[00:00:03] Speaker 03: Case number 14-3023, United States of America versus Clyde Lacey Rattler Appellant. [00:00:10] Speaker 03: Ms. [00:00:10] Speaker 03: Dyer for the appellant, Ms. [00:00:12] Speaker 03: Bragg for the appellee. [00:00:19] Speaker 02: Good morning and may it please the court. [00:00:20] Speaker 02: Beverly Dyer on behalf of Clyde Rattler. [00:00:23] Speaker 02: And I'd like to reserve two minutes for rebuttal. [00:00:26] Speaker 02: The district court erred in finding that it was unfair to allow Mr. Rattler to testify that he did not recall his prior palm prints having been taken in the course of his contacts with the criminal justice system. [00:00:38] Speaker 02: During the fingerprint expert's testimony, when defense counsel objected to the introduction of prejudicial testimony about an arrest, counsel did not concede anything about the evidence of the prior palm print as a factual matter. [00:00:53] Speaker 02: Counsel made clear to the court that the purpose of the objection was to stop the expert from blurting out anything about an arrest. [00:00:59] Speaker 02: The government could have established proof of the prior print through documentary evidence without linking that print to an arrest, in which case defense counsel would have had no basis for objecting to the introduction of that evidence. [00:01:12] Speaker 02: But instead of admitting the documentary evidence, the government elected to show that the prior palm print was Clyde Rattler's by eliciting the expert testimony that it was both known and uncontested. [00:01:23] Speaker 04: On appeal, the government... That wasn't objected at the time, right, when that testimony was made by the fingerprint expert. [00:01:31] Speaker 02: It was not, but the defense counsel had no obligation to reveal whether or not... I'm not saying... I'm not arguing with you, I'm just asking. [00:01:39] Speaker 02: There was no objection. [00:01:41] Speaker 02: There was no objection, for example, when the expert testified that it was uncontested, when it's not clear how the expert would have known that. [00:01:47] Speaker 02: On appeal, the government seems to equate [00:01:49] Speaker 02: evidence of an arrest with evidence of the known print. [00:01:53] Speaker 02: But the two are not the same, and the government also appears to interpret Rattler's objection, trial objection, to prejudicial testimony about arrests with any agreement that might have occurred regarding the factual nature of the known print. [00:02:09] Speaker 02: which the record does not show that there was an agreement. [00:02:13] Speaker 02: Certainly if the government had believed that Rattler had agreed off the record as to how to characterize the palm print, it could have sought a stipulation to that effect. [00:02:21] Speaker 02: And there was no such stipulation in this case, as is clear from this court's cases, such as Gilliam and Harrison. [00:02:27] Speaker 02: Gilliam is 1999, Harrison is 2000, and Canoe, which is 2012, all of which discuss the nature of stipulations. [00:02:38] Speaker 02: Here, if Mr. Rattler wanted, during his own defense, to open the door to prejudicial testimony, that was his right. [00:02:46] Speaker 02: And it was not the government's right to open that door during its fingerprint expert's testimony. [00:02:51] Speaker 02: But even when the government can't, defendant can, and he can take the risk, [00:02:56] Speaker 02: that doing so might be more harmful than helpful. [00:03:00] Speaker 04: This is all about what happens on redirect, right? [00:03:05] Speaker 02: Yes. [00:03:06] Speaker 04: So I'm a little on your sort of more cosmic argument about it being a constitutional violation. [00:03:15] Speaker 04: He had an opportunity in his direct to say, I've never put in my palm fruit. [00:03:21] Speaker 04: This is impossible. [00:03:22] Speaker 04: So he had a complete and fair opportunity to testify on his own behalf. [00:03:29] Speaker 04: And he didn't testify at that point. [00:03:31] Speaker 02: At that point, he might have believed that the risk of doing so because of the prejudicial evidence that the government might put in as a result. [00:03:37] Speaker 04: What prejudicial evidence? [00:03:38] Speaker 02: Evidence of regress. [00:03:39] Speaker 04: But that was also on direct. [00:03:44] Speaker 04: Classic example of his defense counsel did exactly the right thing, take out the sting. [00:03:49] Speaker 04: Isn't it true you were arrested? [00:03:51] Speaker 04: You have three bank robberies. [00:03:53] Speaker 04: Yes, sir. [00:03:53] Speaker 04: I'm that Mr. Rattler. [00:03:55] Speaker 02: But at that time, counsel may not have recognized the extent to which the government would focus on the palm print during its cross-examination of Rattler. [00:04:02] Speaker 02: And once the government had done so, during cross... I don't understand. [00:04:06] Speaker 04: Excuse me. [00:04:08] Speaker 04: They focused on it. [00:04:09] Speaker 04: They put a fingerprint witness in, particularly to testify about the palm print, so it doesn't seem like there was any surprise that the palm print was going to be an important factor here. [00:04:18] Speaker 02: I don't think there was surprise that the palm print was going to be an important factor, but there was clearly a very [00:04:25] Speaker 02: probably a very close calculus about risks versus benefits of testifying that he did not recall his prior palm print having ever been taken. [00:04:32] Speaker 02: And that calculus might have shifted during his cross-examination in terms of the benefits outweighing the risks. [00:04:39] Speaker 04: I mean, I'm quite interested in the sort of sub-theory here about whether it's a constitutional violation, whether it's not, whether harmless error applies, whether it doesn't. [00:04:48] Speaker 04: whether Taylor balancing applies, etc. [00:04:51] Speaker 04: So if we thought that the district court was correct, that this was outside the scope of the cross, then would that be the end of the matter from your point of view? [00:05:04] Speaker 04: I know you don't agree with that, but if that were the case, it was outside the scope. [00:05:09] Speaker 02: Well, we don't even agree that the district court found... I appreciate that. [00:05:13] Speaker 02: Made that finding. [00:05:13] Speaker 04: I want you to make all hypothetical, from your point of view. [00:05:17] Speaker 04: If we thought that's why the district court cut off the redirect because it was outside the scope, would that be the end or would there still be more to be talking about? [00:05:27] Speaker 02: We had not briefed that [00:05:31] Speaker 02: that argument that it was within the scope. [00:05:33] Speaker 02: So it's not... Well, you do. [00:05:35] Speaker 04: You say it was within the scope of... That was within the scope of CROSS. [00:05:42] Speaker 04: That is what the CROSS was about, and therefore redirect was appropriate, right? [00:05:46] Speaker 02: So we don't read even if it was outside the scope. [00:05:48] Speaker 02: I know. [00:05:48] Speaker 04: That's why I'm asking this. [00:05:50] Speaker 04: So I guess basically what I'm asking, this is a, obviously, standard evidence rule. [00:05:54] Speaker 04: You only get redirect if it's open on CROSS, right? [00:05:57] Speaker 04: So if it wasn't opened on CROSS, [00:06:00] Speaker 04: Are you saying that the standard evidence rule is unconstitutional, wrong, etc., or would you agree under those circumstances that would be the end of the matter? [00:06:11] Speaker 02: I don't agree that it would be the end of the matter. [00:06:12] Speaker 02: I think it would be – we would have a slightly higher hurdle to meet in terms of showing that the district court abused its discretion in excluding the testimony. [00:06:21] Speaker 02: I think that Rattler still has a right to present his defense. [00:06:24] Speaker 02: and that there should be some consideration of even if he wants to admit something during redirect of the... That's what I thought you were saying. [00:06:36] Speaker 04: All of our cases about this are about even if there were an error, then the question is, do we apply Chapman or Kodiakas, right? [00:06:48] Speaker 04: Do we apply the constitutional rule or do we apply the non-constitutional rule? [00:06:51] Speaker 04: And those all say that an error [00:06:55] Speaker 04: in applying an evidentiary rule that rises to the level of depriving someone of a fair trial, then we applied Chapman. [00:07:04] Speaker 04: But I haven't found a case where the question is simply, well, the judge correctly applied the [00:07:11] Speaker 04: evidence rule, but the defendant has something really important he wants to say anyway. [00:07:16] Speaker 04: Are there any cases about that? [00:07:18] Speaker 02: I don't know, and I have not looked for those cases, and that's a very interesting question. [00:07:21] Speaker 03: Let me ask even more broadly. [00:07:23] Speaker 03: Is there any case, do you think, in which a judge's correct application of a rule of evidence could be deemed an abuse of discussion? [00:07:35] Speaker 02: I think there's a question about a correct application of a rule of evidence and whether it is correct in the circumstances where it is limiting a defendant's right to present a defense. [00:07:46] Speaker 03: And I think that the calculus or the weighing that this court should apply should at least encompass... I see your point, and if counsel had made an argument at the time to that effect, that that might be such a case. [00:08:00] Speaker 02: That the testimony was relevant and critical to the defense? [00:08:03] Speaker 03: That it's really depriving him of his defense. [00:08:06] Speaker 02: I guess I don't see that he needs to do more than ask for the evidence to be admitted and give a proffer as to what that evidence would be so that the court has some way of evaluating how important it is to the defense. [00:08:21] Speaker 02: I've never seen a case where it is required for the counsel [00:08:24] Speaker 02: for counsel, in order to preserve a right to present a defense, has to say to the court, but you are cutting off my right to present a defense while the counsel is seeking to end evidence. [00:08:32] Speaker 03: Well, if there's no doubt about the court correctly applying one of the rules of evidence, then the counsel would have to come back with something. [00:08:40] Speaker 02: Well, my argument then is what is correctly? [00:08:43] Speaker 03: Is correctly... Well, that's begging the question because Judge Carolyn hypothesized it was a correct. [00:08:49] Speaker 02: Well, I guess my argument is it would be correct, but for the fact that the defendant has a right to present a defense, and if it's critical evidence to the defense, then the court should look more carefully at whether it should be excluded even in those circumstances where it's beyond the scope. [00:09:07] Speaker 02: And I do think here that the evidence was critical to the defense. [00:09:11] Speaker 02: The defense was essentially misidentification. [00:09:13] Speaker 04: But his only testimony, just not to be clear, what he wanted to say was, I don't remember being palm printed. [00:09:20] Speaker 04: That's all he was going to testify, right? [00:09:21] Speaker 02: That's all he was going to testify, but his counsel twice tried to expand on that, and the district court cut council off. [00:09:27] Speaker 02: That's in line 17. [00:09:28] Speaker 02: Excuse me? [00:09:30] Speaker 03: In what direction expanded? [00:09:32] Speaker 02: He said it was impossible because, and he said because he wants to say, and the district court interrupted twice. [00:09:38] Speaker 02: That's in line 17 to 24, I believe, on page 300 of the ECF file. [00:09:44] Speaker 02: in the appendix and so I'm not sure council had an opportunity to fully give the proffer. [00:09:51] Speaker 04: Well is there anything, the only thing he did proffer was he was going to say I don't remember being a power printer. [00:09:57] Speaker 04: You have another proffer? [00:09:58] Speaker 04: I mean we can't just say, I mean that sounds like all he was going to say to me because that's all I can read. [00:10:04] Speaker 02: That's all that was put on the record. [00:10:06] Speaker 04: Right and you don't have another proffer that there's something else he could have said [00:10:10] Speaker 02: I don't have that at this time for this court, but I do think that even that testimony, the government's only physical evidence in this case was the poem print and grainy photographs. [00:10:20] Speaker 02: There was no physical evidence of money or the clothes that he wore. [00:10:26] Speaker 02: That's why the palm print became so critical to the case. [00:10:31] Speaker 03: Actually, I think it was the failure of the two tellers to identify him that's even more salient. [00:10:36] Speaker 02: Well, that is one reason that the evidence was not overwhelming. [00:10:40] Speaker 02: And also, the jury here did not immediately come back with a verdict suggesting that the trial was a day and a half, and the jury deliberated for a full day, or the equivalent of a full day, one afternoon and one morning. [00:10:50] Speaker 02: And as the court is well aware, it asks questions both about the poem print, the known poem print, and about the photographs. [00:10:59] Speaker 01: What did defense counsel say immediately after the district court said, I think it would be unfair? [00:11:07] Speaker 01: If you remember. [00:11:08] Speaker 01: I mean, I can go back and look. [00:11:09] Speaker 01: I thought you might remember directly. [00:11:10] Speaker 01: I should remember. [00:11:11] Speaker 01: Because the way your brief reads, we would have to [00:11:21] Speaker 01: say that even though the district court was not asked to make any of these findings that you say it should have made, because it had to do with the right to present a defense, would we have to say along the lines that the Chief Judge was exploring with you that there was a manifest miscarriage of justice? [00:11:39] Speaker 02: I think that this court does not have to reach any of those questions under Taylor or if it finds that this court was incorrect in finding that it was unfair at all. [00:11:48] Speaker 02: And that is not as clear in our briefs as it could have been, but I think that the court should reach the argument whether it was even unfair. [00:11:55] Speaker 02: when all counsel was trying to do during the fingerprint expert's testimony was to prevent the introduction of prejudicial evidence of arrests. [00:12:04] Speaker 02: And the government could easily have put in evidence of the prior print without mentioning arrests during its opening case and did not do so. [00:12:12] Speaker 01: And here... I don't know though, given what you just discussed about the nature of the evidence, why isn't the government going to focus on the print? [00:12:22] Speaker 02: I mean, that's its case. [00:12:24] Speaker 02: We recognize that the print is important to the case, and that must have been clear throughout the case. [00:12:30] Speaker 02: But that does not mean that the defendant necessarily was going to open his... [00:12:34] Speaker 04: I just don't understand that. [00:12:36] Speaker 04: I don't understand why you wouldn't, if you think that the, really the only evidence in your view, by the way, I'm not, it's clear, it seems to me that a teller who saw the person for 20 seconds is a less reliable witness than somebody who has met with, like the probation officer and the court clerks who've met with him many times and know exactly what he looks like and can look at the picture, is a better witness. [00:13:01] Speaker 04: But leaving that aside for the moment, [00:13:03] Speaker 04: In your view, the worst evidence against him is the palm print. [00:13:09] Speaker 04: And how could he not then open his direct by saying, I was never in the bank and I have never given my palm, I don't remember giving anyone my palm print ever. [00:13:21] Speaker 04: I don't understand how it could be saved for later. [00:13:24] Speaker 02: Well, I think the calculus was very close on risks versus benefits. [00:13:28] Speaker 02: That's my estimation. [00:13:29] Speaker 02: But that's one of the things the district court did not ask about. [00:13:32] Speaker 02: If it really was unfair for counsel to try and get it in on redirect, then this is where the question of manifest injustice would come out. [00:13:42] Speaker 02: If this court were to reverse and it were unfair, [00:13:46] Speaker 02: and the just court was correct that it was unfair to try and bring it out and redirect. [00:13:49] Speaker 02: This is assuming it's within the scope. [00:13:51] Speaker 02: Then the court, in order to outright reverse, would have to find manifest injustice, I believe, or that the penalty was unnecessarily harsh. [00:13:59] Speaker 02: But I think that... [00:14:01] Speaker 02: If the court does not reach that finding, then it should remain, because there should have been inquiry into exactly this question. [00:14:09] Speaker 02: What was counsel thinking? [00:14:12] Speaker 02: Was this? [00:14:12] Speaker 04: Well, I don't see why I would count. [00:14:13] Speaker 04: I mean, this is not a question of subjective view of the counsel here. [00:14:16] Speaker 04: This is really an objective question for the court. [00:14:20] Speaker 04: But I have to say, now I'll ask you the same kind of question. [00:14:24] Speaker 04: Have you ever seen a case? [00:14:26] Speaker 04: Is there any case where this Taylor idea [00:14:30] Speaker 04: of balancing has ever been applied where the court hasn't said they were sanctioning for something. [00:14:36] Speaker 04: There's no, the district court is not saying I'm sanctioning you for violating some rule. [00:14:42] Speaker 04: Correct. [00:14:42] Speaker 04: Nothing like that. [00:14:43] Speaker 04: Now, the Gray Burris case that I was on, that was a sanction for violation of rule 16, which we said you can't do that without this way. [00:14:53] Speaker 02: as most of them are, and my use of those cases is really to analogize it to a situation where this was a sanction for something unfair because the court must have accepted the government's representation that it was uncontested and that somehow the defense had changed its position. [00:15:09] Speaker 02: I don't think it's clear from the record that the defense changed its position, and that's why I don't think it was unfair, and I don't think the defense had any obligation to correct [00:15:16] Speaker 02: the representation that was uncontested during the government's case in chief. [00:15:20] Speaker 02: But I do think that if this court finds that it was unfair because the prosecutor's representation showed something, the defense changed its position, then it is akin to a sanction. [00:15:31] Speaker 02: When the district court says it's unfair, [00:15:33] Speaker 02: It's sanctioning the defendant. [00:15:34] Speaker 02: That's why I think those cases are not directly on point, but they are at least relevant. [00:15:39] Speaker 02: Under a rock, the Arkansas kind of analysis of how much of the defendant's testimony. [00:15:44] Speaker 02: When can a court limit a defendant's testimony? [00:15:46] Speaker 02: And when is it arbitrary? [00:15:48] Speaker 02: And if the court has no further questions, I would... Save your time. [00:15:54] Speaker 02: I don't have any time, but hopefully the court will give me a minute. [00:15:56] Speaker 02: Thank you very much. [00:16:03] Speaker 00: Good morning. [00:16:03] Speaker 00: May it please the Court, Sharon Sprague, on behalf of the United States. [00:16:07] Speaker 00: The trial court here did not abuse its discretion by sustaining the government's beyond-the-scope objection to the defense counsel's redirect questioning on a matter that had not previously been explored by either party and which the defense counsel had specifically asked the government to avoid. [00:16:24] Speaker 00: There are a couple of foundational questions here. [00:16:27] Speaker 03: There was only agreement on the record on that. [00:16:30] Speaker 00: I would dispute that, Your Honor. [00:16:32] Speaker 00: It could have been clearer, and perhaps our trial attorney might seek a stipulation next time. [00:16:38] Speaker 00: But I think the record does reflect that there was an agreement between the two. [00:16:42] Speaker 00: The defense elected essentially not to have the government prove up the existence and the background of the known print. [00:16:56] Speaker 00: This was, and this is reflected when it first came up in court when the fingerprint expert was being examined. [00:17:05] Speaker 00: And the AUSA asked, started to ask a non-leading question of his witness, what is a known, and then corrected himself remembering, I would infer the agreement with defense counsel, corrected himself and asked a leading question. [00:17:22] Speaker 00: A known print is such and such. [00:17:24] Speaker 03: But there were no agreements that he had done. [00:17:25] Speaker 03: But if there were no agreement, but he had done that for other reasons? [00:17:30] Speaker 00: No. [00:17:30] Speaker 00: If there was no agreement, we would have had – he would have brought in the – a witness to establish that the known print was legitimate and that it – when and how it was taken. [00:17:43] Speaker 03: It would be inexplicable. [00:17:44] Speaker 03: There would be no agreement. [00:17:45] Speaker 00: It would be inexplicable if there were no agreement. [00:17:48] Speaker 00: And I'd like to point the court out, point to some pretrial status hearing testimony that I came, or colloquy that I came across while preparing for oral argument. [00:18:01] Speaker 00: In the pretrial hearings, status hearings leading up to trial. [00:18:04] Speaker 04: Do we have that? [00:18:04] Speaker 00: It's not in the Appellant's Appendix, it's of course in the record because it was before the trial court and I'm happy to make it a part of the... Do you have it here? [00:18:13] Speaker 00: I do. [00:18:13] Speaker 04: Can you give a copy to the defense counsel while we're talking? [00:18:15] Speaker 00: Yes, and I called defense counsel a couple days ago and told her about it. [00:18:19] Speaker 04: Fair enough then. [00:18:21] Speaker 00: Yep, that was the first thing I did. [00:18:24] Speaker 00: Don't like to hide the ball. [00:18:26] Speaker 00: Anyway, in those pre-trial conferences it became clear that the government handed over [00:18:32] Speaker 00: all the fingerprint evidence, photocopies of the known palm print. [00:18:37] Speaker 00: And the defense counsel said he might want to have his own expert look at them. [00:18:41] Speaker 00: So he wanted originals. [00:18:43] Speaker 00: Counsel agreed to provide them within two days and did so. [00:18:47] Speaker 00: What's reflected on the transcripts themselves is that colloquy that I'm going to have by Sean Moore saying, I'm getting these prints. [00:18:54] Speaker 00: I'm going to have my expert look at them. [00:18:57] Speaker 00: So we know for a fact that the defense counsel had the print. [00:19:01] Speaker 04: Could you submit those costs to them? [00:19:02] Speaker 00: Yes, I'd be happy to, Your Honor. [00:19:04] Speaker 00: We know for a fact that the defense counsel had those prints, that everyone had those prints. [00:19:10] Speaker 00: The court had ruled, had presided over a discussion in pretrial discovery matters about making sure everyone had this stuff. [00:19:19] Speaker 00: So there was no question that the defense counsel knew about the palm print. [00:19:25] Speaker 00: Knowing that the government did have a known palm print from the defendant, and when you see the fingerprint card, you can see exactly when it was taken and that it was from a prior arrest, which is what the AUSA said at the bench when first talking about this with respect to the fingerprint expert. [00:19:44] Speaker 00: Knowing that the government did have that known palm print, knowing that it was from an arrest which was different, [00:19:50] Speaker 00: than the three or four convictions that were going to be used for impeachment. [00:19:55] Speaker 00: And seeing only downsides to an airing of that evidence, I would submit the defense counsel made a strategic choice to accept the known as uncontested. [00:20:04] Speaker 00: And that's why the fingerprint officer who would have come in to testify about the known wasn't even on the government's witness list from the beginning. [00:20:17] Speaker 00: So at trial, what was the consequence or the result of that agreement? [00:20:22] Speaker 00: The AUSA did not prove up, the government did not prove up the known print in any way, only used the shorthand known uncontested print and had the officer explain what that meant. [00:20:34] Speaker 00: was the quote, leading through the minefield, that defense counsel specifically told the court at the bench he wanted to have happen, as opposed to having the arrest revealed. [00:20:47] Speaker 00: And of course, I direct the court to the appendix at 199-200 for that. [00:20:52] Speaker 00: There he told the court, of course, initially sustained the objection thinking the objection was to a leading question. [00:20:59] Speaker 00: And the defense counsel set her straight and said, no, if he was about to blurt out something that he shouldn't, I don't object to Mr. Cole leading him through the minefield. [00:21:09] Speaker 00: And I would submit that right there, that language is the agreement. [00:21:15] Speaker 00: And then he cements that agreement further by saying, after the prosecutor explained what it was, it was just a prior arrest, it was just an uncontested prior exam, the defense counsel says, in other words, in this case, I would rather have him lead briefly in this area so that they don't hear about this arrest. [00:21:35] Speaker 00: The defense counsel says, in other words, the defense counsel isn't disputing what the government has said. [00:21:41] Speaker 00: Instead, the defense counsel is simply trying to amplify on it and says, this is what I would rather have happen. [00:21:47] Speaker 00: So I think the record as it is, without a stipulation, makes clear that there was an agreement. [00:21:53] Speaker 00: The consequences of that agreement were that the government didn't prove of the known, the defense counsel didn't question the fingerprint expert about the known, and [00:22:03] Speaker 00: importantly, did not ask his client, the defendant, on direct about the known. [00:22:11] Speaker 00: When it came time for the prosecutor to ask the defendant about the known on cross, the prosecutor stayed within the party's agreement while cross-examining the defendant. [00:22:22] Speaker 00: He simply had the defendant repeat his direct testimony that he had not gone to the bank, and that it was therefore, quote, impossible for his palm print to be on the front door. [00:22:32] Speaker 00: That's at 294. [00:22:34] Speaker 00: There was no questioning about, is it impossible for your fingerprint to be on that fingerprint card that we've all seen and characterized as a known print. [00:22:43] Speaker 00: And then it was out of the blue that defense counsel on redirect asked about how the known was acquired. [00:22:49] Speaker 00: And that prompted the beyond the scope objection. [00:22:53] Speaker 00: Appellate suggests that the court may not have decided on a beyond the scope basis. [00:22:59] Speaker 00: And I would suggest that that reading is not supported by the record. [00:23:03] Speaker 00: The objection by the prosecutor was, quote, beyond the scope. [00:23:09] Speaker 00: That's what the trial court was asked to rule on. [00:23:12] Speaker 00: And fairness was discussed because fairness was an aspect of this legal question. [00:23:18] Speaker 00: It was unfair that the defense counsel was trying to expand the scope, both of the case as a whole and of the examination of the defendant. [00:23:28] Speaker 00: And what was the court's response? [00:23:30] Speaker 00: The court's response is, there is no testimony in the record at this point related to the known palm print. [00:23:35] Speaker 00: And that's at 300 in the appendix. [00:23:38] Speaker 00: And he went on to say, Mr. Rattler said it was impossible because he wasn't there, not because his palm print was never taken. [00:23:47] Speaker 00: That was his testimony. [00:23:49] Speaker 00: The court did not use the words beyond the scope, but the court's ruling and the court's description of what the state of the evidence was to that point described a situation in which that ruling was appropriate. [00:24:05] Speaker 00: Fairness was indeed mentioned, and appropriately so, because it was unfair to now go beyond the scope [00:24:13] Speaker 00: Because it was defense counsel who had driven the train that limited that scope in the first place. [00:24:19] Speaker 00: And of course, as this court knows and said in the Brown case from 2000, there is no absolute right to redirect. [00:24:26] Speaker 00: It must be confined to only new things brought up on cross-examination. [00:24:31] Speaker 00: And there was nothing new brought up on cross-examination. [00:24:37] Speaker 00: In any event, the last thing I should say about, I guess, that I need to address from the appellant's argument is that I almost don't understand the argument that the court's decision wasn't based on beyond the scope and instead was some kind of sanction. [00:24:55] Speaker 00: Because beyond the scope was the objection that was made. [00:24:59] Speaker 00: It was the description that the court gave. [00:25:01] Speaker 00: And no one on either side ever used the word sanction. [00:25:05] Speaker 00: which appellant now seems to suggest was the basis for the exclusion. [00:25:09] Speaker 04: Well, I think in both our argument just now and the reply brief, the appellant made clear they weren't quite making the sanction argument, they were using it as an analogy. [00:25:23] Speaker 00: As an analogy. [00:25:23] Speaker 04: Yeah, so that's what you have to respond to. [00:25:24] Speaker 00: And I would suggest that the analogy is not appropriate here. [00:25:28] Speaker 00: In answer to a question that I think Your Honor asked, the [00:25:38] Speaker 00: The Taylor and Gray Burris lines of cases did all deal with sanctions. [00:25:46] Speaker 00: And I would suggest that those issues are not reached when you're talking about a simple evidentiary ruling. [00:25:53] Speaker 00: This was a simple evidentiary ruling. [00:25:55] Speaker 00: Was this beyond the scope? [00:25:56] Speaker 00: Was it not beyond the scope? [00:25:58] Speaker 00: Trial courts are vested with great discretion in making those kinds of rulings. [00:26:03] Speaker 00: and there was no basis for, once the court decides that this was indeed beyond the scope, the kinds of factors that go into a sanctions decision aren't asked. [00:26:15] Speaker 00: It doesn't matter if it was fair or unfair. [00:26:17] Speaker 00: It's beyond the scope or it's not beyond the scope. [00:26:21] Speaker 04: totally beyond the scope, but suddenly the defendant thinks of something and says, imagine this was all about whether the person had a birthmark somewhere or something like that, and it turns out absolutely clear, no doubt about it, this defendant does not have that birthmark. [00:26:42] Speaker 04: The defendant didn't think of it until redirect. [00:26:45] Speaker 04: Yeah, it's unfair. [00:26:46] Speaker 04: It's unfair for the government, et cetera. [00:26:48] Speaker 04: But if all that's necessary is for the defendant to raise his arm and show that he has no birthmark and therefore could not have been the bank robber. [00:26:57] Speaker 04: Is there no, that's it? [00:27:02] Speaker 04: We have to convict that person who's clearly innocent. [00:27:04] Speaker 00: No, Your Honor. [00:27:05] Speaker 00: I think the trial court always has the authority. [00:27:08] Speaker 04: Assume the trial court didn't. [00:27:10] Speaker 04: Assume the trial court said, I don't care if you're completely innocent. [00:27:15] Speaker 04: because you don't have that birthmark, and there's no doubt about it that you don't have the birthmark. [00:27:19] Speaker 04: But you exceeded the scope, and I'm really strict about evidence rules. [00:27:23] Speaker 04: When do you reverse that? [00:27:25] Speaker 00: I think it depends on the context and whether this could be seen as sandbagging. [00:27:33] Speaker 00: I mean, presumably the defendant and the defense... Even if it is sandbagging? [00:27:36] Speaker 00: Even if it is. [00:27:38] Speaker 00: Is it a manifest miscarriage of justice? [00:27:41] Speaker 00: That's a good way to put it. [00:27:44] Speaker 00: It could be. [00:27:44] Speaker 00: I could imagine that. [00:27:45] Speaker 00: That challenge was not made in the trial court. [00:27:49] Speaker 00: And it wasn't really made that way here. [00:27:51] Speaker 00: And so it hasn't been. [00:27:52] Speaker 00: We haven't analyzed that. [00:27:54] Speaker 04: I haven't seen any cases about this. [00:27:55] Speaker 00: I have seen no cases about that. [00:27:57] Speaker 04: Maybe that never happens. [00:27:58] Speaker 00: And I have seen no cases about that. [00:28:00] Speaker 00: And I have looked. [00:28:03] Speaker 00: In this case, I think the other important thing, and it factors into the fact that any error, if there was an error, was harmless. [00:28:11] Speaker 00: is that what the proffer was, was about something of very, extremely minimal value. [00:28:16] Speaker 00: To have the appellant say, I don't remember having ink rolled over my palm. [00:28:22] Speaker 00: I don't remember ever having had that. [00:28:23] Speaker 00: Yes, I've had fingerprints taken many times, but I don't remember the palm part. [00:28:28] Speaker 00: Would not have gotten him very far in [00:28:30] Speaker 00: response to the government expert already saying that they had a known palm print and compared it to the latent, and it was a match. [00:28:41] Speaker 00: And of course, yes, the government could have rebutted by getting another witness and so on, but the fact that this came up on redirect is significant. [00:28:49] Speaker 00: If this had come up on direct, [00:28:54] Speaker 00: I could imagine more of a discussion would have occurred. [00:28:57] Speaker 00: The government might have objected on the grounds that it was unfair. [00:29:01] Speaker 00: Not that it was beyond any scope, but you can't get into this now. [00:29:04] Speaker 00: We have a prior agreement. [00:29:05] Speaker 00: I've relied on it. [00:29:06] Speaker 00: The whole case has proceeded this way. [00:29:08] Speaker 00: And then there'd be more in the record about the agreement I would submit. [00:29:12] Speaker 00: But none of that was brought up on direct. [00:29:14] Speaker 00: Instead, it was [00:29:15] Speaker 00: defense counsel waited until cross, and it felt almost like an afterthought, but in any event, even the proffer was insignificant. [00:29:25] Speaker 00: And when you compare that with the strong government case, Appellant characterizes it as weak. [00:29:31] Speaker 00: We don't agree that even the photos were hard to see or grainy. [00:29:37] Speaker 00: They were broadcast on NBC, and two different witnesses who knew Mr. Ratler for years saw them, and Suis Ponte [00:29:45] Speaker 00: reported that they knew who the bank robber was. [00:29:48] Speaker 00: He was identified by four people who knew him quite well, including his probation officer, who saw him once or twice a week for over two years. [00:29:57] Speaker 00: and a deputy US marshal and two members of the clerk's office, where appellant was apparently a frequent filer of things here in this courthouse. [00:30:09] Speaker 00: So the case against him was quite strong, and under those circumstances, any error was harmless and certainly not of any constitutional dimension, as in Johnson or Day. [00:30:20] Speaker 00: because the defendant was not precluded from an entire line of questioning or from making an entire defense. [00:30:27] Speaker 04: Are there further questions from the defendant? [00:30:30] Speaker 00: No. [00:30:30] Speaker 00: Because the court did not gravely abuse its discretion, we urge the court to affirm the judgment of the district court. [00:30:39] Speaker 04: We'll give you another minute. [00:30:41] Speaker 02: Thank you, Your Honor. [00:30:42] Speaker 02: First, I would like to point out that the minefield the defense counsel was talking about was the arrest, not the print. [00:30:49] Speaker 02: Second, while the government doesn't... What do you mean by that? [00:30:52] Speaker 02: I'm sorry. [00:30:53] Speaker 02: During the objection to the fingerprint expert's testimony, [00:30:56] Speaker 02: When defense counsel objected, he was objecting to the arrest, prejudicial evidence, not to evidence of the print. [00:31:02] Speaker 02: The evidence of the print could have come in. [00:31:03] Speaker 02: Defense counsel's strategy could have changed, and the defense counsel is allowed to change his strategy. [00:31:09] Speaker 02: The defense counsel might not have believed, given the close calculus of risks and benefits, that he... [00:31:16] Speaker 04: I'm a little confused by this. [00:31:18] Speaker 04: The government begins by asking, well, how do we get these known prints? [00:31:24] Speaker 04: It's an open-ended question. [00:31:26] Speaker 04: The answer is going to be, we took him at his arrest. [00:31:30] Speaker 04: And then there's an objection. [00:31:32] Speaker 04: And the judge says, sustain leading. [00:31:33] Speaker 04: And the defense counsel says, no, no, I'm not objecting to it being leading. [00:31:37] Speaker 04: He's objecting it to being about an arrest. [00:31:39] Speaker 04: Well, how else are they going to establish the fact that it's a known print, other than by saying, we got this one during an arrest? [00:31:48] Speaker 02: First of all, we don't dispute that there was, in fact, a document that they purported to be a known print. [00:31:53] Speaker 02: But they could have put that document in with the expert witness and said, is this what you compare to the print on the TD Bank door? [00:31:59] Speaker 02: And then the expert, and they could have taken out any reference on that document to an arrest. [00:32:04] Speaker 02: I'm not even sure that it has a reference to an arrest. [00:32:07] Speaker 04: Well, and then would it have been uncontested that that was his? [00:32:10] Speaker 02: And then, well, no, and then he still could have gotten up and said, I don't recall ever giving them my poem print. [00:32:14] Speaker 04: No, no, no. [00:32:15] Speaker 04: I'm sorry. [00:32:15] Speaker 04: But if that was the position, that that wasn't really his print, wouldn't the fingerprint examiner have been able at this point then, when he's opened, to be able to say, I got this from an arrest. [00:32:31] Speaker 04: This is where we got the print. [00:32:32] Speaker 02: Well, he can say that. [00:32:34] Speaker 02: Well, if it's contested, once it's contested, no, I think the fingerprint experts need to say, this is from an official government meeting with Mr. Rattler where his prints were taken. [00:32:47] Speaker 02: And any reference on the document that is the known print [00:32:50] Speaker 02: can be edited, redacted. [00:32:53] Speaker 04: So then it's uncontested that it was taken from Mr. Rattler. [00:32:57] Speaker 04: The defense counsel wouldn't have said that. [00:33:00] Speaker 02: No, he can still contest that, though it says Mr. Rattler on this official print, that it's not his, that a mistake was made, that some evidentiary [00:33:10] Speaker 02: you know, chain of custody with the known print occurred, that the fingerprint examiner was taking 20 people's prints in 15 minutes. [00:33:18] Speaker 04: I understand that, but he could have testified, you're saying that the fingerprint examiner could have testified that this was, this finger, this palm print was actually taken at a meeting with Mr. Rattler? [00:33:32] Speaker 02: Yes. [00:33:33] Speaker 04: Well, there's not... I read this colloquy, I don't see any suggestion that that would have been... Well, the government did not try to put in any evidence of the known print. [00:33:43] Speaker 02: The government simply elicited the expert's testimony that it was known. [00:33:47] Speaker 02: That doesn't mean the defense counsel, at that time, didn't expect necessarily to contest the print, thinking that the risks of doing so might be worse than the benefits of doing so. [00:33:57] Speaker 02: But at the point of the redirect, [00:34:00] Speaker 02: you know, once the government had cross-examined, the calculus had changed. [00:34:04] Speaker 02: I do think, and in that case, that's a justifiable change of defense position. [00:34:09] Speaker 02: The defense is not required. [00:34:12] Speaker 04: Absent of stipulation, with respect to facts... What was the way in which the calculus didn't change until the cross-examination? [00:34:21] Speaker 02: I would like to address the government's argument that it is beyond the scope. [00:34:27] Speaker 04: Forgetting about the scope question, how did the cross-examination change the defense calculus? [00:34:33] Speaker 02: I think that bringing it out on the cross when the government asks, and you heard the testimony from Mr. Glenn, [00:34:41] Speaker 02: who compared that print with a known certified copy of your fingerprint, Palmer and Fingerprint. [00:34:46] Speaker 02: You heard that, right? [00:34:46] Speaker 02: I heard that. [00:34:48] Speaker 02: And based on his expert opinion, that's expert Liam from the FBI Fingerprint Division, it was his opinion that that palm print was yours. [00:34:56] Speaker 02: Impossible, sir. [00:34:58] Speaker 02: Impossible because you're telling the jury you were never there. [00:35:00] Speaker 04: I don't understand how, I'm not following how that, I sort of get your argument about how this goes to whether it's beyond the scope or not. [00:35:09] Speaker 04: I don't get your argument about how that's different than the fingerprint examiner's testimony on his own that this is the known palm print of Mr. Rattler. [00:35:21] Speaker 02: Is your question why it wasn't brought out in Mr. Rattler's direct testimony, if it was a defense strategy? [00:35:26] Speaker 04: That is my question, yes. [00:35:28] Speaker 02: I think that the – I think that calculus was close, and I think that the – it can shift, and the defense can feel like at this point we need more. [00:35:37] Speaker 02: We need something. [00:35:38] Speaker 02: We need to take this risk. [00:35:40] Speaker 04: And so I – We can't make judgments about that here. [00:35:43] Speaker 04: I mean, if you're saying this is unfair, [00:35:46] Speaker 04: to Mr. Rattler, that it deprived him of his defense, that it was manifestly unjust. [00:35:54] Speaker 04: Whatever test we apply, it can't be just based. [00:35:58] Speaker 04: He may have an ineffective assistance claim against the counsel here, but it doesn't seem like there's anything that the court or the government has done to prevent him from presenting the kind of testimony that he says he needed. [00:36:12] Speaker 02: Well, the government says that if he had testified on redirect, the government now says had he testified on his direct, excuse me, that they might have objected that it was unfair at that point. [00:36:23] Speaker 02: So they might have objected based on what they believe was an extra record agreement. [00:36:29] Speaker 02: I have to say that I don't understand the government's argument that it's beyond the scope, because they focus on the question, is your fingerprint on the door? [00:36:41] Speaker 02: But I would focus on the your. [00:36:43] Speaker 02: Is it your fingerprint on the door? [00:36:45] Speaker 02: And once the government starts asking those questions, how can it not be within the scope for Mr. Rattler to be able to talk about whether it's his fingerprint there and how his fingerprint can be there? [00:36:59] Speaker 02: So it's the identification of his fingerprint and the cross-examination about whether it is known, whether it was indeed his fingerprint, [00:37:06] Speaker 02: whether the expert was right on that point, which is very specific. [00:37:11] Speaker 02: And so I just, I find it hard to believe that it was not within the scope of the cross. [00:37:19] Speaker 02: Thank you. [00:37:19] Speaker 02: If there are no further questions, I appreciate the court's time. [00:37:22] Speaker 02: Thank you very much. [00:37:22] Speaker 02: Thank you. [00:37:25] Speaker 04: I will take the matter under submission.