:25] Speaker 00: And nobody asked the trial court for any remedy. [00:06:29] Speaker 00: doesn't prevent the jury from using that piece of evidence in conjunction with the government's argument, which was that when Miss Mayfield told the investigator that Miss Davis fired the shots, not Mr. Atkins, that she was lying. [00:06:44] Speaker 00: Ergo, she had a motive to lie. [00:06:46] Speaker 00: Thus, that's why she would lie at the grand jury. [00:06:50] Speaker 00: That's why she would try to obstruct justice to protect her son, Mr. Atkins. [00:06:55] Speaker 00: and point the finger at Ms. [00:06:57] Speaker 00: Davis. [00:06:57] Speaker 01: Yeah, but how would her rights invocation in any way give rise to an inference of motive to lie? [00:07:03] Speaker 01: I mean, her motive to lie was pretty obvious. [00:07:05] Speaker 01: Wasn't it based upon her relationship with the defendant being her son? [00:07:09] Speaker 01: And then the other woman who I think a grand jury, she said, was her daughter, not her biological daughter, but clearly a close, familiar relationship. [00:07:18] Speaker 01: So how would the rights invocation weight against the relationship she had with the defendant [00:07:24] Speaker 01: compare in terms of a motive to lie? [00:07:28] Speaker 00: Certainly I think there's a separate argument for the parties to make that she would have a stronger motive to protect her son than her non-biological daughter, who she knew, according to her testimony, for a shorter period of time. [00:07:39] Speaker 00: I think it was four years or around that time frame. [00:07:42] Speaker 00: However, that doesn't change the fact that the jury can use the invocation as sort of the setup. [00:07:49] Speaker 00: I need to formulate my thoughts. [00:07:51] Speaker 00: I need to figure out what I'm going to say that my initial [00:07:54] Speaker 00: According to the government's truth, if I say right away without invoking my right to silence, it's going to come out. [00:08:02] Speaker 00: So I'm going to invoke my right to silence after being told Miranda, so now I can think about what I want to say and tell you a lie, according to the government's theory of the case, as well as support the motive, which the government did argue this, support the motive to obstruct justice. [00:08:22] Speaker 00: The Facebook Live video, which is the primary piece of evidence about obstruction of justice, was a video sent by Ms. [00:08:30] Speaker 00: Mayfield to the mother of one of the witnesses because they knew each other and not necessarily what I would call a direct threat. [00:08:42] Speaker 00: The classic, if you show up and testify, I'm going to hurt you, it's more of, hey, your son's no good. [00:08:49] Speaker 00: Your son's a bad person. [00:08:51] Speaker 00: And part of that, of course, was whether he was going to cooperate at trial. [00:08:55] Speaker 00: We're not challenging the sufficiency of evidence with respect to that Facebook video, but it's not the strongest obstruction of justice case that the government needed to present evidence of motive. [00:09:06] Speaker 00: And certainly, there's motive because it's her son, but there's also [00:09:11] Speaker 00: a reason why we determine that Miranda invocations are so prejudicial and can't be heard by the jury. [00:09:21] Speaker 00: And if it's a different case, right, part of the discussion about perjury conviction is what inferences can we draw from circumstantial evidence? [00:09:31] Speaker 00: If it's a murder case where you've got DNA and blood and eyewitnesses and guns and those sorts of things, someone's invocation really isn't that critical. [00:09:41] Speaker 00: But when it's a perjury case and an obstruction case where everything sort of hinges on Ms. [00:09:47] Speaker 00: Mayfield's motive and especially her motive to lie, the invocation becomes much more prejudicial because the jury can draw that inference that that's why she invoked so she could figure out a story to tell, a lie to tell. [00:10:01] Speaker 01: Counsel, can I ask you about the perjury conviction? [00:10:03] Speaker 01: The statements at grand jury [00:10:06] Speaker 01: that I think from reading the briefs are probably most at issue is her response that she did not see who shot the victim. [00:10:17] Speaker 01: Is that an accurate recitation? [00:10:19] Speaker 00: It's difficult to discern. [00:10:21] Speaker 00: I think if you look at trial, it's all about who was the shooter, right? [00:10:26] Speaker 00: Was it Miss Davis versus Mr. Atkins? [00:10:28] Speaker 00: I think on appeal when we slice it up, the way you characterize it is pretty accurate. [00:10:33] Speaker 00: There are some secondary [00:10:34] Speaker 00: statements the government points to, but that's the primary. [00:10:37] Speaker 01: Well, given our review of a jury verdict here that did convict her beyond a reasonable doubt, and the deference we give to that verdict, how can we reverse here for insufficiency when she also gave testimony about what she was looking directly at? [00:10:55] Speaker 01: I think his name was Mr. Brown, and she's sitting right next to them. [00:10:59] Speaker 01: I mean, couldn't a rational juror conclude that she wasn't being truthful, that she had no idea or didn't see who shot him? [00:11:06] Speaker 01: Why is that so obviously false that we would not give deference to a jury verdict here? [00:11:12] Speaker 00: Well, two reasons. [00:11:14] Speaker 00: One, the literal truth defense when it comes to perjury, which makes inferences different than in the normal case. [00:11:23] Speaker 00: And the other reason is materiality, which I'll start there. [00:11:28] Speaker 00: We're talking about grand jury testimony. [00:11:30] Speaker 00: So the standard is, is there probable cause to believe Mr. Atkins was the shooter. [00:11:36] Speaker 00: Mr. Atkins committed the assault. [00:11:37] Speaker 00: That's what the grand jury was asked to decide. [00:11:41] Speaker 00: And her testimony at the grand jury provided probable cause for them. [00:11:45] Speaker 00: She testified to the grand jury that they were there, that Mr. Atkins and Ms. [00:11:50] Speaker 00: Davis were in the front seat, that the shooting came from the front seat, that she didn't see which one of them shot, but that she heard it. [00:11:57] Speaker 00: and that she had looked away when the shooting part occurred. [00:12:02] Speaker 00: That provided probable cause to the grand jury that Mr. Atkins was the shooter. [00:12:06] Speaker 00: It was left for a later day to decide, is that self-defense or those sorts of things. [00:12:12] Speaker 00: So the standard at the grand jury makes her testimony does provide probable cause, and for the perjury prosecution makes it not material [00:12:23] Speaker 00: the way she described it in the grand jury as who was the shooter. [00:12:27] Speaker 00: It had to be either Ms. [00:12:29] Speaker 00: Davis or Mr. Atkins. [00:12:30] Speaker 03: Counsel, on the perjury conviction, I wasn't clear on whether you were making an argument on sufficiency relative to the mens rea element, the knowledge element. [00:12:47] Speaker 03: Are you making any argument about that? [00:12:51] Speaker 00: Not directly. [00:12:52] Speaker 00: I think it's related. [00:12:53] Speaker 00: But really, it's the two elements that we focus on in the brief and that I'm focused on today are, was the statement false under the literal truth idea? [00:13:04] Speaker 00: And then second, was it material? [00:13:06] Speaker 03: Does it matter that the alleged false statements weren't played out specifically in the indictment or the jury instructions? [00:13:19] Speaker 03: What's your understanding of how the government actually presented discrete alleged false statements to the Juriet tribe? [00:13:30] Speaker 00: Well, to be fair, the entire transcript was admitted as an exhibit. [00:13:35] Speaker 00: However, the testimony and the arguments from counsel all focused on who was the shooter. [00:13:42] Speaker 00: Was it Ms. [00:13:43] Speaker 00: Davis or was it Mr. Atkins? [00:13:44] Speaker 00: And then you get into, well, [00:13:48] Speaker 00: Investigator shanks says she told me miss Davis was the shooter she testifies to the grand jury I told shanks I heard miss Davis was the shooter And there's some back and forth to in the grand jury about the things she saw on video apparently she was shown the video that that morning versus what she saw sure I was trying to break this down a bit more to extract what I thought or maybe the statements I [00:14:15] Speaker 03: One was nobody discussed the shooting during the drive home. [00:14:20] Speaker 03: Wasn't that one of the alleged false statements? [00:14:23] Speaker 03: Let's just go through them and you can tell me. [00:14:24] Speaker 03: She didn't see any firearms in the car. [00:14:26] Speaker 03: She didn't know who shot Mr. Brown. [00:14:28] Speaker 03: She didn't see the shooting. [00:14:30] Speaker 03: Are all those statements in play here as far as you're concerned? [00:14:35] Speaker 00: They're all in play because they were admitted as evidence in the transcript, yes. [00:14:39] Speaker 00: However, I argue all of those with the exception of who shot [00:14:45] Speaker 00: are not material. [00:14:48] Speaker 00: Did she see Mr. Brown have a gun? [00:14:50] Speaker 00: Did she see Mr. Brown reaching for a gun? [00:14:53] Speaker 00: We're not material to the grand jury, because the grand jury wasn't deciding self-defense. [00:14:58] Speaker 00: If she gave that testimony in a jury trial about self-defense, then we have a different argument. [00:15:03] Speaker 00: But they're not material to the grand jury presentation. [00:15:06] Speaker 00: What was material was who was the shooter. [00:15:11] Speaker 00: where literal truth and materiality come into play. [00:15:14] Speaker 00: And I see that I've run out of time. [00:15:16] Speaker 00: May I just briefly conclude? [00:15:18] Speaker 03: Please do. [00:15:19] Speaker 03: But before you do, let me make sure. [00:15:21] Speaker 03: Judge Murphy, do you have anything further for counsel? [00:15:27] Speaker 03: No, I do not. [00:15:29] Speaker 03: Why don't you sum up? [00:15:30] Speaker 00: Sure. [00:15:30] Speaker 00: Just to sum up, back to who was the shooter, [00:15:35] Speaker 00: literally false or the government didn't carry its burden for the literal truth defense, which is sufficiency because Ms. [00:15:43] Speaker 00: Mayfield's grand jury testimony did implicate Mr. Atkins. [00:15:48] Speaker 00: And it wasn't material in that context because in the grand jury, we're just deciding probable cause. [00:15:56] Speaker 00: We're not deciding beyond a reasonable doubt who was the shooter. [00:16:00] Speaker 00: Thank you. [00:16:00] Speaker 03: Thank you, counsel. [00:16:17] Speaker 04: May it please the court, Thomas Duncan for the United States. [00:16:20] Speaker 04: The government wins this appeal because a rational jury could have found that the government proved, beyond a reasonable doubt, both the materiality and the falsity of Ms. [00:16:31] Speaker 04: Mayfield's grand jury testimony, and because there was no doil error in this case, because Officer Schenck's stray, unsolicited remark did not constitute the use of post-arrest silence by the prosecution. [00:16:44] Speaker 03: So you're arguing no error at all. [00:16:47] Speaker 04: We are. [00:16:47] Speaker 04: And we elided error and plain error a little bit in our brief. [00:16:52] Speaker 04: And I apologize for any confusion that caused. [00:16:55] Speaker 04: But part of the reason is because most of the cases in this court on Doyle error are on preserved errors. [00:17:02] Speaker 04: And so they either assume or the government concedes that whatever the statement was, it was an error. [00:17:09] Speaker 04: And not only an error, but it was an error of constitutional proportion. [00:17:12] Speaker 04: And the trial stopped. [00:17:14] Speaker 04: And there was a curative instruction. [00:17:15] Speaker 04: And so you have those cases like [00:17:17] Speaker 04: Williams and Lauder that are in that vein. [00:17:19] Speaker 04: In this case, we assert that there is a difference between an ill-advised comment and an error, which is a term of art for purposes of this Court's review. [00:17:33] Speaker 03: So what's your best case on that term of art? [00:17:39] Speaker 04: Well, this Court's jurisprudence in general talks about, [00:17:46] Speaker 04: whether there is an error, whether that error is plain. [00:17:50] Speaker 03: Well, I'm talking about what you said a minute ago. [00:17:54] Speaker 03: It has to be an error. [00:17:55] Speaker 03: It has to be a matter of constitutional proportion. [00:17:59] Speaker 03: Why wasn't this one of constitutional proportion? [00:18:03] Speaker 04: Yes, and to be clear, the cases that talk about whether it was an error of constitutional proportion are cases where the error is preserved. [00:18:12] Speaker 04: And so they- There still has to be an error, though. [00:18:15] Speaker 03: So what makes this an error? [00:18:17] Speaker 04: Well, the Lane case is one. [00:18:21] Speaker 04: I believe that's 1988 from this court that says merely bringing up in one reference the defendant's invocation is not a Doyle error because it doesn't constitute the use of the defendant's invocation against him or her. [00:18:40] Speaker 04: There was a case, and it may have been lame, and I may be mixing up the facts, but where the prosecution referenced the defendant's invocation in an off-the-cuff way. [00:18:51] Speaker 04: And that wasn't the use of post-arrest silence against the defendant. [00:18:56] Speaker 04: So the cases do support that there's a difference between an inadvertent comment that shouldn't have been made and an error for purposes of plain error review, or in most of the cases that this court has thus far, [00:19:10] Speaker 03: But can't inadvertent comments, as inadvertent as they may be, still be error? [00:19:18] Speaker 04: They can, but in this context, the error that Doyle speaks of is not just the mentioning of post-arrest invocation, it's the use by the prosecution of post-arrest invocation. [00:19:34] Speaker 04: And there was no use here. [00:19:38] Speaker 03: So I'm trying to understand what the rule statement might be based on your argument that if there is reference to Miranda and invocation of Miranda, as long as there's no curative instruction from the court, as long as the prosecutor doesn't say anything more about it, then there's [00:20:08] Speaker 03: never an error? [00:20:10] Speaker 04: No, I didn't say there was never an error, but the cases do support that there is daylight between the prosecutor or the government witness made an off-the-cuff reference, and that is always an error. [00:20:26] Speaker 04: And if it's such a stray remark, if it's so off-the-cuff, that it doesn't constitute use, which again, the case law is use, not mentioning. [00:20:36] Speaker 04: That's not an error. [00:20:37] Speaker 04: But in any event here, even if you strongly disagree with me on that point, there was no plain error here because there was no use for the purpose of, for any purpose. [00:20:52] Speaker 01: This was... When the trial judge heard the witness testify about a rights invocation, why wasn't it sort of plain at that point that the trial judge, Sue Esponte, should have interjected? [00:21:05] Speaker 01: with a curative instruction? [00:21:08] Speaker 04: First of all, there is no case from this court or any confluence of circuits that says that that is a plain error if there's an off-the-cuff, unsolicited remark. [00:21:25] Speaker 04: The cases say that the error and the plain error would be use of the defendant's post-arrest silence, either as evidence of guilt or evidence of impeachment. [00:21:35] Speaker 04: We didn't have that here. [00:21:37] Speaker 04: And in the cases like Williams and Lauder, when they're in the constitutional harmless error analysis, either the government concedes or the court proceeds directly to was this harmless beyond a reasonable doubt, bless you. [00:21:54] Speaker 04: And in those analyses, they talk about the fact that it only came up for a few minutes, it was not repeated in closing, the government didn't [00:22:04] Speaker 04: intend for that to come out, and so they talk about those things in the context of whether it was harmless beyond a reasonable doubt. [00:22:12] Speaker 01: Well, that's all the hindsight review I'm talking about. [00:22:16] Speaker 01: The moment the witness testifies about that invocation, because as I understand Ms. [00:22:23] Speaker 01: Mayfield, part of the argument that's been made is this is said before the jury, and it's sort of a setup then towards her statement about [00:22:33] Speaker 01: who had done the shooting, and then her motive, what was going on in her head, her reasons for making these statements, is essentially the whole case, what she's charged with. [00:22:42] Speaker 01: And so are you saying that we only focus on the, quote, use in that a trial judge sitting in the courtroom observing a witness testify about a rights invocation is just supposed to sit back and say, well, let me see how this plays out. [00:22:57] Speaker 01: Let me see whether the prosecutor argues that at closing [00:23:00] Speaker 01: Let me see you on the cross-examination of this witness, and then only then I'll decide whether the security of instruction. [00:23:06] Speaker 04: No, and you're absolutely right that when we're talking about a hindsight review, it's different than when we're talking about prospectively. [00:23:14] Speaker 04: I think everyone in this room would agree that we would instruct judges, even if it seems inadvertent, to stop the proceedings and say, hold on, I want to address this, and I want to make sure the jury understands this. [00:23:25] Speaker 04: But for purposes of the case law, there is a difference between a reference and use. [00:23:30] Speaker 04: And in some of the cases, because they've moved on to is this a constitutional harmless error or is it harmless beyond a reasonable doubt, they talk about that, you know, who brought it up, how long was it dwelled on, they talk about that in the context of the harmlessness. [00:23:50] Speaker 04: And even if this court views it in that light, that we should view it as a plain error but talk about things like how long was it, [00:23:59] Speaker 04: Was it intentional? [00:24:00] Speaker 04: Did they harp on it? [00:24:02] Speaker 04: How strong was the evidence otherwise? [00:24:04] Speaker 04: If this court purely looks at that in the substantial rights column, the government still wins on that issue. [00:24:12] Speaker 02: And not just because... You're saying that we skip over the first two, whether or not there was air, whether or not there was a plane, and go to effective on substantial rights? [00:24:26] Speaker 02: The lack of use, as you argue it, is an important factor in that analysis. [00:24:32] Speaker 04: Yes, it is. [00:24:34] Speaker 04: Yes, I'm sorry, Judge Murphy. [00:24:37] Speaker 04: If we move on to harmless error analysis or plain error substantial rights analysis, the courts apply the Massey test, where one of the factors is what was the extent of the use. [00:24:51] Speaker 04: and what was, who brought it up first, and how was it brought up, so you get into things like that. [00:24:59] Speaker 04: We would assert that if it's not something that disqualifies this from being an error and not something that qualifies this from being a plain error, then it certainly is something that weighs against this being a violation of Ms. [00:25:14] Speaker 04: Mayfield's substantial rights. [00:25:16] Speaker 04: And I want to make clear, we disagree [00:25:19] Speaker 04: profoundly with my colleague's assertion that this came at the most critical time of the trial for purposes of the perjury charges. [00:25:30] Speaker 04: When the invocation was mentioned by Officer Shanks, that was the first witness of the trial. [00:25:37] Speaker 04: And then the later statement to Officer Shanks of Davis was the shooter. [00:25:43] Speaker 04: The jury would not have been in a position to realize the importance of the statement [00:25:49] Speaker 04: not the invocation, but the statement Davis was the shooter until the last day of trial when Agent Nechuparenko testified and they saw the transcript of what Ms. [00:25:59] Speaker 04: Mayfield had told the grand jury. [00:26:01] Speaker 04: It was only then that it was discussed that there was a discrepancy between what she had told Affirmatively Officer Shanks about Davis was the shooter and what she had told the grand jury, which is Brown told his gang buddies that Davis was the shooter, his gang buddies told a white guy named Benjamin, [00:26:19] Speaker 04: that Davis was the shooter and a white guy named Benjamin told me, that's what I meant when I told Investigator Shanks. [00:26:25] Speaker 04: So this would most likely, being the first witness of the trial, have been a blip on the jury's radar when they were going back and deliberating on what are the inconsistencies in Ms. [00:26:38] Speaker 04: Mayfield's statements. [00:26:39] Speaker 01: Counsel, you just mentioned the grand jury transcript, so can you help us understand [00:26:45] Speaker 01: the discussion we just had about which statements were highlighted to the jury as being false and material that supported the perjury instruction because it's been presented to us. [00:26:58] Speaker 01: The whole transcript was admitted into evidence. [00:27:00] Speaker 01: I can assume the jury wasn't just told pick through there and find what you think is false. [00:27:04] Speaker 01: So which statements in the government's view are really at issue here? [00:27:08] Speaker 04: No, and the jury was not told pick through the transcript and find which you think are false, but it's important that [00:27:15] Speaker 04: Because we're in a sufficiency of the evidence analysis, and I do want to answer your question directly and talk about some of those specific statements, but it is important that what you said earlier, Judge Federico, that we are in a situation where they did not have to allege in the indictment these are the specific statements from the grand jury transcript that were false. [00:27:36] Speaker 04: And the Strom case, and I think footnote 14, talks about the fact even if we disagree with [00:27:43] Speaker 04: the government that this particular statement that they've highlighted for us was false, there were plenty of other statements for the jury to select from. [00:27:51] Speaker 04: And that's the case here as well. [00:27:52] Speaker 03: So some of those... So, counsel, that's an interesting argument. [00:27:58] Speaker 03: Does that mean that under our standard of review for sufficiency, if there was a statement in the grand jury transcript [00:28:08] Speaker 03: that the government didn't affirmatively present to the jury as false. [00:28:15] Speaker 03: But this court on review thought it was false. [00:28:22] Speaker 03: Could we affirm on that ground? [00:28:24] Speaker 04: Yes, 100% yes. [00:28:26] Speaker 04: And the reason is because of this court's sufficiency jurisprudence. [00:28:30] Speaker 04: This court takes all the evidence, both direct and circumstantial, and the reasonable inferences to draw from that evidence. [00:28:37] Speaker 04: And that evidence included [00:28:38] Speaker 04: the grand jury transcript, which was Exhibit 61. [00:28:40] Speaker 04: And you can see the exhibit list on page 377 of Volume 1. [00:28:44] Speaker 03: Even if the statement wasn't mentioned at all? [00:28:47] Speaker 04: Even if the statement was not mentioned at all. [00:28:49] Speaker 03: Well, as long as the exhibit's there and they can look at it and we can look at it and decide that there should be a perjury conviction. [00:28:56] Speaker 04: Yes. [00:28:57] Speaker 04: This Court's review on sufficiency of the evidence is very deferential. [00:29:00] Speaker 04: Now, having said [00:29:02] Speaker 04: this court need not do that in this case because there were a number of statements that the government did highlight to the jury that were false. [00:29:10] Speaker 04: Most notably, all the statements about, I saw exactly what Brown was doing when he was both in front of the car and to the right of the car and just back a little bit with where he was standing, with what he was doing with his hands, with the fact that he had the gun out in his hands, and then there is no [00:29:31] Speaker 04: good reason given why she wouldn't have seen him being shot. [00:29:36] Speaker 04: She says, after I heard the gunshots, I got scared. [00:29:41] Speaker 04: And that's her explanation for why she didn't see Brown getting shot. [00:29:45] Speaker 04: She didn't see someone shooting. [00:29:47] Speaker 04: And then there's other inconsistencies from there, most notably from the transcript. [00:29:52] Speaker 04: She says that Brown, when he was standing in front of the car and in front of the store, pulled the gun out and was threatening with it. [00:30:03] Speaker 03: On some of the other, well, Mr. Biela was saying earlier that at least some of the statements were not material. [00:30:13] Speaker 03: Do you think the issue of materiality is a little closer for some of these other ones? [00:30:17] Speaker 03: I'll give you an example. [00:30:19] Speaker 03: The statement about nobody said anything on the drive home, how's that material? [00:30:26] Speaker 04: So first of all, and I want to answer that question, but first of all, I just want to orient the court in terms [00:30:33] Speaker 04: materiality, just because this was a probable cause determination and not a beyond a reasonable doubt determination, that doesn't mean that materiality means something less than it does when you're in a trial. [00:30:44] Speaker 04: Something that would have had the natural tendency to influence the grand jury's determination or would have had the potential to influence that determination would have been material. [00:30:54] Speaker 03: Is the analysis different? [00:30:56] Speaker 03: Maybe this goes in your direction. [00:30:59] Speaker 03: Is the analysis of materiality different [00:31:02] Speaker 03: in the context of the grand jury than in the context of trial, because the grand jury just needs to find probable cause. [00:31:10] Speaker 04: No, and I see that my time is up, but may I? [00:31:14] Speaker 04: The analysis is not different. [00:31:16] Speaker 04: And all the cases, whether you're talking about grand jury testimony or trial testimony, the standard is the same. [00:31:23] Speaker 04: If you look at Durham or you look at Strome, the standard for materiality is, did it have a natural tendency to influence the grand jury? [00:31:31] Speaker 04: Was it capable of influencing the grand jury? [00:31:34] Speaker 04: And the two questions that the grand jury had to answer were, number one, did Atkins shoot as opposed to someone else? [00:31:41] Speaker 04: And number two, did he shoot without justification? [00:31:44] Speaker 04: In other words, did he shoot with the intent to do bodily harm, as alleged in the indictment? [00:31:49] Speaker 04: Or did he shoot because he was trying to protect the other people in the car from a threat? [00:31:53] Speaker 04: Which is a lot of what Ms. [00:31:55] Speaker 04: Mayfield was testifying to in the grand jury. [00:31:57] Speaker 04: That the affirmative testimony about he was standing in front of the car, [00:32:02] Speaker 04: not only had his gun out when he was standing behind the car and to the right, but had his gun out and was threatening with it in front of the car. [00:32:09] Speaker 04: That's something that's demonstrably false from the video that we have in this case. [00:32:14] Speaker 04: Thank you. [00:32:14] Speaker 04: Can I ask one more? [00:32:15] Speaker 03: We have another question. [00:32:17] Speaker 01: Mr. Ville a moment ago said that by the time the Mayfield trial began, it was no longer in doubt that Mr. Atkins was the shooter. [00:32:25] Speaker 01: Can you help me understand why that was and was the jury told that or how did they know that? [00:32:32] Speaker 04: The only way that the jury would have known that is that Mr. Atkins got up and testified that, yes, I shot him, and said that essentially it was in self-defense. [00:32:42] Speaker 04: And his sister, Miko, testified that Brown had the gun out. [00:32:46] Speaker 04: And the jury may have been able to infer that from the cross-examinations of some of the government witnesses, focusing on the fact that Brown had a gun, focusing on the fact that Brown was clutching it at some points during the evening. [00:32:58] Speaker 04: But other than that, this was not [00:33:01] Speaker 04: But certainly by the grand jury, which was long before the trial, it was very material who exactly was the shooter. [00:33:10] Speaker 04: And they were, you know, Ms. [00:33:12] Speaker 04: Mayfield was not the only grand jury witness. [00:33:15] Speaker 04: But it strains the English language to say that her testimony supported probable cause on any of those points. [00:33:24] Speaker 03: Thank you. [00:33:25] Speaker 03: Thank you, counsel. [00:33:28] Speaker 03: exhausted the allotted time, so we will consider this case submitted. [00:33:33] Speaker 03: Thank you for your argument. [00:33:35] Speaker 03: Counselor excused.