[00:00:00] Speaker 04:
We will now hear United States versus McBee, number 255049.

[00:00:07] Speaker 04:
Counsel.

[00:00:10] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:12] Speaker 01:
My name is Malia Castillo, and I represent the appellant in this case, Mario Terrell McBee.

[00:00:17] Speaker 01:
I intend to attempt to reserve some time at the end for rebuttal.

[00:00:22] Speaker 01:
At the outside, I do want to say that we briefed three issues.

[00:00:25] Speaker 01:
In this case, one of those was a Second Amendment issue.

[00:00:27] Speaker 01:
We recognize that, pursuant to Vincent V. Bondy, that that is foreclosed.

[00:00:33] Speaker 01:
So I do not intend to argue that.

[00:00:37] Speaker 01:
The government argues... Sorry.

[00:00:42] Speaker 01:
The standard for review for the remaining issues is plain error.

[00:00:47] Speaker 01:
So I do want to stress that the only issue at trial was whether Mr. McBee had knowledge that he possessed a gun and ammunition.

[00:00:57] Speaker 01:
Mr. McBee

[00:00:58] Speaker 01:
It was a black man who showed up to the Claremore Indian Nation Hospital.

[00:01:03] Speaker 01:
He was unconscious, actively overdosing.

[00:01:06] Speaker 01:
The government acknowledged in its opening that the main issue at trial was knowledge.

[00:01:13] Speaker 01:
Specifically, they asked the jury to evaluate whether Mr. McBee had knowledge of possessing a particular pistol and whether he had knowledge of possessing ammunition.

[00:01:24] Speaker 01:
Likewise, the defense counsel in its opening said that we do not dispute that he possessed the gun, that he possessed the ammunition, that knowledge was the central issue for the jury to decide.

[00:01:41] Speaker 01:
Before testimony began, defense counsel and the government's counsel had entered into two stipulations, and that was written to the jury before any testimony was given.

[00:01:51] Speaker 01:
The first stipulation recognized that the parties agreed that Mr. McBee was a felon at the time of the offense conduct on April 23rd of 2021, and that he knew of his felon status.

[00:02:08] Speaker 01:
The second stipulation that the parties entered into stated that all of the offense conduct and that Mr. McBee were present in the Northern District of Oklahoma.

[00:02:20] Speaker 01:
So really,

[00:02:21] Speaker 01:
With the remaining issues, what this boils down to is whether or not whenever Agent Williams got up to testify and said that all of the elements have been met, if that phrase that all of the elements have been met was inclusive of every element, if he was directly testifying to each of those individually, the first of which is the knowledge element, that he knowingly possessed the firearm and ammunition.

[00:02:53] Speaker 01:
The only issues left to prove because of the stipulations were the interstate nexus, which they had Agent Williams testify to, and then the knowledge element.

[00:03:03] Speaker 01:
So most of the trial was geared towards proving Mr. McVie's knowledge.

[00:03:09] Speaker 01:
So we maintain that yes, that expressing a general opinion, going back to what the central question is here, that a person is guilty, that all of the elements have been met, necessarily means that that person is testifying to each of the elements individually.

[00:03:23] Speaker 01:
Just because he didn't enumerate, that Agent Williams didn't enumerate, does not mean that the jury wouldn't have realized that he was talking about each of those specifically.

[00:03:35] Speaker 04:
Counsel, what if Mr. Williams had just said, we didn't investigate further because we had all we needed?

[00:03:44] Speaker 04:
Would that be an error?

[00:03:47] Speaker 01:
No, I don't think so, because there was actually another witness, FBI Agent David Young, who said something similar.

[00:03:53] Speaker 01:
He was asked, why didn't you go out to further investigate?

[00:03:57] Speaker 01:
And he said, I think this is a semi cut and dry case, is what he said.

[00:04:02] Speaker 01:
And I think the semi part of that allowed for the jury to make an inference.

[00:04:08] Speaker 01:
And I think that was, I guess, squishy enough that the jury could evaluate that and then evaluate the evidence presented.

[00:04:16] Speaker 04:
Well, I guess my question is,

[00:04:20] Speaker 04:
What's the difference?

[00:04:22] Speaker 04:
If he says we had everything we needed to go to the grand jury, we didn't look in the car because we thought we had everything we needed, is it really the use of the word elements?

[00:04:37] Speaker 04:
Does that make all the difference?

[00:04:39] Speaker 01:
I think it does in this case because when the jury gets their instructions, all the elements are enumerated.

[00:04:46] Speaker 01:
The very first one is the one about knowledge.

[00:04:48] Speaker 01:
It's an issue.

[00:04:50] Speaker 01:
Sorry, can you repeat your question?

[00:04:56] Speaker 04:
Well, it just seems like if you didn't have an argument with him, I guess the question is, would you have any argument if he hadn't used the word element?

[00:05:10] Speaker 01:
As long as he didn't use anything that was substantially similar to the mens rea element to knowingly, I don't think we would have an argument

[00:05:18] Speaker 01:
I think specifically because he did say element that the jury could put two and together that he was commenting on every single thing.

[00:05:26] Speaker 01:
And I think, too, if they were framed in a purely investigatory sense, which I know that that is how it was sort of presented, you know, within the realm of his regular scope and duties, then that would be a different discussion.

[00:05:43] Speaker 01:
But because he went outside of his expertise

[00:05:47] Speaker 01:
and said that every single element, not the ones that I am responsible for as a case agent or as the Nexus expert, if he had framed it that way, I don't think that we would have an argument.

[00:05:58] Speaker 01:
But I think because he went outside of that and started testifying to the mens rea element or all the elements.

[00:06:04] Speaker 04:
Well, that actually leads to a different question.

[00:06:10] Speaker 04:
So Agent Williams was called to be the Nexus expert.

[00:06:17] Speaker 04:
Yes.

[00:06:18] Speaker 04:
I read through the transcript and there was a fairly extensive foundational testimony to qualify him as a Nexus expert and then the prosecutor moved to have him admitted or qualified.

[00:06:38] Speaker 00:
Yes.

[00:06:39] Speaker 04:
Again, as a Nexus expert.

[00:06:41] Speaker 04:
All right.

[00:06:42] Speaker 04:
But when he made this statement, this wasn't

[00:06:45] Speaker 04:
This was not just about Nexus.

[00:06:49] Speaker 04:
Is it obvious that when he gave this particular testimony that you're challenging that he was testifying as an expert?

[00:06:58] Speaker 01:
An expert as to Nexus or an expert just generally?

[00:07:02] Speaker 04:
Was that actually expert testimony or was that agent lay witness testimony?

[00:07:12] Speaker 01:
Yeah, so I think it could fall one of two ways that he was testifying just as a Nexus expert, excuse me.

[00:07:21] Speaker 01:
But I think because of how he was certified and the questions that were asked and the answers that he gave leading up to that, he talked about his 26 years in experience.

[00:07:30] Speaker 01:
He was asked about how many of the cases that he investigated involved guns.

[00:07:34] Speaker 01:
And he said 75% to 80%.

[00:07:36] Speaker 01:
He went at length talking about how many guns he had

[00:07:42] Speaker 01:
interacted with in his career, how much ammunition he had looked at in his career.

[00:07:47] Speaker 01:
And so I think from a jury's perspective, they could see that as, OK, he is also an authority on investigative techniques, what needs to be done in a case.

[00:07:56] Speaker 01:
He should be familiar with what needs to be proven and that sort of thing.

[00:08:02] Speaker 02:
Counsel, can I make sure I'm tracking on your argument here?

[00:08:06] Speaker 02:
The 704B refers specifically to mental state or condition.

[00:08:11] Speaker 02:
Because I understand your argument, you're saying that because Agent Williams used the words elements, it would have been obvious to the jury that by elements what he really meant was knowledge because that's the only element that was at issue.

[00:08:25] Speaker 02:
Do you have any cases that have taken that sort of inferential leap that the jury has, it's just clear to them that there's only one element at issue and

[00:08:37] Speaker 02:
a witness who doesn't even refer specifically to a mental state or condition, that that's found to be 704B error?

[00:08:45] Speaker 01:
I think the closest one that we have is that Mary Boy case, because in that case, it was thoroughly discussed that knowledge was the only element.

[00:08:54] Speaker 02:
Well, in Mary Boy, though, the witness specifically testified about recklessness.

[00:08:59] Speaker 01:
Correct.

[00:08:59] Speaker 02:
That was the mental state at issue, and that was the testimony that the agent said several times.

[00:09:03] Speaker 02:
That would be reckless.

[00:09:04] Speaker 02:
Correct.

[00:09:04] Speaker 02:
That was the testimony.

[00:09:05] Speaker 02:
So that was square on point to 704B.

[00:09:08] Speaker 02:
That's what I'm getting.

[00:09:09] Speaker 02:
So if it's not Mary Boy, or at least hint, because that was testimony specific towards mental state or condition, are there any other cases besides Mary Boy that you would point us to?

[00:09:19] Speaker 01:
I think Diaz also is beneficial for us on that point.

[00:09:26] Speaker 01:
Because in that case, the court said that if, and this is the Diaz from the Supreme Court 2024, because I know there are two Diaz cases,

[00:09:36] Speaker 01:
But that one talked about if, you know, in a hypothetical, if all defendants knew or all couriers knew a certain thing or if some of them knew a certain, had that knowledge requirement, you know, all couriers would include the defendant.

[00:09:53] Speaker 01:
And so that would impart that knowledge that the expert would have been testifying to, to the defendant.

[00:10:00] Speaker 01:
And so the court had a discussion about how that would have changed the outcome.

[00:10:05] Speaker 01:
instead of saying some couriers might know.

[00:10:09] Speaker 01:
And so I think, to your point, that would be our strongest case.

[00:10:13] Speaker 02:
And help me understand a potential overlap between your 704b argument and a 403 argument.

[00:10:19] Speaker 02:
Are those distinct, and how should we think about those?

[00:10:21] Speaker 01:
So I think the 403 argument goes more towards our second issue being outside of the scope.

[00:10:28] Speaker 01:
I do think, though, that this is prejudicial and that this gets to

[00:10:35] Speaker 01:
The main question being, if he's not commenting on elements in an enumerated way, if he's kind of lumping them all together, is he necessarily commenting on all of them?

[00:10:46] Speaker 01:
And I think that really, where that comes into play is our first and third prong.

[00:10:52] Speaker 01:
So I guess to your point, the prejudice issue.

[00:10:56] Speaker 01:
So if there is an error, then 704B is necessarily violated, because he is an expert.

[00:11:05] Speaker 04:
the 403 argument was being made in conjunction with your rule 702.

[00:11:12] Speaker 04:
Yes.

[00:11:13] Speaker 04:
So what is your 702 argument?

[00:11:17] Speaker 01:
So the 702 argument is that he was recognized as a nexus expert in that essentially he could not have in either way testified to in a lay opinion about Mr. McVie's knowledge because he didn't have that

[00:11:33] Speaker 01:
He did not have firsthand knowledge of what Mr. McBee's mental state was.

[00:11:36] Speaker 01:
He, in fact, didn't even interview him.

[00:11:38] Speaker 01:
But then he also couldn't testify in an expert position about his mental state.

[00:11:43] Speaker 04:
Why couldn't the fact that he testified to being involved in, I think he said, thousands of investigations, is that what he said?

[00:11:54] Speaker 00:
Yes.

[00:11:54] Speaker 04:
Including 20 years with ATF, lots and lots of gun cases.

[00:11:59] Speaker 04:
Why wouldn't that be Rule 702 experienced based testimony?

[00:12:07] Speaker 01:
Because I think he still doesn't have specific knowledge of what Mr. McBee's mental state was.

[00:12:13] Speaker 04:
Well, isn't mental state in most cases, including this one, the product of inferences from circumstantial evidence, and didn't he have the information that everyone else had that the ER

[00:12:29] Speaker 04:
Nurses went out and they found the gun.

[00:12:33] Speaker 04:
So.

[00:12:37] Speaker 01:
Sure.

[00:12:38] Speaker 01:
I do think that he's still encroaching on the jury's role as fact finders.

[00:12:46] Speaker 01:
And so I don't.

[00:12:47] Speaker 04:
You're not making an argument that he's expressing a legal opinion about the elements.

[00:12:54] Speaker 01:
I would in the context of the 704B argument.

[00:12:56] Speaker 01:
But 702, it's more that he's

[00:12:59] Speaker 01:
going outside of his expertise, if that makes sense.

[00:13:03] Speaker 01:
Did that answer your question?

[00:13:05] Speaker 04:
Well, I was just interested because we started with 403, but I thought that 702 was the lead up.

[00:13:10] Speaker 01:
Yes, it was.

[00:13:12] Speaker 01:
And so, yes, it was prejudicial, like I said, because he does not have any knowledge.

[00:13:19] Speaker 01:
And because of his role as an investigative officer with all of this experience, I think a jury would tend to

[00:13:26] Speaker 01:
trust him more than say a kind of run-of-the-mill like a witness who, you know, witnessed a crime but wasn't a law enforcement officer.

[00:13:39] Speaker 03:
Counsel, I have a question going back to the earlier part of your argument.

[00:13:44] Speaker 03:
Did I understand correctly that you thought there was some importance that he use the word elements?

[00:13:50] Speaker 01:
Yes.

[00:13:53] Speaker 03:
All right.

[00:13:57] Speaker 03:
I looked at the jury instructions and I'm going from memory.

[00:14:02] Speaker 03:
A lot of times they use the word elements and elements instruction.

[00:14:07] Speaker 03:
I didn't see that in this case.

[00:14:09] Speaker 03:
In fact, as I looked through all the jury instructions, I thought I only saw one reference to the word element.

[00:14:19] Speaker 03:
Am I wrong in that?

[00:14:21] Speaker 01:
I can't recall off the top of my head.

[00:14:24] Speaker 01:
I think

[00:14:26] Speaker 01:
with the jury instruction.

[00:14:27] Speaker 03:
Well, if you came to call, one of the questions, would that make a difference in your argument that when he says elements, that's not so important.

[00:14:37] Speaker ?:
And it could really mean it has no particular meaning to a juror.

[00:14:43] Speaker 03:
And if there's nothing in the jury instructions, it can just be part of

[00:14:49] Speaker 03:
you know, his investigatory process and that is that, you know, we had everything we needed type of testimony.

[00:14:59] Speaker 03:
Why is that an improper analysis?

[00:15:03] Speaker 01:
I think because even though, even if the jury instructions don't specifically say element, and sorry, I recognize that my time is up.

[00:15:10] Speaker 01:
Would you like me to continue?

[00:15:11] Speaker 03:
Please do.

[00:15:14] Speaker 01:
Sorry, I lost my train of thought.

[00:15:16] Speaker 01:
So just because the jury instruction, if it doesn't say element, it still enumerates what the jury must find in order to get a conviction.

[00:15:23] Speaker 01:
And if you have an ATF agent, whether he is testifying in his expert capacity or not, getting up on the stand and saying, all of these things that you need to find in order to get a conviction are met, whether the term element is used or not is, I think, not irrelevant, but maybe not as important because the idea is that

[00:15:45] Speaker 01:
Everything that he felt was needed for conviction was satisfied.

[00:15:56] Speaker 04:
Thank you.

[00:15:56] Speaker 04:
Counsel, we appreciate your argument.

[00:15:59] Speaker 04:
We'll now hear Ms.

[00:16:06] Speaker 00:
Lama.

[00:16:06] Speaker 00:
Good morning.

[00:16:07] Speaker 00:
May it please the court, counsel?

[00:16:09] Speaker 00:
My name is Lena Lama, and I represent the United States.

[00:16:12] Speaker 00:
I'd like to begin.

[00:16:13] Speaker 00:
with Judge Murphy's last question.

[00:16:15] Speaker 00:
He's exactly right.

[00:16:17] Speaker 00:
On page 132 of volume one of the record, the jury instruction number 14, which presents the elements of the offense, does not use the word elements.

[00:16:28] Speaker 00:
It just says that in order to find the defendant guilty, you must find each of the following beyond a reasonable doubt, and then it lists each of the elements of the offense.

[00:16:38] Speaker 00:
The defense's reliance

[00:16:42] Speaker 00:
on Agent Williams' referenced elements.

[00:16:46] Speaker 00:
The fact that Agent Williams' testimony did not substantively track the language of the jury instructions demonstrates why in this case there was no 704B error at all.

[00:16:59] Speaker 00:
Agent Williams not only did not opine about Mr. McBee's mental state, he did not mention the mental state required, he did not mention Mr. McBee's mental state,

[00:17:12] Speaker 00:
he did not engage in hypotheticals suggesting that the mental state was met, like in some of these cases.

[00:17:18] Speaker 04:
Well, counsel, why wouldn't this point about the jury instruction fit a little more comfortably in either step two or three of plain error analysis?

[00:17:32] Speaker 04:
In other words, yes, the word element may not have been used in the instruction, but

[00:17:39] Speaker 04:
the jury was instructed that you have to find one, two, three, four.

[00:17:44] Speaker 04:
And he did talk about all the elements.

[00:17:48] Speaker 04:
Maybe that doesn't create the tight connection, but it does still raise an issue.

[00:17:56] Speaker 04:
And so why isn't the more comfortable fit be if there was an error, it wasn't plain, or it didn't affect substantial rights?

[00:18:09] Speaker 00:
I think I'll have to echo my colleague from the last case and say this is both.

[00:18:15] Speaker 00:
But here, all of the 704b cases that focus on whether an agent opined about mental state, there was nothing here that suggested that when Agent Williams spoke about the elements, he was talking about mental state at all.

[00:18:35] Speaker 00:
Looking at Agent Williams' testimony, particularly on redirect, I think at page 192 of volume 3 of the record, it's not even clear he understands that the mental state is an element of the offense.

[00:18:49] Speaker 00:
When he says it was on his body, the element of the crime is, and then he trails off and says, the firearm was on his person.

[00:19:01] Speaker 00:
I don't need to fingerprint him because

[00:19:06] Speaker 00:
It was on him.

[00:19:07] Speaker 00:
It was in his possession.

[00:19:10] Speaker 04:
As Ms.

[00:19:11] Speaker 04:
Castillo pointed out, though, the trial was all about knowledge.

[00:19:18] Speaker 04:
That's what both sides are arguing about in front of the jury.

[00:19:22] Speaker 04:
They're getting knowledge thrown at them from day one to the end of trial, closing arguments, everything else.

[00:19:32] Speaker 04:
And why wouldn't, in thinking about this,

[00:19:36] Speaker 04:
in going back to Agent Williams, why wouldn't they say, well, Agent Williams must have thought everything was satisfied?

[00:19:45] Speaker 00:
Because the questions to Agent Williams didn't concern Mr. McBee's knowledge at all, and his answers didn't either.

[00:19:53] Speaker 00:
What they concerned was the adequacy of his investigation and the adequacy of the FBI's investigation.

[00:19:59] Speaker 00:
That portion of Agent Williams' testimony had nothing to do with the question

[00:20:05] Speaker 00:
of Mr. McBee's knowledge.

[00:20:07] Speaker 00:
It had to do with whether they had conducted an adequate investigation.

[00:20:13] Speaker 04:
And because Agent Williams... Don't investigations... I mean, if knowledge is going to be an issue, don't investigations ever look for evidence about knowledge?

[00:20:24] Speaker 00:
And they should.

[00:20:25] Speaker 00:
But the question here, and the context in which Agent Williams was being asked these questions, was the context of, did you have enough evidence

[00:20:35] Speaker 00:
for the investigation, i.e., under a probable cause standard, not under the beyond a reasonable doubt standard that the jury was being asked to apply.

[00:20:44] Speaker 00:
Furthermore, the reliance in Agent Williams' testimony on the word elements and the fact that the jury was never told that knowledge was an element suggests that Agent Williams' testimony could not be read to imply that he had that knowledge because

[00:21:04] Speaker 00:
his reference to elements was not what the jury was instructed they had to find.

[00:21:09] Speaker 02:
Counsel, can I ask, you just said the jury was never told that knowledge was an element.

[00:21:15] Speaker 02:
But the way I've understand the presentation of both parties is that knowledge was really the only thing at issue.

[00:21:22] Speaker 02:
So whether they were told formally it was element, didn't the jury know that really the only question they had to decide is whether the gun that was found on Mr. McBee, whether he knew it was there?

[00:21:32] Speaker 00:
Absolutely.

[00:21:33] Speaker 00:
And to the extent that I suggested that they weren't told that they had to find his knowledge, that was not what I intended to say.

[00:21:40] Speaker 00:
What I meant was that the word elements was not used

[00:21:43] Speaker 00:
when they were told they had to find Mr. McBee's knowledge of the firearm.

[00:21:47] Speaker 00:
And you're absolutely right, they were told over and over, and particularly in the government's closing, that the only question really remaining for them was whether Mr. McBee knew.

[00:21:59] Speaker 00:
And moving forward to prong three, the substantive rights analysis, here, very differently from Mariboy, both the fact that Agent Williams' testimony did not

[00:22:12] Speaker 00:
track the language of the jury instructions and the fact that the government never mentioned Agent Williams' testimony about the fact that the elements were met, but rather focused on all of the other evidence presented at trial in reviewing, both in first close and in second close, the evidence that showed both direct and circumstantial that Mr. McBee would have known about the gun

[00:22:41] Speaker 00:
that was concealed in his pants.

[00:22:43] Speaker 00:
In fact, in that second close, counsel specifically referenced the gun, and there's a picture of that gun in our supplemental record on appeal.

[00:22:54] Speaker 00:
And counsel asked the jury to find that anyone who had a gun that size in their pants and was conscious as Ms.

[00:23:04] Speaker 00:
Mitchell

[00:23:05] Speaker 00:
testified Mr. McBee was for most of their trip to the Claremore Indian Hospital would have known that they had that gun in their pants.

[00:23:16] Speaker 00:
And the government's focus on that direct and circumstantial evidence of Mr. McBee's knowledge rather than on Agent Williams passing comments in the context of the adequacy of his investigation shows that in this case, very differently from Mary Boy,

[00:23:32] Speaker 00:
Even if there was an error and the error was plain, which it was not under this court's case law, even if it were, this is not a case where any error affected Mr. McBee's substantial rights.

[00:23:47] Speaker 04:
Let's stay with step three for just a minute.

[00:23:51] Speaker 04:
In assessing substantial rights, is it appropriate for this court to consider that the jury notes

[00:24:02] Speaker 04:
suggested that this was a close call.

[00:24:05] Speaker 00:
Absolutely.

[00:24:05] Speaker 00:
This was a close case, and the court can consider that it was a close case.

[00:24:09] Speaker 00:
But given the context of Agent Williams' testimony and the government's remarks in closing, to the extent that this close call was resolved by the jury ultimately in a finding of guilt, nothing in the record suggests

[00:24:26] Speaker 00:
that Agent Williams' testimony was the thing that pushed them over the edge.

[00:24:30] Speaker 00:
Rather, if the context suggests, it was the modified Allen instruction.

[00:24:36] Speaker 04:
Why wouldn't it be possible for the juries?

[00:24:39] Speaker 04:
Well, they found this gun.

[00:24:43] Speaker 04:
That's really the whole case.

[00:24:46] Speaker 04:
They found this gun where they did.

[00:24:51] Speaker 04:
Both sides argued knowledge to a fairly well.

[00:24:54] Speaker 04:
We're not really sure.

[00:24:56] Speaker 04:
Well, you know, we had this guy Williams who's done thousands of these cases.

[00:25:01] Speaker 04:
He must know what he's doing.

[00:25:02] Speaker 04:
And he said all the elements are met.

[00:25:04] Speaker 00:
But he never said or even suggested that Mr. McBee knew.

[00:25:09] Speaker 00:
In fact, it wasn't clear that Agent Williams knew that Mr. McBee had to have known that the gun was there.

[00:25:14] Speaker 00:
He said it's in his possession.

[00:25:17] Speaker 00:
He addressed the element of possession, not the element of knowing possession.

[00:25:20] Speaker 04:
And so there was... No, no, he said elements.

[00:25:22] Speaker 04:
He said all the elements are met.

[00:25:24] Speaker 00:
Yes, and then he said, the element of the crime is, it's on his person.

[00:25:28] Speaker 00:
That's not the element of the crime.

[00:25:29] Speaker 00:
And the jury was not told that they had to find the element.

[00:25:34] Speaker 04:
He didn't say it once, he said it twice.

[00:25:35] Speaker 00:
Oh, he said it at least three times.

[00:25:37] Speaker 00:
Oh, three times.

[00:25:38] Speaker 00:
Because he said it on redirect as well.

[00:25:41] Speaker 00:
He was eager to help, but unfortunately, it isn't clear from the record that he necessarily understood that he was talking about knowledge, and certainly,

[00:25:53] Speaker 00:
Neither the questions nor his answers implicated the core concerns of Rule 704B, that he stated or even impliedly stated that the defendant had the requisite mental state here.

[00:26:11] Speaker 00:
Rather, all of the discussion, particularly in the government's closing, was all of the circumstantial evidence that showed that Mr. McBean knew about the gun in his pants.

[00:26:23] Speaker 00:
to the extent that after sending those notes to the court, the jury ultimately found that Mr. McBee knew is much more likely, under these facts, to have been based on that circumstantial evidence presented, as opposed to Maryboy, where the government emphasized the challenge testimony.

[00:26:48] Speaker 00:
particularly by wrapping up their first close by talking about that testimony as a way of showing the defendant's extreme recklessness in that case.

[00:26:57] Speaker 02:
Counsel, you mentioned this trial was a close call, and he was having a defendant who was stipulated to having a prior felony conviction and knowing that he was a prior felony conviction, a prohibited person, and the gun on his person.

[00:27:14] Speaker 02:
I'm just trying to understand

[00:27:16] Speaker 02:
the closeness of the call in terms of the theory of defense that was presented.

[00:27:22] Speaker 02:
Was the thrust of the defense that the government just can't prove he knew because by the time the gun was found was unconscious?

[00:27:28] Speaker 02:
Or was it that the mother's friend had planted the gun or sort of helped me understand the context?

[00:27:35] Speaker 00:
And like you, I was not at the trial.

[00:27:37] Speaker 00:
But from the defense closing argument, it appears that the thrust of the defense case was,

[00:27:46] Speaker 00:
that Ms.

[00:27:47] Speaker 00:
Mitchell somehow planted this gun on Mr. McBee.

[00:27:50] Speaker 00:
And the government's second clause addresses this, talks about how unlikely it was that Ms.

[00:27:58] Speaker 00:
Mitchell, an elderly woman who was reluctant to testify against the son of her good friend, who was volunteering to take this man to the Claremore Indian Hospital

[00:28:10] Speaker 00:
who testified that had she known he had a gun, would not have let him in her car, the absolute incredibility of the defense theory.

[00:28:25] Speaker 00:
And so ultimately, in deciding that the circumstantial evidence, both the testimony of Ms.

[00:28:31] Speaker 00:
Mitchell, but also the testimony of Brandy Eubanks and Isaac Pincer, the nurses who found the gun, who transferred him

[00:28:37] Speaker 00:
Mr. McBee from Ms.

[00:28:39] Speaker 00:
Mitchell's car to the gurney.

[00:28:42] Speaker 00:
The gun didn't come loose.

[00:28:43] Speaker 00:
The gun was firmly lodged in Mr. McBee's pants when they found it.

[00:28:47] Speaker 00:
In citing all of that evidence, it is far more likely that in concluding that Mr. McBee knew about the large gun tucked into his pants, that the jury credited those pieces of testimony rather than Agent Williams passing reference to the elements of the offense.

[00:29:06] Speaker 04:
Could you briefly speak to the Rule 702 argument?

[00:29:10] Speaker 04:
I didn't see much in your brief about that.

[00:29:12] Speaker 00:
And I will say, I don't think the question here is whether Agent Williams' testimony went beyond his expertise, because the questions he was being asked were about the adequacy of his investigation.

[00:29:26] Speaker 00:
And so they were based on his expertise as an experienced ATF agent who had conducted hundreds of these kinds of investigations.

[00:29:36] Speaker 00:
To the extent that he was testifying about the legal standard of the elements of the offense, that may have been improper legal testimony, but that wasn't the basis of the objection.

[00:29:48] Speaker 00:
And here, certainly it was an error, let alone plain error, to allow Agent Williams to testify about the reasons he thought his investigation, he did not need to do additional investigation, like additional forensic testing.

[00:30:03] Speaker 00:
And for that reason,

[00:30:05] Speaker 00:
even if there were a Rule 403 error, that error didn't affect Mr. McBee's substantial rights.

[00:30:16] Speaker 00:
If there are no further questions.

[00:30:21] Speaker 04:
Hearing none.

[00:30:22] Speaker 00:
Thank you, Your Honors.

[00:30:24] Speaker 04:
Thank you, Council.

[00:30:25] Speaker 04:
The case will be submitted and Council are excused.

[00:30:30] Speaker 04:
Thank you for your arguments.