[00:00:00] Speaker 04:
Our first case for argument this morning is United States versus Orontia.

[00:00:07] Speaker 04:
And counsel, we're ready for you when you're ready to present.

[00:00:10] Speaker 04:
May I approach the election, Your Honor?

[00:00:12] Speaker 04:
Yes, please.

[00:00:25] Speaker 00:
May it please the court.

[00:00:27] Speaker 00:
My name is Brock Benjamin, and I am here to represent Oscar Aranthia.

[00:00:31] Speaker 00:
Before I begin, I have two preliminary matters, one of which is I re-urge my hope that I have every time I'm here to reserve some time for rebuttal, and I will do my best to do that.

[00:00:40] Speaker 00:
But the second, Your Honor, is I have advised the United States

[00:00:44] Speaker 00:
My reply brief, Your Honor, I think was a little ambitious.

[00:00:46] Speaker 00:
And the first issue in my reply brief, I think, violates the cardinal rule of not raising an issue in a reply brief.

[00:00:55] Speaker 00:
And so I've notified the United States, Your Honor.

[00:00:57] Speaker 00:
Having said that, I'm going to begin with issue three, which is the deprivation of the video.

[00:01:03] Speaker 02:
Port Director Tony Hall was a witness who in... Before you start, depending on which issue you're in,

[00:01:11] Speaker 02:
abandoning, is it the argument that section 1519 is unconstitutional as applied?

[00:01:20] Speaker 00:
No, Your Honor, is the count two had insufficient evidence and the non-unanimity, non, I hate this word, non-unanimity instruction is structural error.

[00:01:29] Speaker 00:
Okay.

[00:01:31] Speaker 00:
In the reply brief, Your Honor.

[00:01:32] Speaker 00:
Thank you.

[00:01:37] Speaker 00:
Director Hall annihilated Oscar Arante

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And this was mainly because, and I like to say my close friend, Marissa Ong, is a very advocate, strong advocate, and she used, and she, the government, used him as a sword and a shield.

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Director Hall's testimony and participation falls into three of the issues that Oscar Arante is appealing.

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I had filed a motion for remand, first time I've done that, and I had attached it to exhibit A,

[00:02:07] Speaker 00:
that discusses the June 4, 2020 incident with Witness 2 or Badone.

[00:02:13] Speaker 00:
And Hall and the video, I think, and can argue, are exculpatory.

[00:02:17] Speaker 00:
And I had asked for a remand.

[00:02:19] Speaker 00:
That didn't happen, Your Honor.

[00:02:20] Speaker 00:
We're here.

[00:02:21] Speaker 00:
The United States has responded.

[00:02:23] Speaker 00:
And I'm wondering if I proceed on that, Your Honor, or if the court has any guidance for that.

[00:02:29] Speaker 00:
No guidance.

[00:02:31] Speaker 00:
Just please proceed.

[00:02:31] Speaker 00:
Thank you, Your Honor.

[00:02:33] Speaker 00:
And Your Honor, at this point in time,

[00:02:37] Speaker 00:
and having briefly discussed this with the United States, I think that's almost fully briefed.

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Port Director Hall stated that he, in that letter, states that he reviewed the video of the incident and was unable to hear the comments described by Mrs. Barone.

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He stated that he observed the use of force as applied by Officer Orantia, and Orantia was not disciplined about that.

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Additionally, he says that when he talks about the badging incident, as the United States mentioned it,

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He says that Orrantio was noncompliant.

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This is, I think, central to the idea that the United States uses Hall and argues at a different issue that there was a specific contradiction.

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However, this testimony shouldn't have come in without the video that was destroyed.

[00:03:28] Speaker 04:
And if we look at the timeline... Did the defendant open the door by testimony and direct out?

[00:03:33] Speaker 00:
Your honor, I don't think so.

[00:03:34] Speaker 00:
And Joe Schadek, the defense counsel, specifically said Oscar Arantia and the letter that Exhibit A says that he was non-compliant.

[00:03:42] Speaker 00:
There's nothing about dishonesty or that he was disciplined for that.

[00:03:47] Speaker 00:
And so opening the door is always a careful line that the counsel walks, but... Are we talking about Director Hall?

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Director, your honor, Tony Hall.

[00:03:57] Speaker 00:
And so, your honor, I would suggest that no, because I think it was those issues and those impeachment issues, and I've referred to them as the 4404B issues.

[00:04:06] Speaker 00:
The court goes back and forth, and I think the government clearly intended to argue them as 404B from its briefing and its argument during trial.

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But the government used the Barone and Tony Hall incident as a sword and a shield where it

[00:04:22] Speaker 00:
chose, and the government had stated that we did not charge this incident.

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And frankly, the reason we didn't charge it, because we didn't have a video like we do for the incident with John Doe.

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And if the court will recall, that incident with John Doe was a year prior to the incident that they don't have the video with.

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But so they're able to argue.

[00:04:42] Speaker 02:
But there haven't been criminal proceedings against your client yet, right?

[00:04:46] Speaker 00:
Correct, Your Honor.

[00:04:47] Speaker 00:
There had been no.

[00:04:48] Speaker 02:
And so they tape over every 90 days

[00:04:51] Speaker 00:
Correct.

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That was the testimony, Your Honor.

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The issue here is that they produced some videos and not the video of Barone.

[00:05:01] Speaker 00:
And so the United States came in and said that we don't have that video, but yet we're going to say that this incident happened and leave an impression that, quite frankly, Mr. Rodanthia was probably charged in a separate incident or something out of that when there was no discipline that was imposed by that.

[00:05:17] Speaker 04:
What is the answer to Judge McHugh's question as far as 90 days?

[00:05:21] Speaker 04:
You said there's testimony.

[00:05:22] Speaker 04:
We take that as so, don't we?

[00:05:24] Speaker 00:
Your honor, that comes from Director Hall, but I think that that testimony and the writing over of the video, your honor, I think is something that goes into the good faith, bad faith, trombetta argument as to whether or not they should be able to use that incident with the video.

[00:05:42] Speaker 00:
If they taped over it, the CBP is still the government.

[00:05:44] Speaker 04:
Well, if it's a 90-day policy and there's only so many tapes or whatever else,

[00:05:52] Speaker 04:
How is that bad faith?

[00:05:54] Speaker 00:
Because we still have the video from the initial incident, and we have the, Your Honor, and that video, we only have that because of civil litigation.

[00:06:02] Speaker 00:
And so if we're preserving some videos for civil litigation, but yet we're going to pick and choose the videos, I think that that is, I think that, Your Honor, that's something that bothers, I think as a defense attorney, that's something that bothers us because it does, I think, go into that.

[00:06:17] Speaker 01:
Doesn't that really support the government's position, though, that they were

[00:06:21] Speaker 01:
preserving it because of litigation and routinely destroying things they didn't need for litigation purposes?

[00:06:28] Speaker 00:
Yes, Your Honor.

[00:06:28] Speaker 00:
But then the argument is that they don't get to use the other incident, imply that he was disciplined, and not have the video that they had reviewed and decided not to discipline Oscar Arantheon.

[00:06:42] Speaker 01:
And just so I can clarify, he was not disciplined for any of the prior incidents, right?

[00:06:48] Speaker 00:
Your Honor, and I have to split that.

[00:06:51] Speaker 00:
Subsequent.

[00:06:52] Speaker 00:
Because of the, he was not disciplined for the two use of force incidents that were brought in by 404.

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And the Badone incident is the one that is a year later that he was not disciplined for.

[00:07:03] Speaker 00:
Yes, Your Honor.

[00:07:03] Speaker 01:
And I couldn't find any evidence in the record where that was elicited, the fact that he was not disciplined.

[00:07:13] Speaker 00:
Your Honor, it's my understanding that they were

[00:07:15] Speaker 00:
essentially told that all they were going to be able to bring in was the 404B issue and not go into, for lack of a better term, administrative matters.

[00:07:23] Speaker 00:
But the issue is that leaves the hanging fruit out there that it's an implication a jury is going to draw, I believe.

[00:07:32] Speaker 02:
Let me stop you there.

[00:07:34] Speaker 02:
You argued trombetta.

[00:07:36] Speaker 02:
For that to even apply, we have to know that the video would have been exculpatory.

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And we don't know that.

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So it seems to me that you're under, if anything, you would be under young blood, which would require a showing of bad faith.

[00:07:55] Speaker 02:
And I just don't think you have that.

[00:07:58] Speaker 00:
Your Honor, respectfully, I would suggest that we're under Trombetta because the issue here was the government argued that they couldn't hear things on this video.

[00:08:07] Speaker 00:
Director Hall couldn't hear things on the video of Badone.

[00:08:09] Speaker 00:
And so that would be exculpatory because it would directly contradict and lead to, the Brady language is what comes to mind, it would lead to a suggestion that there was less culpability than what was suggested by the government.

[00:08:23] Speaker 02:
He said he couldn't hear it.

[00:08:26] Speaker 02:
He didn't think it wasn't said.

[00:08:27] Speaker 02:
I mean, we watch a lot of videos and, you know, there's lots of things that he can't hear.

[00:08:33] Speaker 00:
And the government in the false, in count two, Your Honor, argued that Mr. Rowanty, or Officer Rowanty, was making false representations because they couldn't hear things.

[00:08:45] Speaker 00:
It's the same exact couldn't hear statement that, or couldn't hear type of testimony that was being alleged.

[00:08:53] Speaker 00:
The issue one, Your Honor, sufficiency on knowingly making a false statement.

[00:09:00] Speaker 00:
Jackson v. Virginia says that reversals needed were no rational jury could find beyond reasonable.

[00:09:05] Speaker 02:
Well, let me stop you there.

[00:09:08] Speaker 02:
I think you've got a preservation issue with this particular claim.

[00:09:12] Speaker 02:
In the district court, you didn't argue about whether he knowingly made the statements.

[00:09:20] Speaker 02:
In the district court, you argued

[00:09:22] Speaker 02:
that there were no false statements made at all.

[00:09:27] Speaker 02:
It seems to me that's a different argument on appeal.

[00:09:33] Speaker 02:
Why should we consider it?

[00:09:35] Speaker 00:
Your Honor, in direct response to the fact that knowingly it was not raised as part of the Rule 29 argument, I would point the court to page of the record, Volume 4, 686, where Mr. Shattuck says, I would submit to the court those issues are not falsifications but omissions.

[00:09:49] Speaker 00:
And the government then specifically in the conversation moves to whether there was knowingly falsified or made a false entry in a record or document.

[00:09:57] Speaker 00:
I think it was, I think that was the heart of Mr. Shattuck's argument.

[00:10:01] Speaker 00:
And so that goes back to the... That's what the government said.

[00:10:06] Speaker 02:
What did you argue?

[00:10:08] Speaker 02:
The district court didn't rule on that.

[00:10:10] Speaker 00:
Your Honor, I think the district court ruled with the government and suggested that they, because they'd argued it, they supported the knowingly.

[00:10:18] Speaker 00:
That was Mr. Shattuck's, the heart of his argument.

[00:10:20] Speaker 00:
He didn't use the word knowingly.

[00:10:22] Speaker 00:
And respectfully, I don't know to argue the mens rea, one has to use the term knowingly.

[00:10:27] Speaker 00:
But Ms.

[00:10:28] Speaker 00:
Ong jumped on that, because that's what she understood Mr. Shattuck was raising, is the contention.

[00:10:38] Speaker 00:
Falsification, or the falsification there, I cut and pasted many of the statements for Mr. Granillo, pulled his shoulders back and struck out his chest towards me, which is the statement in the report.

[00:10:50] Speaker 00:
The government argued that Director Harvey testified you can't see that in the video.

[00:10:54] Speaker 00:
This was because the examples that I placed at page 29 in the brief

[00:10:59] Speaker 00:
are that the United States offered us examples of falsifications.

[00:11:03] Speaker 00:
They showed that they're not, by definition, false, but they're either omissions or misleading.

[00:11:08] Speaker 00:
And Agent Ramos, for the government, even testified about perceptions and the dark video.

[00:11:15] Speaker 00:
Further, Director Karman discussed the report with his supervisors, recommended discipline, was told not to impose it.

[00:11:23] Speaker 00:
And so these are all, I think, facts that go directly to the idea that these were just blatant knowing misrepresentations by Agent Arnautia, as opposed to these were things that were

[00:11:34] Speaker 00:
I think very effectively argued by the United States, but I don't think that that gets us past the idea that what you can convince a jury of legally binds this court or the district court or this court to find that those were sufficient or that they were proper and that she didn't go out or the government didn't go outside of where they were at with regard to the mens rea.

[00:12:01] Speaker 00:
Your honors, I would suggest is also preserved, because that's the same exact quotation for Mr. Shattuck, volume 4, 685 to 687, where he states, I would submit to the court that those issues are not falsifications but omissions.

[00:12:16] Speaker 00:
And then the response from the government is that those are

[00:12:20] Speaker 00:
knowingly made and not omissions or anything else.

[00:12:25] Speaker 04:
Council, I will alert you.

[00:12:26] Speaker 04:
You're at the point where you said you wanted to reserve for rebuttal.

[00:12:29] Speaker 04:
It's your choice.

[00:12:30] Speaker 04:
You can continue to go on.

[00:12:31] Speaker 04:
I'm just providing you that as a courtesy.

[00:12:34] Speaker 00:
Thank you, Your Honor.

[00:12:34] Speaker 00:
I appreciate that.

[00:12:36] Speaker 00:
Does the panel have any questions based on where I'm at at this point?

[00:12:40] Speaker 00:
Thank you, Your Honor.

[00:12:41] Speaker 00:
May I reserve the remaining time?

[00:12:43] Speaker 00:
Yes.

[00:13:16] Speaker 03:
I'm James Braun on behalf of the United States.

[00:13:22] Speaker 03:
The defendant raises by my count seven issues, five in his opening brief and two more for the first time in his reply brief.

[00:13:32] Speaker 03:
He's withdrawn one of those, but we would argue that all but one of the arguments he raises should be considered waived.

[00:13:40] Speaker 03:
The first two issues, sufficiency of the evidence on count two,

[00:13:44] Speaker 03:
And the as-applied constitutional challenge to Section 1519 are waived because they were not raised below.

[00:13:51] Speaker 03:
And the defendant fails to argue plain error on appeal.

[00:13:55] Speaker 03:
Now, to follow up on Judge McHugh's question about whether this was preserved,

[00:14:02] Speaker 03:
the knowingly sufficiency argument, that simply was not the defendant's argument below.

[00:14:10] Speaker 03:
What he argued is that the evidence proved only that Arantia had omitted information from his report and that those issues were not falsifications.

[00:14:19] Speaker 03:
That's Appendix 4, page 686.

[00:14:23] Speaker 03:
That has nothing to do with knowingly.

[00:14:28] Speaker 03:
He didn't use the word knowingly.

[00:14:29] Speaker 03:
That was not the issue.

[00:14:31] Speaker 03:
And even if it was preserved, this court can easily conclude that the evidence was sufficient on the knowingly element.

[00:14:39] Speaker 03:
This isn't a case where information was relayed to the defendant and then he wrote it into a report so he could argue, well, I didn't know it was false.

[00:14:45] Speaker 03:
I didn't even see it.

[00:14:46] Speaker 03:
These were actions that he committed himself, things that he observed himself.

[00:14:51] Speaker 03:
And the government established that he had a motive to falsify the report, to cover up for his unreasonable use of force.

[00:15:01] Speaker 03:
And so that simply wasn't even an issue with trial, and this court can easily dispose of that issue.

[00:15:06] Speaker 03:
Now, in his reply brief, the defendant seems to expand on his sufficiency argument by raising, again, for the first time, a challenge to the deliberate ignorance portion of the jury instruction defining the word knowingly.

[00:15:19] Speaker 03:
And that's instruction 24.

[00:15:24] Speaker 03:
He has not withdrawn that argument, and it didn't come up during his opening argument this morning.

[00:15:30] Speaker 03:
But it's important to point out that under Lafler, this court generally doesn't consider issues raised for the first time in a reply brief.

[00:15:38] Speaker 03:
And it would be especially inappropriate here, because aside from being improperly raised for the first time, any possible error in this instruction was invited.

[00:15:47] Speaker 03:
This exact instruction was contained in the party's joint proposed instructions.

[00:15:51] Speaker 03:
The defendant didn't include that in his appendix, but that's document 97, instruction 8.

[00:15:57] Speaker 03:
And during the instructions conference at trial, after going through objections to other instructions, the court asked if there was anything else on the proposed instructions from the defense.

[00:16:07] Speaker 03:
And defense counsel responded no, and he acknowledged that they had agreed to these instructions, which would include the instruction that had that

[00:16:15] Speaker 03:
deliberate ignorance portion of the knowingly instruction.

[00:16:19] Speaker 03:
And so we would argue it's invited error, if anything.

[00:16:22] Speaker 03:
This court shouldn't even consider it under Laffer.

[00:16:26] Speaker 03:
And then finally, it's just perfunctorily briefed.

[00:16:30] Speaker 03:
And it's another reason not to consider it for the first time in a reply brief.

[00:16:38] Speaker 03:
Now, moving to the next issue, the defendant argues that the cumulative effect of four

[00:16:43] Speaker 03:
Rule 404b incidence was unduly prejudicial.

[00:16:48] Speaker 03:
This issue is waived because it's the defendant's burden to point to where in the record he made a cumulative 403 objection.

[00:16:54] Speaker 03:
He hasn't done that, and he doesn't argue plain error.

[00:16:58] Speaker 03:
But it's also without merit, because only two of these incidents were actually introduced under Rule 404b.

[00:17:04] Speaker 03:
And the court did do a proper Rule 403 analysis as to those incidents.

[00:17:11] Speaker 03:
The other two incidents were introduced

[00:17:15] Speaker 03:
to impeach the defendant after the defendant testified.

[00:17:21] Speaker 01:
Can I stop you there?

[00:17:22] Speaker 01:
Yes.

[00:17:23] Speaker 01:
You just touched the issue which is of most concern to me.

[00:17:26] Speaker 01:
It's not two questions.

[00:17:28] Speaker 01:
One is how did Director Hall's testimony actually impeach what defendant testified to?

[00:17:35] Speaker 01:
And when he offered the opinion basically that defendant is a liar,

[00:17:41] Speaker 01:
How is that harmless error, especially on count two, where the issue is about his intent in knowing falsification?

[00:17:51] Speaker 03:
Well, Judge Rattle, if you look at the defendant's testimony towards the end, the defendant is affirmatively asked about this girlfriend incident, as we've called it in the briefing.

[00:18:02] Speaker 03:
And he affirmatively testified that he had permission on a prior occasion to have his girlfriend visit and that he assumed he had permission on this occasion.

[00:18:13] Speaker 03:
That's at page 898 of

[00:18:15] Speaker 03:
the appendix.

[00:18:17] Speaker 03:
So that's something that's brought up by the defendant on his own.

[00:18:20] Speaker 03:
Now, at that point, as Judge Phillips noted, that's opening the door to questions about that incident.

[00:18:28] Speaker 03:
It's opening the door to affirmative evidence about that incident, totally aside from impeaching him with that he's lying about that during his testimony.

[00:18:38] Speaker 03:
So this evidence does both.

[00:18:40] Speaker 03:
It affirmatively responds to something that he opened the door to, and it impeaches him

[00:18:45] Speaker 03:
Because what Director Hall testifies to is that no, his investigation revealed that the defendant had not had permission on a prior occasion.

[00:18:55] Speaker 03:
And so therefore, that's being untruthful.

[00:18:58] Speaker 03:
And that was proper impeachment of the defendant's testimony that he did have permission on a prior occasion.

[00:19:04] Speaker 03:
So for both of those reasons, this was proper.

[00:19:07] Speaker 03:
The defendant opened the door to it by testifying to it on direct, that exact incident, that exact

[00:19:13] Speaker 03:
issue relating to that incident, and it impeached him.

[00:19:17] Speaker 03:
And that's really all Director Hall testified to.

[00:19:19] Speaker 03:
He didn't testify to anything about the charged incident.

[00:19:23] Speaker 02:
And so to the extent that...

[00:19:31] Speaker 03:
The court said it introduced that evidence for two reasons.

[00:19:34] Speaker 03:
One was 608 and one was impeachment, which we're arguing is proper as under the doctrine of specific contradiction, contradicting what the defendant testified to.

[00:19:45] Speaker 02:
OK, so you can see that you can't use specific incidents of extrinsic evidence on a 608.

[00:19:55] Speaker 03:
Right.

[00:19:56] Speaker 03:
That is true.

[00:19:56] Speaker 03:
But there's the independently sufficient reason that the court also cited, which was impeachment, which would be this court's doctrine of specific contradiction.

[00:20:04] Speaker 03:
The defendant hasn't even addressed that at all.

[00:20:08] Speaker 03:
And so under this court's case law, by not addressing an independent sufficiently sufficient reason, it's either waived or the defendant just has not addressed it.

[00:20:22] Speaker 02:
Now.

[00:20:24] Speaker 02:
Well, he didn't waive the 6.08.

[00:20:25] Speaker 02:
issue until the reply brief.

[00:20:31] Speaker 02:
In that opening brief, the only argument was under 404.

[00:20:37] Speaker 02:
404 and 403.

[00:20:39] Speaker 03:
Right, when he's arguing the cumulative 403, cumulative prejudice.

[00:20:43] Speaker 03:
But he does raise 608 in a similar context as his final issue with regard to the exhibit 31.

[00:20:52] Speaker 03:
But again,

[00:20:55] Speaker 03:
Exhibit 31 wasn't introduced.

[00:20:57] Speaker 03:
And even in his reply, the defendant still intimates or even explicitly says that it was introduced.

[00:21:02] Speaker 03:
It simply was not.

[00:21:03] Speaker 03:
The district court said, this isn't coming in.

[00:21:06] Speaker 03:
And it didn't come in.

[00:21:07] Speaker 03:
What came in was Director Hall's affirmative testimony about that incident and the discipline related to that incident.

[00:21:15] Speaker 03:
And so to the extent the defense is arguing that that exhibit was improperly introduced as extrinsic evidence under 608B, that's not accurate.

[00:21:23] Speaker 03:
It didn't come in for that reason.

[00:21:25] Speaker 03:
And now when Director Hall's information originally came up, it was when the defendant was still on the stand.

[00:21:34] Speaker 03:
And so the idea of 608B was still a live issue.

[00:21:38] Speaker 03:
Orantia could be cross-examined with that information.

[00:21:43] Speaker 03:
And that would have been proper.

[00:21:44] Speaker 03:
That would not have been extrinsic evidence.

[00:21:47] Speaker 03:
Instead, the government didn't ask him about it on cross, asked about the badging incident that he had also raised, and then brought in Director Hall's testimony affirmatively.

[00:21:58] Speaker 03:
And at that point, the defendant didn't object on 608 grounds, didn't object in that regard.

[00:22:06] Speaker 03:
It's waived, but we also just don't even need to go there because of the independent reason being the specific contradiction.

[00:22:13] Speaker 03:
And it did specifically contradict something that the defendant himself testified to.

[00:22:29] Speaker 03:
If I could just have a moment.

[00:22:33] Speaker 03:
cross out some stuff when I found out the defense was withdrawing the unanimity instruction argument.

[00:22:43] Speaker 01:
Would you address the harmless error if Director Hall's testimony came in improperly?

[00:22:48] Speaker 03:
Yes.

[00:22:50] Speaker 03:
It would definitely be harmless because he didn't testify again about the charged incident.

[00:22:56] Speaker 03:
And the jury heard a lot of evidence, saw the video of the charged incident, heard from Mr. Grinio and Mr. Grinio's, I think it was his wife's cousin.

[00:23:09] Speaker 03:
There was substantial evidence that the jury could base the verdict on for counts one and two.

[00:23:15] Speaker 03:
Really all Hall's testimony did was

[00:23:17] Speaker 03:
relate to this uncharged incident that the defendant himself had testified to, and it was certainly harmless in that regard.

[00:23:25] Speaker 04:
Was Mr. Hall listed as a witness to testify to that before the defendant testified on direct?

[00:23:32] Speaker 03:
I don't know off the top of my head if he was listed on the witness list or if that... Does it matter?

[00:23:37] Speaker 03:
It shouldn't matter, no.

[00:23:39] Speaker 03:
I mean, because he ended up just testifying in rebuttal, and he rebutted that testimony that the defendant himself had put on.

[00:23:47] Speaker 03:
And so if anything, that just makes it more harmless, the fact that he was rebutting something the defendant opened the door to.

[00:23:54] Speaker 04:
And rebuttal meaning during the government's case or during rebuttal?

[00:23:57] Speaker 03:
During the government's rebuttal.

[00:24:02] Speaker 03:
So the government had put on its case, rested, the defendant testified, and then the government called Director Hall in rebuttal after the defendant rested.

[00:24:11] Speaker 03:
Understood.

[00:24:13] Speaker ?:
OK.

[00:24:15] Speaker 03:
Now, as far as the Trombetta Youngblood violation, as Judge McHugh noted, this is not Trombetta.

[00:24:24] Speaker 03:
The defendant, the best he can do is speculate as to what these videos would have shown.

[00:24:29] Speaker 03:
And so this is classic Youngblood where the defendant has the burden to show bad faith.

[00:24:36] Speaker 03:
He has not shown that the district court clearly erred in finding no bad faith.

[00:24:42] Speaker 03:
And in fact,

[00:24:43] Speaker 03:
Under this court's Smith case, destroying evidence pursuant to standard policy generally precludes a finding of bad faith in the absence of compelling evidence to the contrary.

[00:24:56] Speaker 03:
And the defendant points to no compelling evidence whatsoever.

[00:25:00] Speaker 03:
These videos were written over long before a criminal investigation of the defendant ever began.

[00:25:07] Speaker 03:
And as a practical matter, what we know is

[00:25:12] Speaker 03:
that Director Hall said that he saw the video, he saw the use of force, but he couldn't hear what was said.

[00:25:21] Speaker 03:
And we don't know why he couldn't hear.

[00:25:24] Speaker 03:
Was it because it was just fuzzy?

[00:25:26] Speaker 03:
I mean, there's, as Judge McHugh noted, lots of videos where you just can't hear what's going on.

[00:25:32] Speaker 03:
I believe the defendant himself testified to videos of other incidents where you couldn't hear very well.

[00:25:38] Speaker 03:
So that's not exculpatory in and of itself.

[00:25:41] Speaker 03:
He doesn't say why they couldn't hear.

[00:25:43] Speaker 03:
But he says he did see the use of force.

[00:25:45] Speaker 03:
But the defendant could have asked Director Hall about that when Director Hall testified.

[00:25:50] Speaker 03:
He made no effort to do that.

[00:25:51] Speaker 03:
He could have asked Director Hall, what did you see?

[00:25:54] Speaker 03:
What did you hear?

[00:25:56] Speaker 03:
He made no effort to do that.

[00:25:57] Speaker 03:
And so that undercuts any due process claim that the defendant makes on appeal.

[00:26:05] Speaker 03:
Unless the court has any additional questions, we would ask the court to affirm.

[00:26:09] Speaker 04:
In this sort of circumstance, where there's been an allegation, can the accused obtain a copy of the video for his or her own purposes?

[00:26:19] Speaker 04:
In other words, anticipating this might be a problem, I want a copy of that video.

[00:26:25] Speaker 03:
I would imagine that a subject could request a copy of the video, but I don't know for sure.

[00:26:32] Speaker 03:
I don't know how it came up in this case where the video of the charged incident was preserved.

[00:26:39] Speaker 03:
We know that Mr. Grinio went to the sheriff's department, made a complaint.

[00:26:43] Speaker 03:
He went to the hospital.

[00:26:44] Speaker 03:
The ACLU actually filed something, and I would imagine that's part of what caused this to be preserved.

[00:26:52] Speaker 03:
It's not in the record how that played out or what the process would be.

[00:26:57] Speaker 04:
Any further questions?

[00:27:00] Speaker 04:
Council, thank you.

[00:27:01] Speaker 04:
Thank you.

[00:27:02] Speaker 04:
Mr. Benjamin, you have some rebuttal time.

[00:27:14] Speaker 00:
Your Honor, and let me address the Court's last question.

[00:27:18] Speaker 00:
I don't know if it was asking if Mr. Granillo or if Mr. Orontia could obtain a copy of the video.

[00:27:23] Speaker 00:
The way that I understood the Court's question is that the best of Mr. Orontia, I think, could do in my experience is he could ask for something to be preserved.

[00:27:29] Speaker 00:
But I would suggest that based upon what had happened and what had been recorded in Exhibit A to my motion for remand, that he wouldn't have any reason to suspect that because he was not disciplined because they talked about him having a use force and that hadn't been observed.

[00:27:44] Speaker 00:
Specifically, with issues with count two and whether those were preserved or raised, Your Honor, I would suggest that that was raised in a motion to abate because Thompson comes up with that.

[00:27:59] Speaker 00:
I would point the court to the United States versus Burke.

[00:28:02] Speaker 00:
633 after 984, 10th Circuit 2011, and the United States versus Hamilton, 587 after 1199, 2009, that talk about the court can review those, and that wasn't something that, that was a change in the law that couldn't have been anticipated based on what was at.

[00:28:20] Speaker 00:
Judge Brattle had asked me and the United States about the defense affirmatively opening the door to the testimony, and I think the issue here in the government

[00:28:33] Speaker 00:
It has given me something for future trials with a specific contradiction idea.

[00:28:37] Speaker 00:
But the problem and I think the issue that the court judge rattles hit on the head is exhibit 31 doesn't say anything about dishonesty or anything else and there's an exchange at

[00:28:49] Speaker 00:
Volume 5, 895, and I lost that note, but I believe that's the correct page number, that where they go out and there's a discussion in the hallway between Ms.

[00:28:59] Speaker 00:
Ong after she says, what will Mr. Hall testify to?

[00:29:03] Speaker 00:
They go out.

[00:29:04] Speaker 00:
She comes back in.

[00:29:05] Speaker 00:
She represents to the court.

[00:29:06] Speaker 00:
It's not in the letter, but Mr. Hall is going to testify that he was dishonest.

[00:29:10] Speaker 00:
And then the court asks Mr. Shattuck, do you have any question for that?

[00:29:15] Speaker 00:
And Mr. Shattuck says, no.

[00:29:16] Speaker 00:
I think, you know, Ms.

[00:29:17] Speaker 00:
Holling is an officer of the court.

[00:29:18] Speaker 00:
She's just represented the court, which she thinks Mr. Holl is going to testify to.

[00:29:21] Speaker 00:
But that's a shifting target where he can just come in and say, he's dishonest.

[00:29:26] Speaker 00:
That's not what was in the report.

[00:29:28] Speaker 00:
That's not what was represented or anything else.

[00:29:31] Speaker 00:
And as I suggested...

[00:29:36] Speaker 00:
Your honor, respectively, the idea that I would just bring up and enter into more mudslinging with an individual who has just called my client an unsubstantiated liar I think is something that as a trial attorney I would not do because I've raised it with the court, I've lost it with the court, and now I'm going to poison the jury with the idea and allow Director Hall to, and your honor, this is my position and I think I'm out of time, your honor.

[00:30:03] Speaker 04:
All right.

[00:30:04] Speaker 04:
Any further questions?

[00:30:06] Speaker 04:
All right.

[00:30:06] Speaker 04:
Thank you for your arguments, counsel.

[00:30:08] Speaker 04:
The case is submitted.

[00:30:10] Speaker 04:
Counsel are excused.

[00:30:11] Speaker 04:
Thank you, Your Honor.