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Case number 13-3024 at L. United States of America versus DIA Pasha, also known as Ms.

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D, Appellant.

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Ms.

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Rogers for Appellant Dom, Mr. Morrissey for Appellant Imam Pasha, Mr. Allen for Appellant DIA Pasha, and Ms.

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Heller for the Appellees.

[00:00:22] Speaker 01:
Good afternoon.

[00:00:24] Speaker 01:
The court will make just a brief statement in connection with the denial of Appellant Down's counsel's motion to seal the courtroom.

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There is a strong presumption in favor of public access to court proceedings.

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There are only limited circumstances for sealing a courtroom.

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The motion to seal did not discuss the relevant precedent.

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The motion also did not identify the type of confidential or sensitive medical information that would require closing the courtroom.

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The members of this Court are familiar with the medical issues referenced in Appellant Down's pre-sentence report, which is part of the sealed materials.

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During oral argument, the sealed medical issues may simply be referred to as such.

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Thank you.

[00:01:20] Speaker 07:
Good afternoon.

[00:01:21] Speaker 07:
Hi.

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May it please the court, my name is Megan Rogers and I represent the appellant, Mr. Dom.

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Mr. Dom's convictions must be reversed or in the alternative vacated and remanded for three reasons.

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The first issue concerns the validity of Mr. Dom's jury waiver.

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Here we respectfully argue that where there's evidence of mental illness and an absence of an oral colloquy, a new trial is warranted.

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What does the rule require?

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What does Rule 23 require?

[00:01:48] Speaker 07:
Rule 23 requires that the submission be in writing, that the government consent, that the court consent.

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But beyond that, in addition to a Rule 23 waiver, the waiver- But wait, but let's start there.

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That's what Rule 23 requires.

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Yes.

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Were those conditions met in this case for each of the defendants?

[00:02:04] Speaker 07:
The Rule 23A waiver was properly submitted, yes.

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But the Rule 23A waiver alone isn't sufficient to waive a right to a jury trial.

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In addition to that, the defendant must be competent to waive his right to a jury trial.

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and the waiver must be made knowingly, intelligently, and competently.

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Is a colloquy required?

[00:02:22] Speaker 07:
In certain circuits it is, yes.

[00:02:24] Speaker 07:
In this circuit, Your Honor, no, there's no supervisory rule, but it's certainly been encouraged, for example, in David.

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And the reason for that, I think, is simple.

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It's that intelligence does not equal competence.

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People suffering from mental health issues often make decisions that don't seem to comport with their intelligence.

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This court need look no further than judge-friendly suicides.

[00:02:43] Speaker 05:
I think the language of the case is something like a red flag.

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There needs to be a red flag.

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The judge needs to have some reason to think that the person may not be competent.

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What did the district court have in front of her at the time

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that would have been a red flag to her, that perhaps competency was not before her.

[00:03:06] Speaker 07:
At the time that the district court received the written waiver, there was nothing in front of it indicating that Mr. Dong suffered from mental illness.

[00:03:12] Speaker 07:
But I think, Your Honor, that this only underscores the importance of conducting this type of colloquy.

[00:03:18] Speaker 05:
But then the suggestion is, if there's nothing in front of the judge, that she needs to engage in colloquy every time.

[00:03:25] Speaker 05:
But that's not what the rule requires, and that's not what our case law requires.

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The law requires that the district court has a responsibility to evaluate the mental ability of a defendant to evaluate... And if there's nothing in front of her to suggest that there's a problem there, I'm not certain what rule you... Well, I am certain what rule you want us to adopt, and I just don't know the basis for it.

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Colloquy every time.

[00:03:46] Speaker 07:
Again, this court doesn't need to conclude that a colloquy is required in every instance, but here where there's evidence of mental illness and there is no... That's what I'm getting.

[00:03:55] Speaker 05:
What was the evidence of mental illness before Judge Kessler?

[00:03:58] Speaker 07:
There was nothing before Judge Kessler at the time, but this court can take a de novo review of this issue.

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And looking at all of the evidence in this case, Mr. Dahm was suffering from mental health issues for over a year before he waived his right to a jury trial.

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Is there any suggestion that they affected his competency?

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This is a seasoned litigator, right?

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This is someone who had been in court many, many times.

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Is there any suggestion that he was incapable of understanding

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What's something that's significant but fairly routine?

[00:04:30] Speaker 07:
There's simply no evidence one way or the other because the questions weren't asked.

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You know, the bench book encourages district courts to ask fairly simple questions, such as, have you taken any medication today?

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Are you under the care of a psychiatrist?

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Any of those questions would have reached them.

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There's no question those are best practices, but the issue before us isn't best practices, right?

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The issue before us is constitutional rights or statutory rights.

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And there is no law that says that sort of colloquy is required, right?

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In the absence of a red flag.

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That's what I'm troubled by here.

[00:05:04] Speaker 01:
So in this case, what the judge had before her was a seasoned defense attorney and an attorney who was represented by counsel.

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And neither said anything or submitted anything in writing.

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to the district court.

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That's correct, Your Honor.

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So the only way you can prevail under this theory is if we adopt the rule that Judge Griffith has suggested your argument at least implies, namely that in every instance in which there is a waiver, purported waiver, of a right to a jury trial, the district court,

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must engage in a series of questions.

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And what those questions are will be litigated ad infinitum.

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But you're basically saying there must be a Rule 11 inquiry.

[00:06:08] Speaker 07:
No, Your Honor, but that's not our position.

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In fact, I don't think the court needs to reach that conclusion to find it in our favor here today.

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In our particular case, these issues need to be evaluated based on the facts of the case in front of the court.

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And here, there is evidence of mental illness.

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There is an absence of an oral colic.

[00:06:24] Speaker 01:
And on those facts... Let me say, based on my familiarity with the record, which is probably not as complete as yours, I'm not sure even that has been demonstrated.

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There is no medical evidence per se in the record, and you want us to make a ruling on the basis of this record, which I'm suggesting to you is thin at best, that there must be a colloquy in every case.

[00:06:57] Speaker 07:
Your Honor, I think in this case, I mean, there is evidence in the record that he was suffering from panic attacks, and I know, I know, I listened to Your Honor's announcement at the beginning that we should refer to it generally, but I want to clarify what's in the record for the purpose of... We are familiar with it.

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Okay.

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On this basis, I think that there is an insufficient basis on which this Court can judge the validity of the waiver.

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We're not asking for a blanket rule that in every circumstance

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a court has to conduct an oral colloquy and sometimes it might... But why not, counsel?

[00:07:26] Speaker 01:
Isn't that the implication?

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There was nothing you acknowledged before the district court to indicate any reason to doubt your client's competence to stand trial.

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And no counsel made that point at the time.

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We would certainly support such a supervisory rule that's been adopted in the Seventh Circuit.

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But it's not necessary for this particular case.

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As in David, there's an insufficient basis on which this court can judge the validity of Mr. Dahm's jury waiver.

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taking a de novo approach.

[00:07:56] Speaker 05:
Maybe I'm missing something, but I still don't get it.

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So I'm imagining we're at the district court, right?

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Yes.

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What was there about the proceeding that would give the district court some notice that there was a problem?

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The lawyer said nothing about it, right?

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Said nothing about it.

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There's nothing from Mr. Dahm's conduct that would suggest that there was a problem here.

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Am I right that it wasn't until the sentencing hearing that this issue was even raised?

[00:08:23] Speaker 07:
That's right, Your Honor, but it's a... So help me that.

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So your district court, we're trying to figure out what's the right way for the district court to act.

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What was it about those circumstances that should have alerted the district court to say, oh, complete and total compliance with Rule 23 is, in this instance, inadequate.

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Therefore, I'm going to engage in a colloquy.

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What was there?

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What was there in front of her that should have triggered that?

[00:08:50] Speaker 07:
There is nothing in front of her, but the point is that a Rule 23A waiver alone isn't sufficient to waive a right to a jury trial.

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The district court has a responsibility to determine whether that waiver is being made voluntarily, intelligently, knowingly.

[00:09:04] Speaker 04:
So you're telling us that the rule should be for district court judges.

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We're going to reverse this case.

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And in the future, you don't have to do enough colloquy all the time.

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But if it turns out after the fact that you don't do the colloquy and there's something that you didn't know about and that the lawyers didn't tell you about, you could still get reversed again.

[00:09:32] Speaker 07:
I think this court could hold consistent with its decision in David that, you know, we strongly encourage district courts to always conduct an oral colloquy because there's every reason to conduct one and no reason not to.

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And in this particular instance where there's evidence of mental illness that we find in the record and there's an absence of an oral colloquy, there's just an insufficient basis to judge the validity.

[00:09:54] Speaker 04:
But David was a case where there were all kinds of red flags for the district court.

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And that's one of the reasons why there was a reversal or a remand in that case.

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And there's no red flag here.

[00:10:08] Speaker 07:
The same principle still applies, Your Honor.

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It's a responsibility of the district court.

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It shouldn't be delegated to the lawyers.

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The burden is properly based on the district court to evaluate.

[00:10:17] Speaker 01:
But the implication of our questions, I think, is that any defendant who was convicted could likely make the same

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argument based on the same type of medical evidence that's in this record?

[00:10:36] Speaker 07:
It's certainly possible, Your Honor, but I think it's the same argument that the government's making to a certain extent.

[00:10:41] Speaker 07:
It's relying on this image of a cunning defendant who's trying to game the system, but relying on that image fails to protect defendants who are suffering from real mental health issues.

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that affect their ability to make important decisions.

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And it's far better in this case to place the burden on the district court and on the government to conduct the simple oral colloquy.

[00:11:02] Speaker 05:
So can you imagine if you were district after a ruling like you're asking for, can you imagine any circumstance under which a district court judge would not engage in the colloquy?

[00:11:12] Speaker 07:
Would choose not to?

[00:11:13] Speaker 05:
Yeah, would choose not to.

[00:11:14] Speaker 07:
I would hope that every district court would engage in a moral cause.

[00:11:18] Speaker 05:
And that's beyond the rule, right?

[00:11:20] Speaker 05:
The rule doesn't require that.

[00:11:22] Speaker 07:
This court encourages that.

[00:11:23] Speaker 05:
Strongly encourages that.

[00:11:25] Speaker 05:
But there's a difference between encouraging and making it the law, right?

[00:11:27] Speaker 07:
That's correct.

[00:11:28] Speaker 05:
That's right.

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So what you're asking is that we take a best practice and change the law.

[00:11:32] Speaker 05:
Congress hasn't seen fit to do that.

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But you, Court of Appeals, go ahead and do that.

[00:11:38] Speaker 05:
That's something we're quite reluctant to do.

[00:11:41] Speaker 07:
Again, I don't think that this court needs to make that blanket rule.

[00:11:45] Speaker 07:
It could limit its rule.

[00:11:46] Speaker 05:
But I don't understand.

[00:11:47] Speaker 05:
No, I'm sorry.

[00:11:48] Speaker 05:
I must be missing something about your argument, because you're arguing for just that blanket rule.

[00:11:54] Speaker 05:
You're telling us, and I understand it, that when a district court judge has no evidence whatsoever that there may be any problem with the competency of the defendant, and the defendant's attorneys say nothing about it, that under that circumstance,

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A district court judge must engage in a colloquy to discover if there's a mental health problem.

[00:12:16] Speaker 05:
That is a significant amendment of the rule, and maybe it's a good one.

[00:12:23] Speaker 05:
But typically, we'd say, take those good ideas to Congress.

[00:12:27] Speaker 05:
They're the ones that sets these rules.

[00:12:29] Speaker 07:
Our position is simply that where there's evidence of mental illness and the absence of a neural colic, we... Evidence discovered at any time.

[00:12:35] Speaker 05:
Yes, Your Honor.

[00:12:36] Speaker 07:
That's precisely the reason that this report should conduct this inquiry in the first instance.

[00:12:43] Speaker 04:
Let me ask the question a different way.

[00:12:49] Speaker 04:
We have held, previously, that the colloquy isn't ordered every time.

[00:12:57] Speaker 04:
Then, how can this panel rule in your fashion, rather than the unbumped court having to do so?

[00:13:09] Speaker 04:
Because, I mean, hasn't your argument effectively been rejected and pulled into this court, and David and Laura Lawson,

[00:13:18] Speaker 07:
I think our argument is entirely consistent with David, which is that the court and David said, we're going to decline to impose a supervisory rule at this point because we don't find it necessary.

[00:13:28] Speaker 07:
But we strongly encourage district courts to conduct this colloquy.

[00:13:31] Speaker 07:
And on the record in front of us, there's an insufficient basis to determine the validity of that waiver.

[00:13:37] Speaker 07:
And I see I'm out of time.

[00:13:38] Speaker 07:
I still have two arguments, but I'm happy to address them on rebuttal unless this court has further questions.

[00:13:43] Speaker 01:
What are the other two that you want to address on rebuttal?

[00:13:47] Speaker 07:
The second issue that I want to address is that the district court effectively read the word corruptly out of the obstruction of justice statute.

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And what's the third?

[00:13:55] Speaker 07:
The third is that it relates to the subordination of perjury convictions.

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And here we're arguing that subordination of perjury has been interpreted to require

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that a defendant knowingly and willfully induced perjury.

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And these are issues that were never raised in the district court.

[00:14:10] Speaker 07:
That's correct, Your Honor.

[00:14:11] Speaker 01:
All right, thank you.

[00:14:14] Speaker 01:
All right.

[00:14:17] Speaker 01:
Counsel for Helen D'Aiaio.

[00:14:27] Speaker 01:
With apologies on the pronunciation.

[00:14:30] Speaker 02:
Good afternoon.

[00:14:31] Speaker 02:
May it please the Court, Brian Marcy, for appellant Amman Pasha.

[00:14:35] Speaker 02:
If I might continue the discussion on the Sixth Amendment standard and accepting that rule that I agree that under David and this Court's precedence, red flags are required on the record to trigger a need for a colloquy, we would submit that in Amman's case there were three.

[00:14:50] Speaker 02:
The first was that this was a multi-defendant trial with several unique aspects.

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The second is that the waiver forms that were submitted were submitted and apparently prepared by the attorney for just one defendant.

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And the third is the complete silence on the record in this case from Iman Pash's attorney.

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And we think that distinguishes this case from some others.

[00:15:10] Speaker 05:
Was there any objection by Iman's attorney?

[00:15:13] Speaker 02:
There was not, in fact.

[00:15:14] Speaker 05:
Was the attorney present at all the critical moments?

[00:15:18] Speaker 02:
She was present at the sole courtroom discussion of the waiver issue, but what's a little bit different about this case than others is that that courtroom discussion didn't involve the final relinquishment of the right.

[00:15:28] Speaker 02:
We would submit that it was an unambiguously preliminary discussion about a possible future waiver.

[00:15:37] Speaker 02:
Sure, so the other two co-defendants councils got up and informed the district court that they expected that all defendants would be waiving their jury rights.

[00:15:46] Speaker 05:
Wasn't there some discussion that it was a tough call, there had been lots of conversation back and forth?

[00:15:51] Speaker 02:
That's true.

[00:15:52] Speaker 05:
Which suggests it was considered in detail by competent

[00:15:56] Speaker 02:
We'd submit it to be ambiguous.

[00:15:58] Speaker 02:
They said back and forth whether that means there was indecision or disagreement, but the other defendant's attorney said back and forth.

[00:16:05] Speaker 05:
But it wasn't done hastily, right?

[00:16:06] Speaker 05:
I mean, you can't read from that that somehow the decision was made hastily.

[00:16:11] Speaker 05:
There was a lot to this, right?

[00:16:14] Speaker 02:
It's unclear.

[00:16:15] Speaker 02:
The phrase from co-defendants council was there's been a lot of back and forth about this, and we expect that all defendants will be waiving the right.

[00:16:23] Speaker 02:
The district court took that information and indicated that she had never been apprised that that was a possibility, and the government hadn't either.

[00:16:29] Speaker 02:
And so the conversation ended with the government receiving a few days to think about it, and the district court then proceeding to read her jury selection procedures.

[00:16:37] Speaker 02:
Apparently, on the expectation that there was still some real chance that the case would go forward to a jury.

[00:16:44] Speaker 02:
So we would submit that that would have been an inappropriate time for Eman to stand up and interject and object.

[00:16:51] Speaker 02:
The next time that the defendants are in the courtroom, it's opening statements.

[00:16:55] Speaker 02:
So we think that's a different case than some of the others from other circuits, where the defendant sits silently by while her own counsel

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fully and unambiguously waives her right to the district court.

[00:17:06] Speaker 02:
That wasn't the case here.

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Iman's counsel never spoke at all.

[00:17:10] Speaker 02:
Another important thing we think about this multi-defended trial is that you had Iman on trial with two individuals with fairly powerful influence over her, her boss and her mother.

[00:17:21] Speaker 02:
We think under Gordon... How old?

[00:17:23] Speaker 05:
Remind me, how old was Miss Pasha?

[00:17:25] Speaker 02:
She's in her thirties.

[00:17:26] Speaker 02:
So she's certainly not a minor.

[00:17:28] Speaker 05:
How long has she been involved in the criminal justice system, professionally?

[00:17:33] Speaker 02:
Professionally, I think close to a decade at that point.

[00:17:36] Speaker 02:
There's nothing in the record how familiar she was with courtroom procedure, however, even though she was certainly working for a criminal defense attorney.

[00:17:45] Speaker 02:
The court's decisions in David and Gordon talk about the fact that advice on the technical distinction between a bench and a jury trial isn't sufficient.

[00:17:52] Speaker 02:
That advice that comes, a waiver that comes from misinformation or incomplete information from counsel can be reversible error.

[00:18:00] Speaker 02:
And we think in this multi-defendant trial context,

[00:18:03] Speaker 02:
particularly with Iman on trial with her boss and her mother, there were two questions that a colony could have answered and should have answered.

[00:18:10] Speaker 02:
The first was whether Iman understood that she couldn't be outvoted on this question by those two individuals.

[00:18:16] Speaker 02:
And the second was whether she understood that she could retain her jury right without impairing her interests.

[00:18:20] Speaker 02:
That is all I know.

[00:18:21] Speaker 01:
I understand all of this if I was sitting as the district court, but now we're on appeal.

[00:18:27] Speaker 01:
And none of this was mentioned to the district court, and it sounds like

[00:18:33] Speaker 01:
you know, the fact that counsel didn't say, I agree.

[00:18:36] Speaker 01:
On that basis, you're seeking reversal.

[00:18:43] Speaker 01:
Let me just clarify for the record because my list

[00:18:47] Speaker 01:
as you arguing third, but you are representing Iman Pasha.

[00:18:54] Speaker 01:
Is that correct?

[00:18:54] Speaker 02:
That's correct, and I apologize.

[00:18:56] Speaker 01:
So let's just correct the record on that.

[00:18:59] Speaker 00:
Thank you.

[00:19:00] Speaker 00:
No, it's not your fault.

[00:19:02] Speaker 01:
I just want to be clear.

[00:19:03] Speaker 01:
Counsel, you heard me stumble over the name.

[00:19:07] Speaker 01:
And be sure to alert the judge who you represent.

[00:19:12] Speaker 02:
I apologize for that.

[00:19:15] Speaker 01:
So in any event, she's been in the system for 10 years.

[00:19:19] Speaker 01:
She's an investigator.

[00:19:21] Speaker 01:
She works for an attorney.

[00:19:23] Speaker 01:
She was represented by her own attorney.

[00:19:27] Speaker 01:
And no one here has made any allegations about ineffective assistance of counsel.

[00:19:32] Speaker 02:
That's right.

[00:19:35] Speaker 01:
And we ought to read all these factors in.

[00:19:38] Speaker 01:
I mean, multi-defendant trials happen every day.

[00:19:44] Speaker 02:
That's certainly true.

[00:19:45] Speaker 01:
That can't be one basis for reversal.

[00:19:50] Speaker 01:
No, but I... She's not a stranger to the criminal justice system.

[00:19:58] Speaker 01:
There's no indication that she suffers from any mental defect or is slow mentally.

[00:20:08] Speaker 02:
Right.

[00:20:09] Speaker 02:
Although this court's presences have reversed convictions on inappropriate waivers without evidence of mental health issues.

[00:20:15] Speaker 01:
No, I agree.

[00:20:16] Speaker 01:
But I'm just trying to understand what counsel are asking us to do.

[00:20:19] Speaker 01:
These trials go on every day.

[00:20:21] Speaker 01:
Counsel know how to make objections to the district court.

[00:20:25] Speaker 01:
The district court knows how to respond.

[00:20:28] Speaker 01:
Here, everybody's quiet.

[00:20:29] Speaker 02:
Right.

[00:20:30] Speaker 01:
And then they come to the court of appeals and want everything reversed.

[00:20:33] Speaker 01:
That's what I'm getting at.

[00:20:35] Speaker 02:
Sure.

[00:20:36] Speaker 02:
And I think this is a case where, as you note, everyone was quiet at the trial stage, much like the Gordon case, where the waiver occurred based on what this court described as misinformation from the attorney that could have been resolved in a college case.

[00:20:48] Speaker 01:
And that's why I mentioned no one has even hinted at ineffective assistance of counsel.

[00:20:55] Speaker 01:
So we're faced with a situation where the client is fully satisfied with her attorney.

[00:21:02] Speaker 01:
There's no suggestion that the attorney did not do what he or she was supposed to do in properly advising your client, and yet we should still reverse.

[00:21:15] Speaker 01:
That's what you're asking.

[00:21:16] Speaker 01:
Because it was a multi-defendant trial.

[00:21:19] Speaker 02:
It was a multi-defendant trial.

[00:21:21] Speaker 02:
There's a question that it's a situation where this defendant's attorney was never engaged in any discussion with the district court, which we would submit is unusual compared with other cases.

[00:21:31] Speaker 05:
And why wasn't he?

[00:21:33] Speaker 05:
I mean, was there something about the proceeding that forbade him from being engaged?

[00:21:39] Speaker 02:
I think there's two reasons.

[00:21:40] Speaker 02:
One, other attorneys counsel were speaking at the time.

[00:21:43] Speaker 05:
And second, when I was an attorney, I was involved in plenty of multi-party litigation.

[00:21:49] Speaker 05:
And it would just be absurd if I had told the client, sorry.

[00:21:54] Speaker 05:
There were just so many lawyers there.

[00:21:55] Speaker 05:
I couldn't speak up for you.

[00:21:57] Speaker 05:
That might be ineffective assistance of counsel.

[00:21:59] Speaker 05:
But as Judge Rogers pointed out, there's no hint of that at all.

[00:22:03] Speaker 05:
So the mere fact that there were a couple of other lawyers there and her lawyer chose not to speak, somehow that's a red flag.

[00:22:12] Speaker 02:
I think it is a red flag when it's not the final, there's no indication from that discussion that it would be the last time the court was taking up this issue.

[00:22:20] Speaker 02:
That discussion ends in a very preliminary state where the government's going to go back and think about it and the district court discusses then her jury selection procedure.

[00:22:30] Speaker 02:
So we think it would have been the wrong moment for the client to interject.

[00:22:37] Speaker 01:
All right.

[00:22:37] Speaker 01:
Anything further?

[00:22:38] Speaker 01:
Thank you.

[00:22:40] Speaker 01:
All right.

[00:22:42] Speaker 01:
It's the counsel Allen for Appellant Daiyaa Pasha.

[00:22:46] Speaker 03:
Thank you, Your Honor.

[00:22:48] Speaker 03:
May it please the Court, when Allen on behalf of Appellant Daiyaa Pasha, I would reserve one minute for rebuttal.

[00:22:56] Speaker 03:
The district court's fundamental error with respect to Ms.

[00:22:58] Speaker 03:
Pasha was failing to separately evaluate the evidence against Daiyaa specifically, and instead unfairly lumping her together with the other defendants in this case.

[00:23:08] Speaker 03:
The overwhelming majority of the evidence cited in the district court's opinion had nothing to do with Daia Apoche.

[00:23:13] Speaker 05:
Who identified her as being part of this Valentine's Day party?

[00:23:18] Speaker 05:
Who says she was there?

[00:23:20] Speaker 03:
In the district court's opinion, the district court identified two witnesses who identified Daia Apoche being present for the photo shoot.

[00:23:27] Speaker 03:
One was Jerome White.

[00:23:29] Speaker 03:
And one was Candace Roberts.

[00:23:30] Speaker 03:
And who said she was not there?

[00:23:32] Speaker 03:
That's Brittany McDaniels, a friend of Ms.

[00:23:35] Speaker 03:
Robertson's, I believe, who was also present at the photo shoot and who, when specifically asked on cross-examination to look at Ms.

[00:23:42] Speaker 03:
Pasha and say what she did there, she said she was not the investigator she saw.

[00:23:45] Speaker 05:
Yeah, and Jerome and Candace's testimony, if I'm getting this right, wasn't restricted simply to her appearance at the Valentine's Day shoot, right?

[00:23:53] Speaker 03:
It was not.

[00:23:54] Speaker 05:
What else did they say to him?

[00:23:55] Speaker 03:
They testified to a number of different facts, but if you're asking what else did they testify to with respect to Daya Pasha, they identified her as being present at a planning meeting that happened the morning of the photo shoot.

[00:24:08] Speaker 03:
Mr. White's testimony was actually particularly telling him that because he originally testified that Ms.

[00:24:12] Speaker 03:
Pascha was there.

[00:24:13] Speaker 03:
Then he said, well, I can't remember who was there, but an investigator was there.

[00:24:17] Speaker 03:
And then he said, I can't remember if the investigators were in the upstairs room where these discussions about the conspiracy were happening.

[00:24:25] Speaker 03:
So I think the district court didn't cite any of the planning, meeting, testimony of her opinion.

[00:24:29] Speaker 04:
Is this your sufficiency argument or your Brady argument?

[00:24:32] Speaker 03:
This is my sufficiency argument, Your Honor.

[00:24:35] Speaker 05:
In the district court, how did she describe her reasoning when she had conflicting testimony between none of them were characters who

[00:24:46] Speaker 05:
were particularly savory, right, or had particularly good track records when it came to credibility, right?

[00:24:54] Speaker 05:
Yet her determination is based on credibility, right?

[00:24:57] Speaker 05:
She made that very clear.

[00:24:58] Speaker 05:
She did.

[00:24:59] Speaker 05:
Because she's making a credibility determination.

[00:25:00] Speaker 03:
She did, and she gave a number of reasons for that.

[00:25:02] Speaker 03:
And I think it's important to look at those reasons, because when you look at them, none of them pertain to

[00:25:06] Speaker 05:
Once again, I'm setting this up because obviously we're in a realm where all of a sudden, at least this judge's interest gets much less keen, right?

[00:25:14] Speaker 05:
Because we're told credibility determinations are to be made by the trier of fact, and we're not triers of fact.

[00:25:20] Speaker 05:
That's true, but in this situation... You're going to take her on on credibility.

[00:25:24] Speaker 05:
You had a big hill to climb.

[00:25:26] Speaker 03:
Well, I think it would be almost harder in a jury case where you're looking at a black box.

[00:25:30] Speaker 03:
Here we have a 29-page verdict opinion from Judge Kessler, where she outlines the reason she gave for why she found these particular witnesses credible on a certain issue.

[00:25:38] Speaker 05:
And you think that her reasoning is flawed.

[00:25:40] Speaker 03:
Well, I think her reasoning, when looked at specifically with respect to Daiya Pasha, does not point to anything that would lend credence to the testimony of otherwise incredible witnesses.

[00:25:50] Speaker 03:
For example, on J.A.

[00:25:52] Speaker 05:
80s... Now, we've got a problem here in that we're dealing with... You don't have any credible witnesses, are there?

[00:25:56] Speaker 05:
I mean, this is a rogues gallery of sorts.

[00:25:59] Speaker 03:
Well, with respect, there were some witnesses the district court credited.

[00:26:02] Speaker 05:
Yeah.

[00:26:02] Speaker 05:
Yeah.

[00:26:02] Speaker 05:
But I think credited, but I'm saying we're talking about...

[00:26:05] Speaker 05:
people, any one of whom could be attacked on cross-examination by any attorney, right?

[00:26:10] Speaker 05:
I mean, you know, we don't have the, you know, the 12 priests or whatever the phrase is.

[00:26:15] Speaker 03:
Correct, Judge Griffith, but that's why Judge Kessler thought appropriately so, thought it was important to look to, quote, independent evidence that strongly bolstered the government's case.

[00:26:22] Speaker 03:
And when you look at that independent evidence with respect to Daiya Pasha, none of that implicates her in this case.

[00:26:28] Speaker 03:
It might say something about Mr. Daum or some of the other defendants, but when you look at her specifically, none of that evidence implicates her.

[00:26:34] Speaker 03:
Of the thousands of telephone call records that the government has between the witnesses in this case, which Judge Kessler cited, none mentions Daya Pasha by name or captures her voice.

[00:26:43] Speaker 03:
None of the jail logs produced in this case records Daya's name or mentions her visiting any of the key players in the conspiracy below.

[00:26:49] Speaker 04:
And the government produced no other documentary or independent evidence to support- Counsel, the standard for having us reject the testimony of a witness has been credible as a matter of law.

[00:27:02] Speaker 04:
is very high, and I would submit that I don't know of any case where it's actually been met.

[00:27:11] Speaker 04:
And there were at least a couple of witnesses that placed your client at the party.

[00:27:19] Speaker 04:
So that's going to be an uphill mountain for you to climb.

[00:27:22] Speaker 04:
If you've got something to say about your Brady argument, I'd like to hear that.

[00:27:26] Speaker 03:
Well, yes, Judge, with the Brady argument, just one last thing.

[00:27:31] Speaker 03:
It's not insufficient as a matter of law.

[00:27:33] Speaker 03:
It's incredible as a matter of law.

[00:27:34] Speaker 03:
It's that the evidence, when looked at through the lens of Miss Pascha, doesn't need a sufficiency argument.

[00:27:38] Speaker 03:
But if the court's interested in hearing about the Brady argument, I think that is telling.

[00:27:42] Speaker 03:
Because Judge Kessler made, at JA 159, she made some very interesting findings about the Brady.

[00:27:48] Speaker 03:
She said it's very clear that it's exculpatory.

[00:27:50] Speaker 03:
It's very clear that it was suppressed.

[00:27:53] Speaker 01:
And she said.

[00:27:53] Speaker 01:
That's what she said initially.

[00:27:55] Speaker 01:
That was before, that was her evaluation at the outset.

[00:28:00] Speaker 01:
I agree, it's there, black and white, but

[00:28:05] Speaker 01:
By the time she had to make the ultimate ruling, she had other information.

[00:28:09] Speaker 03:
She did.

[00:28:10] Speaker 03:
And she gave two reasons for that.

[00:28:11] Speaker 03:
First of all, she said all the other evidence upon which the court relied on its final verdict.

[00:28:17] Speaker 03:
That's the only reason she gave for why there was no prejudice here.

[00:28:19] Speaker 03:
And again, it brings me back to my sufficiency argument.

[00:28:21] Speaker 03:
If you look at the evidence with respect to my client specifically, there is not a ton of other evidence against her.

[00:28:27] Speaker 03:
This case with respect to Daye Pasha was on the razor's edge, at the very least.

[00:28:32] Speaker 03:
And it was the testimony of one individual who said it was a young woman and a man who was present, very easily could have pushed that over the edge, or at least there's a reasonable probability that it could have done so.

[00:28:44] Speaker 05:
From who?

[00:28:46] Speaker 03:
Pardon me.

[00:28:46] Speaker 05:
Who was going to push it over the edge?

[00:28:48] Speaker 03:
You mean, well, if it had to be the finer fact, the district court judge to reason with.

[00:28:51] Speaker 05:
I mean, whose testimony was going to push it over the edge?

[00:28:53] Speaker 03:
Oh, Everett Montgomery, Your Honor.

[00:28:55] Speaker 05:
His testimony was going to push it over the edge.

[00:28:56] Speaker 05:
Well, I would like to cross-examine him.

[00:28:59] Speaker 05:
That's an easy one, right?

[00:29:00] Speaker 05:
Right.

[00:29:00] Speaker 05:
I mean, if that's your argument, that his testimony is going to push it over the edge,

[00:29:06] Speaker 05:
I mean, the trial counsel realized the problems here and tried to strike a deal, no cross-examination.

[00:29:13] Speaker 05:
That was a clever move.

[00:29:14] Speaker 05:
Yeah, put him on, but no cross-examination.

[00:29:17] Speaker 05:
Why do you think that he didn't want him cross-examined?

[00:29:20] Speaker 03:
Well, I submit it's because the government – his memory had eroded over the eight-month period because the government's delay in disclosing what was very clearly exculpatory evidence with respect to my client.

[00:29:32] Speaker 03:
He – Mr. Montgomery himself submitted an affidavit where he said if he had asked me a year ago – I find it really hard to believe that you would put somebody like Mr. Montgomery on the stand.

[00:29:40] Speaker 05:
He's not a credible witness.

[00:29:42] Speaker 05:
The evidence is overwhelming.

[00:29:44] Speaker 05:
He's not.

[00:29:45] Speaker 05:
He had lots of testimony that he was inebriated at the time.

[00:29:49] Speaker 03:
With respect to the evidence against my client was hardly overwhelming.

[00:29:54] Speaker 03:
It was very thin.

[00:29:55] Speaker 03:
And I submit it was insufficient.

[00:29:57] Speaker 03:
If the court disagrees with me with that, it was at least a very close call.

[00:30:00] Speaker 03:
And something like this could easily have tipped the balance one way or the other.

[00:30:05] Speaker 03:
Thank you, Your Honor.

[00:30:11] Speaker 01:
All right.

[00:30:11] Speaker 01:
Counsel for the government.

[00:30:13] Speaker 06:
Good afternoon.

[00:30:14] Speaker 06:
May it please the court.

[00:30:16] Speaker 06:
I'm Kirby Heller for the government.

[00:30:18] Speaker 06:
Let me start with the waiver of the jury trial as to the defendant.

[00:30:23] Speaker 06:
Not only was there no red flag in this case, as the court has noted in its questioning,

[00:30:29] Speaker 06:
There were many circumstances that would give the court confidence that these were knowing, involuntary, and intelligent waivers.

[00:30:39] Speaker 06:
There was a full written waiver.

[00:30:41] Speaker 06:
There was a colloquy in court in which there was a

[00:30:46] Speaker 06:
The defense counsel represented that there had been a lot of discussion among all the defendants and their counsel.

[00:30:53] Speaker 06:
They were fulsome discussions, and they were prepared to waive their jury trial right.

[00:30:58] Speaker 06:
But because they were springing it really for the first time in front of the court and the government, it wasn't going to happen then because the government was going to have to go back and think about it, which it did, and then consent it as well.

[00:31:10] Speaker 05:
In addition, of course, we have... But isn't it right that the colloquy doesn't take much, right?

[00:31:17] Speaker 05:
I mean, it's why we urge district court judges to do it all the time.

[00:31:24] Speaker 06:
It certainly doesn't take much, and I think it was an oversight by the court, because the court later stated in its verdict that it accepted the waivers on the day that this status number- Why do we encourage judges to do that?

[00:31:37] Speaker 05:
Why is it a best practice?

[00:31:39] Speaker 05:
Why does the case law suggest that it's something they should do?

[00:31:42] Speaker 05:
Why?

[00:31:43] Speaker 05:
Why is that?

[00:31:43] Speaker 06:
Well, an oral colloquy will.

[00:31:45] Speaker 06:
Sometimes there are no written waivers.

[00:31:48] Speaker 06:
The question is a constitutional question, whether they voluntarily and intelligently.

[00:31:53] Speaker 05:
Isn't it to ferret out the very problem that's being identified now?

[00:31:58] Speaker 06:
You're right, Your Honor.

[00:31:59] Speaker 05:
And the failure to ferret that out, why isn't that a structural problem here?

[00:32:05] Speaker 06:
It's certainly the better practice.

[00:32:08] Speaker 06:
It's not required.

[00:32:10] Speaker 06:
And even in the Seventh Circuit, which has the supervisor rule.

[00:32:12] Speaker 05:
OK, but when we're talking about better practices on constitutional issues, that has some resonance, doesn't it?

[00:32:20] Speaker 06:
Well, except the question is, in a constitutional sense, whether this was a knowing and voluntary waiver.

[00:32:27] Speaker 06:
And the court looks at the totality of the circumstances.

[00:32:30] Speaker 01:
Let me ask you your reference.

[00:32:32] Speaker 01:
You said the district court acknowledged at some point it was an oversight not to have conducted a colloquy.

[00:32:40] Speaker 01:
Where did the district?

[00:32:41] Speaker 06:
No, I didn't mean to.

[00:32:42] Speaker 06:
I'm sorry, Your Honor.

[00:32:42] Speaker 06:
I didn't mean to suggest that what I said was an oversight.

[00:32:45] Speaker 06:
The district court

[00:32:46] Speaker 06:
In its written verdict, I accepted the waivers.

[00:32:52] Speaker 06:
And so I interpret that as the court thought it did.

[00:32:55] Speaker 01:
Well, I didn't see that.

[00:32:58] Speaker 01:
And I didn't see it in anyone's brief either.

[00:33:00] Speaker 01:
But let me ask you, suppose hypothetically we had a case of a certifiably committable defendant who

[00:33:15] Speaker 01:
to the average person appears perfectly normal and can answer simple questions.

[00:33:25] Speaker 01:
And a colloquy, which everybody thinks is going to be the cure-all here, I wonder about that.

[00:33:34] Speaker 01:
The judge says to the defendant, are you sure you really want to waive your jury trial?

[00:33:38] Speaker 01:
The defendant says, yes, Your Honor.

[00:33:40] Speaker 01:
Have you discussed this with your attorney?

[00:33:41] Speaker 01:
Yes.

[00:33:42] Speaker 01:
Are you satisfied with your attorney's representation?

[00:33:45] Speaker 01:
Yes.

[00:33:45] Speaker 01:
Then what?

[00:33:48] Speaker 01:
So, my hypothetical is you have this certifiable person.

[00:33:54] Speaker 01:
Does the government's position change any in that type of situation?

[00:34:00] Speaker 06:
Well, again, if something has come before the court, nothing's come before the court.

[00:34:05] Speaker 01:
I'm saying that at the time this court looks, there's been no post-judgment motion.

[00:34:13] Speaker 01:
District court is totally oblivious to any concern.

[00:34:18] Speaker 01:
It isn't until we get to the Court of Appeals that we hear about this.

[00:34:28] Speaker 06:
Well, our position is it would be reviewed for plain error.

[00:34:32] Speaker 06:
That's the first thing.

[00:34:33] Speaker 06:
And so under the first prong of plain error was there error.

[00:34:38] Speaker 06:
And again, let's assume that there was error because somehow there wasn't enough on the record to satisfy the judge.

[00:34:50] Speaker 06:
I'm not sure there was under your hypothetical.

[00:34:52] Speaker 01:
Well, under my hypothetical, I was trying to come up with a situation where it's perfectly obvious

[00:34:57] Speaker 01:
there's a problem, but that would be fact-finding by this Court at a minimum unless we remanded it to the District Court for the purpose of making a further inquiry.

[00:35:10] Speaker 06:
And certainly, the court could do that.

[00:35:12] Speaker 06:
But in your hypothetical, because it is reviewed for a plain error, it's going to be up to the defendant to satisfy the burden of showing the error that it's plain, and most significantly, the third prong that it affected the substantial rights.

[00:35:28] Speaker 01:
So on the first prong.

[00:35:31] Speaker 01:
Is it the government's position, then, it is appropriate for the appellate court to look at what is in the record, to determine whether or not there was some reason for the district court to have inquired further?

[00:35:49] Speaker 06:
No, I think our position would be a remand would be appropriate in that circumstance.

[00:35:54] Speaker 06:
And in fact, yeah.

[00:35:56] Speaker 01:
Well, then a remand in every circumstance?

[00:35:59] Speaker 06:
Well, if there's two things.

[00:36:03] Speaker 06:
One is, of course, if it's unclear on the record, and this court is not satisfied that the district court had a satisfactory basis for accepting the waiver.

[00:36:16] Speaker 06:
the court could remand, should remand, and that's David in fact.

[00:36:21] Speaker 06:
What the court said in David is, of course there were indications of the record in David, but what the court said is we're not saying it's not voluntary.

[00:36:28] Speaker 06:
What we're saying is

[00:36:29] Speaker 06:
We're not sure that the district court did not have a sufficient basis.

[00:36:35] Speaker 06:
We're not sure whether the district court had a sufficient basis.

[00:36:37] Speaker 06:
We're going to remand.

[00:36:38] Speaker 06:
Well, in fact, I'm sorry.

[00:36:39] Speaker 06:
It didn't remand it because of the difficulty in resurrecting what happened.

[00:36:44] Speaker 06:
But one could remand if it was close in time.

[00:36:47] Speaker 01:
So what would the government's position be on counsel's argument here, then, that counsel says the implication of

[00:36:58] Speaker 01:
The argument on behalf of her client is not that there must be a colloquy in every case, but that at the point when the appellate court has some information, then following up on Judge Wilkins' point, the court may find itself looking at the case again.

[00:37:19] Speaker 06:
Well, we don't believe that this case comes even close to the hypothetical that Your Honor was positing.

[00:37:26] Speaker 06:
In this case, we have just a variety of circumstances that certainly show that this was a knowing waiver.

[00:37:37] Speaker 06:
And I just want to point out that we had

[00:37:41] Speaker 06:
a four-week bench trial.

[00:37:42] Speaker 06:
The case was on the docket for two years.

[00:37:46] Speaker 06:
And Mr. Down was in front of the court for one has to assume all of those court proceedings.

[00:37:54] Speaker 06:
At no time did anything come up to suggest that because of the material in the

[00:38:01] Speaker 06:
the sealed appendix, which, by the way, does not show, I believe, mental illness, that there was any question about Mr. Down's confidence to waive his right to a jury trial.

[00:38:14] Speaker 06:
And I should point out, even at sentencing, after this material had been disclosed, it's not discussed in the sentencing itself.

[00:38:21] Speaker 06:
The only health issue discussed at sentencing is Mr. Down's pacemaker.

[00:38:27] Speaker 05:
Can I ask you a question?

[00:38:29] Speaker 05:
I think it was Mr. Allen's point about the insufficiency of the evidence against Daya Pasha.

[00:38:38] Speaker 05:
In your view, what is the evidence against her that links her to the conspiracy that we ought to credit?

[00:38:44] Speaker 06:
This is a sufficiency claim.

[00:38:47] Speaker 05:
Was there evidence besides what Jerome and Candace offered about her being at the photo shoot?

[00:38:52] Speaker 05:
Let's put that to one side, and what else is there?

[00:38:55] Speaker 06:
Well, as to corroborating Jerome's identification, he identified Diopasha from a photo spread about a year after the photo shoot.

[00:39:10] Speaker 06:
He picked her out from her photo spread as one of the investigators, the mother of the two.

[00:39:16] Speaker 06:
That's very strong evidence corroborating his oral identification of Diopasha before it.

[00:39:25] Speaker 06:
In addition, what we have really is fairly overwhelming evidence that the two people who were involved in the photo shoot, who brought the props and took the photos and instructed Jerome to be cutting up soap, were down as investigators.

[00:39:44] Speaker 06:
We have that from all three witnesses, including the witness who didn't identify Daya, and we have that corroborated

[00:39:51] Speaker 06:
by the phone conversations.

[00:39:53] Speaker 06:
There are at least three or four phone conversations where they talk about Downs investigators doing what they had to do.

[00:40:00] Speaker 05:
Who was involved in the phone conversations?

[00:40:02] Speaker 06:
I'm sorry?

[00:40:03] Speaker 05:
Who was involved in the phone conversations?

[00:40:05] Speaker 06:
There were, it was Candace Robertson with Vellante White and Brittany McDaniels also with Vellante White.

[00:40:15] Speaker 06:
And then we have evidence that shows that Daya Pasha was one of Down's investigators.

[00:40:22] Speaker 06:
So for example, Mr. Down's secretary said that the two Pashas were the only investigators at the time.

[00:40:30] Speaker 06:
And although she didn't remember Daya Pasha being involved early on, of course, the photo shoot took place right before the trial.

[00:40:37] Speaker 06:
That wasn't early on.

[00:40:38] Speaker 06:
But she did say that they were the only two investigators at the time.

[00:40:45] Speaker 06:
The paralegal working for Mr. Down talked about how he interacted with the two of them over the staged photos.

[00:40:54] Speaker 06:
He had both Pasha's names in his cell phone.

[00:40:58] Speaker 06:
We have Daya Pasha going with Mr. Down to inspect the evidence.

[00:41:04] Speaker 06:
That's not incriminating, but it shows that she's one of the investigators working on the case.

[00:41:09] Speaker 01:
That's all it shows.

[00:41:10] Speaker 01:
That's what I'm trying to find is the incriminating evidence here.

[00:41:13] Speaker 06:
Well, the incriminating evidence is the testimony of Robertson and Jerome White, who say these two, Daya Pasha and Amman Pasha, were the established investigators who set up this photo shoot.

[00:41:27] Speaker 06:
If the evidence is sufficient to show that they were the ones who were there, then we would submit that the evidence is certainly sufficient to show obscurity.

[00:41:34] Speaker 01:
And they knew the purpose?

[00:41:36] Speaker 01:
It's a reasonable inference.

[00:41:37] Speaker 01:
They knew the purpose of the shoot.

[00:41:39] Speaker 06:
Absolutely.

[00:41:40] Speaker 06:
Absolutely.

[00:41:41] Speaker 06:
I think there is nothing innocent about what was going on there.

[00:41:45] Speaker 06:
They were having somebody, they came in with all these props, they brought the duplicate items, and they brought the balloons.

[00:41:52] Speaker 01:
None of that shows anything.

[00:41:55] Speaker 01:
I mean, in this sense, it's the duplication of the items and the fact that

[00:42:01] Speaker 01:
Is it Daya who went to the U.S.

[00:42:04] Speaker 01:
Attorney's Office to take a photograph of the items that had been seized?

[00:42:09] Speaker 06:
I mean, I'm just citing that evidence, the fact that she was working on the case, the incriminating evidence.

[00:42:14] Speaker 01:
I don't think she's denying that she was an investigator, all right, and that her daughter was also an investigator.

[00:42:22] Speaker 01:
And that they, on this case, and they worked for Attorney Down.

[00:42:28] Speaker 01:
I don't think that's the issue.

[00:42:31] Speaker 06:
I think certainly on a sufficiency claim that the Court could reasonably, a reasonable fact-finder, could infer that... Did Mr. Down have used other investigators besides the Pashas?

[00:42:42] Speaker 06:
He had.

[00:42:43] Speaker 06:
He mostly used them.

[00:42:45] Speaker 06:
At this particular time, it didn't appear that there was anyone else working for him, as the Secretary said they were the only two working at the time.

[00:42:53] Speaker 05:
At the time, okay.

[00:42:55] Speaker 05:
Let me ask you about the Brady issue.

[00:42:56] Speaker 05:
This is really troubling, what the government has done here.

[00:43:02] Speaker 05:
Why shouldn't we, when we

[00:43:04] Speaker 05:
meet this sort of misconduct, say that it just is a game changer.

[00:43:10] Speaker 05:
Sorry, government, you act that way and that's the end of it, right?

[00:43:18] Speaker 05:
Well, is Your Honor asking whether... I'm asking you to defend the result in light of the clear Brady violation.

[00:43:26] Speaker 06:
Well, it's our position that there wasn't a Brady violation.

[00:43:29] Speaker 06:
Of course, a Brady violation means that there was exculpatory evidence.

[00:43:33] Speaker 05:
Well, OK, I'm sorry.

[00:43:34] Speaker 05:
There was evidence withheld from the opposing side.

[00:43:38] Speaker 01:
That should have been turned over.

[00:43:39] Speaker 01:
That should have been turned over.

[00:43:41] Speaker 05:
It should have been under Brady.

[00:43:43] Speaker 05:
Yeah, yeah.

[00:43:43] Speaker 05:
You're going to say it was no requirement for this to be turned over?

[00:43:46] Speaker 06:
No.

[00:43:46] Speaker 06:
It's exculpatory.

[00:43:47] Speaker 06:
All right.

[00:43:48] Speaker 06:
Then one gets to the second question, was it suppressed?

[00:43:51] Speaker 06:
It wasn't turned over immediately.

[00:43:54] Speaker 06:
But it was turned over in time.

[00:43:56] Speaker 01:
A month before trial.

[00:43:57] Speaker 06:
A month before trial.

[00:43:59] Speaker 01:
Long after the defendants have strategized on their defense, done their investigation, interviewed their potential witnesses, and the prosecutor knows this.

[00:44:11] Speaker 06:
So why wasn't it turned over?

[00:44:16] Speaker 06:
It was an oversight.

[00:44:18] Speaker 01:
Well, that's always.

[00:44:20] Speaker 01:
I need a little more than that.

[00:44:21] Speaker 01:
The best I could come up with was that trial prosecutors are busy.

[00:44:26] Speaker 01:
They have a lot of cases.

[00:44:29] Speaker 01:
Maybe this particular prosecutor hadn't started to focus on trial preparation.

[00:44:35] Speaker 01:
until a month before the trial date.

[00:44:37] Speaker 01:
But then I thought, there have been all these preceding events.

[00:44:42] Speaker 01:
So the prosecutor had focused on the case before then.

[00:44:45] Speaker 01:
It's not as though he was, or she, I can't remember, was newly assigned to the case.

[00:44:50] Speaker 06:
No, I think that they had certainly started trial preparation and focusing.

[00:44:56] Speaker 01:
But why wasn't it turned over?

[00:44:59] Speaker 06:
The only thing that I think is in the record is that they didn't, the prosecutor didn't, it really didn't realize it was there as soon as he was going.

[00:45:08] Speaker 04:
The prosecutor didn't say that.

[00:45:10] Speaker 04:
The prosecutor says, I didn't believe him.

[00:45:12] Speaker 04:
So we didn't talk to him anymore.

[00:45:15] Speaker 04:
That's absolutely wrong.

[00:45:17] Speaker 06:
Well, Your Honor, that's true, Your Honor, but I don't believe that was the reason for not turning it over, that we didn't believe him.

[00:45:23] Speaker 06:
The prosecutor acknowledged that it was expulcatory and apologized for not turning it over sooner.

[00:45:30] Speaker 06:
I believe he did say it was an oversight, and once he saw it and realized it and realized, of course it is.

[00:45:36] Speaker 04:
Well, I think that the best we could say is that the prosecutor didn't think about his or her Brady obligations, and therefore we need to do something to make him think about their Brady obligations.

[00:45:45] Speaker 06:
I wouldn't say that the prosecutor didn't think of his Brady obligations.

[00:45:50] Speaker 06:
He had been in a constant... Well, then it's even worse.

[00:45:53] Speaker 01:
It wasn't a Brady violation.

[00:45:55] Speaker 05:
Right.

[00:45:56] Speaker 05:
If he had thought about his Brady obligations and didn't turn it over, that's even worse, right?

[00:46:00] Speaker 06:
Well, as to this piece of evidence, as soon as he saw it and realized what this witness had said, he did turn it over.

[00:46:08] Speaker 06:
Is that right?

[00:46:10] Speaker 05:
As soon as he saw it?

[00:46:11] Speaker 05:
I thought that it was months had passed from when he took the statement until when he disclosed it.

[00:46:16] Speaker 06:
So that's true.

[00:46:17] Speaker 05:
That is true.

[00:46:18] Speaker 05:
So what you just said is not true.

[00:46:20] Speaker 05:
As soon as he saw it, he did not turn it over.

[00:46:23] Speaker 05:
As soon as he saw it, he put it somewhere else.

[00:46:25] Speaker 05:
And only a month before trial did he do it.

[00:46:30] Speaker 05:
I hope you haven't been asked to come by the government and defend that behavior because it's indefensible.

[00:46:36] Speaker 06:
Absolutely, Your Honor.

[00:46:37] Speaker 05:
The only question is, at least in this judge's mind, is it so indefensible that it overturns the decision of the district court?

[00:46:45] Speaker 05:
And it's a close call in this judge's mind.

[00:46:49] Speaker 06:
Well, let me address both those points.

[00:46:51] Speaker 06:
We're not defending it.

[00:46:52] Speaker 06:
The prosecutor at the district court didn't defend it.

[00:46:56] Speaker 06:
He apologized.

[00:46:57] Speaker 06:
He was sorry.

[00:46:58] Speaker 06:
He realized he should have turned it over.

[00:47:00] Speaker 06:
We're not defending it.

[00:47:01] Speaker 06:
Now we're addressing the legal issue about what are the implications for the delayed disclosure, not the suppression, on the convictions in this case.

[00:47:10] Speaker 06:
But no one is saying that's fine.

[00:47:13] Speaker 06:
You know, you can turn it over when you decide you want to turn it over.

[00:47:16] Speaker 06:
And I should point out, not that good faith or bad faith determines whether there's a Brady violation, but the district court did say that there was no bad faith.

[00:47:26] Speaker 04:
So it wasn't that the government was... I don't think that the district court said that.

[00:47:29] Speaker 04:
The district court said, I don't have to determine one way or the other whether there's bad faith.

[00:47:34] Speaker 06:
I believe the district court did make a finding, Your Honor, that there was not a finding, but mentioned that there was no bad faith.

[00:47:40] Speaker 06:
I think she said something like, let me be clear, I'm not saying that there was bad faith here.

[00:47:45] Speaker 04:
Yeah.

[00:47:45] Speaker 04:
Yeah.

[00:47:46] Speaker 04:
And I'm not sure, at any rate, we can quibble on that.

[00:47:50] Speaker 04:
But the point is that there was a specific Brady demand that was made.

[00:48:00] Speaker 04:
before this information was discovered by the government.

[00:48:06] Speaker 04:
As the district court said, it's clear that this is exculpatory, at least as to Daiya Pasha, but probably as to both of them.

[00:48:16] Speaker 04:
And it needs to be turned over in time to be meaningfully used by the defense.

[00:48:22] Speaker 04:
Eight months pass before it's turned over.

[00:48:27] Speaker 04:
And in that time, memories fade.

[00:48:31] Speaker 04:
So make your case as to why it was still able to be meaningfully used by the defense, given kind of how everything transpires after that, after the disclosure is made and the witness is kind of all over the place and says, I would have been able to tell you more if you had talked to me sooner.

[00:48:53] Speaker 06:
Certainly, Your Honor.

[00:48:54] Speaker 06:
First of all, the witness was interviewed by the government three years after the event in question.

[00:49:01] Speaker 06:
And then the information is turned over nine months later.

[00:49:06] Speaker 06:
So to say that the evidence was fresh in the witness's mind after three years, but that this nine-month period was the critical memory-losing time is really not a very credible argument.

[00:49:19] Speaker 01:
But that's not the government's judgment to make.

[00:49:22] Speaker 06:
Well, that's true.

[00:49:22] Speaker 06:
I mean, the government should have turned it over.

[00:49:24] Speaker 06:
But I'm saying if we're trying to figure out what the prejudice is, the issue is this witness was available to testify.

[00:49:32] Speaker 06:
And what was important about his memory was what he was going to stay on the stand.

[00:49:37] Speaker 06:
They called him.

[00:49:38] Speaker 06:
They subpoenaed him.

[00:49:39] Speaker 06:
He was offered an opening statement by, I believe, Daya Pasha's attorney.

[00:49:47] Speaker 06:
I'm not sure, actually, one of the Pasha's attorney that he would, that must have been Daya, that he was going to be called.

[00:49:51] Speaker 06:
And then, as Judge Clifford said, they decided not to call him once the court said, I'm not going to keep the government from cross-examining him.

[00:50:03] Speaker 06:
The fact is that he did have a bunch of inconsistent statements, and he wouldn't have been the witness that turned the tide in Brady's evaluation.

[00:50:14] Speaker 06:
The court has to look about whether there's a reasonable probability that the testimony would have affected the outcome.

[00:50:20] Speaker 06:
And we say, in this case, there isn't, not only because of the evidence that was there already, but because he wasn't a credible witness.

[00:50:29] Speaker 06:
They never asked for a continuance if they needed more time.

[00:50:32] Speaker 06:
to look for other witnesses or evidence based on this information.

[00:50:36] Speaker 06:
None of that happened.

[00:50:37] Speaker 06:
They had a month, basically, after they got this information.

[00:50:41] Speaker 01:
And what of the witness's statement that his memory would have been better nine months earlier?

[00:50:47] Speaker 06:
Well, yes, and we believe that if he had testified, that statement could have been impeached as well, given that within the period of about a week, he told at least three different versions.

[00:50:59] Speaker 04:
But that was after the nine months had passed.

[00:51:02] Speaker 04:
That was after the nine, now it's... It could have been that when the government first found out about the witness, the defense could have gotten a lengthy statement from him.

[00:51:14] Speaker 04:
And then the government could have gotten a lengthy statement from him, and both statements would have been consistent and exculpatory.

[00:51:22] Speaker 04:
They wouldn't have been admissible, though.

[00:51:24] Speaker 04:
The prior statements of identification are admissible.

[00:51:28] Speaker 06:
Coming in just for the identification.

[00:51:31] Speaker 04:
Yes.

[00:51:31] Speaker 04:
So just like you said, it corroborated Jerome White that he made a prior out-of-court identification.

[00:51:39] Speaker 04:
He would have been able to be corroborated by his prior out-of-court identification in the sense that he gave a description.

[00:51:48] Speaker 04:
Those descriptions come in all the time, every day.

[00:51:51] Speaker 06:
Well, this wasn't an identification.

[00:51:53] Speaker 06:
It was going to be a statement that it was a man and a woman.

[00:51:56] Speaker 04:
That's not a prior... And that's a description.

[00:51:57] Speaker 04:
That comes in.

[00:51:58] Speaker 04:
There are bank robbery cases and armed robberies, anything.

[00:52:02] Speaker 04:
What did the guy look like?

[00:52:05] Speaker 04:
He had on a mask.

[00:52:06] Speaker 04:
Right.

[00:52:07] Speaker 04:
What did they tell you that day?

[00:52:08] Speaker 04:
Well, he had on a mask.

[00:52:11] Speaker 04:
That comes in every day.

[00:52:12] Speaker 04:
That's a description.

[00:52:15] Speaker 04:
That's substantive evidence.

[00:52:17] Speaker 06:
Well, even if that came in, Your Honor, and I'm not sure whether there would have been a dispute about that, we don't believe that there's a reasonable probability that that would have affected the outcome.

[00:52:29] Speaker 05:
Again, why not?

[00:52:31] Speaker 06:
Why not?

[00:52:32] Speaker 06:
For a variety of reasons.

[00:52:34] Speaker 06:
One is, of course, that he's told four different stories.

[00:52:36] Speaker 06:
So he'd certainly be impeached.

[00:52:38] Speaker 05:
When did he tell four different stories?

[00:52:39] Speaker 05:
He told four different stories nine months later.

[00:52:43] Speaker 06:
Three years and nine months later.

[00:52:45] Speaker 05:
But nine months after, or eight months after, he had taken a stand that was exculpatory.

[00:52:50] Speaker 05:
I don't think that's a strong argument for you.

[00:52:53] Speaker 05:
In my mind, that sort of proves the point of the danger of what's taking place here.

[00:52:59] Speaker 05:
Down the road, afterwards, his memory has faded.

[00:53:02] Speaker 05:
That makes the case for the defendants all the more that perhaps what the government did here was so fundamentally wrong that it's like spoilage of evidence, right?

[00:53:13] Speaker 05:
How can we rely on it?

[00:53:15] Speaker 06:
Well, again, Your Honor, what was going to matter is what he was going to say in court.

[00:53:19] Speaker 06:
And they didn't call him.

[00:53:21] Speaker 06:
He was available.

[00:53:21] Speaker 06:
They didn't call him.

[00:53:23] Speaker 06:
In addition, no other witness, and this is the testimony that the district court relies on, no other witness said that there's a man there.

[00:53:31] Speaker 06:
It was always two women.

[00:53:32] Speaker 04:
But even if his version was two women, his description of the two women

[00:53:41] Speaker 04:
does not inculpate Daya because she didn't match the description of the two women, right?

[00:53:47] Speaker 04:
So if it's a man and a young woman, that's not Daya.

[00:53:50] Speaker 04:
If it's two women who are in their 30s and 40s, that's not Daya.

[00:53:53] Speaker 04:
Well, either way, it's exculpatory as to die, right?

[00:53:57] Speaker 06:
It's exculpatory because he said a man and a woman.

[00:54:01] Speaker 06:
Whether, if he said two women and he gave this description, I'm not sure.

[00:54:05] Speaker 04:
Isn't that what he said?

[00:54:05] Speaker 04:
I mean, it's in the record.

[00:54:07] Speaker 04:
That's what I read the record to be.

[00:54:08] Speaker 04:
Are you telling me that the record, am I right, that the record is wrong?

[00:54:11] Speaker 06:
No, not at all, you're either.

[00:54:12] Speaker 06:
I'm saying that he said,

[00:54:14] Speaker 06:
He said both, his statement in July, the statement that was in July 2011, the one that was three years after the event, that was a man and a woman.

[00:54:27] Speaker 04:
Okay, when he says it's two women, are you saying that that was also inculpatory of Daya or exculpatory?

[00:54:33] Speaker 06:
No, I think it's neutral, really.

[00:54:35] Speaker 06:
It's two women.

[00:54:36] Speaker 04:
And he described an age.

[00:54:38] Speaker 04:
Ms.

[00:54:39] Speaker 04:
Witherspoon,

[00:54:41] Speaker 04:
represented on the record that it was 35 to 45, and then there was some dispute about that, and the prosecutor agreed, yeah, mid-30s and mid-40s.

[00:54:51] Speaker 04:
Right.

[00:54:52] Speaker 04:
Is that what the record says?

[00:54:53] Speaker 06:
Yes, that's what the record says.

[00:54:55] Speaker 04:
And isn't in the record also what Daya's age is?

[00:54:58] Speaker 06:
Yes, although, again, we don't know how she looked or how good this witness was at identifying ages.

[00:55:04] Speaker 01:
What about the jury?

[00:55:06] Speaker 01:
I'm sorry?

[00:55:06] Speaker 01:
For the jury, right?

[00:55:08] Speaker 06:
For the fact finder, yes.

[00:55:09] Speaker 01:
And so what you're saying, we have to find that there is a reasonable probability of a different outcome.

[00:55:17] Speaker 01:
That's correct, Your Honor.

[00:55:21] Speaker 04:
And isn't it also from Kyle's view, Whitley, that the question is not whether the defendant was more likely to not have received a different verdict with the evidence, but whether in its absence he received a fair trial

[00:55:34] Speaker 04:
understood as a trial resulting in a verdict worthy of competence.

[00:55:39] Speaker 06:
Absolutely, Your Honor.

[00:55:41] Speaker 06:
And we believe that we have that here, given all the evidence and the district court's findings here about the evidence that it had to establish that it was these two defendants, Daya Pasha and Amam Pasha, who were the investigators who staged the photo shoot.

[00:55:59] Speaker 04:
If it's a close case, doesn't the government lose the tie because the government was the one to prevent us from figuring out how things would have been done differently because you withheld the evidence for nine months?

[00:56:12] Speaker 06:
Well, I think the question again under Brady is the reasonable probability.

[00:56:17] Speaker 06:
So I don't think it's whether we have the burden, whether we have established that.

[00:56:23] Speaker 06:
And I believe in this case that we have established that, given the fact that no other testimony says that it's a man and a woman, the fact that this was a

[00:56:30] Speaker 06:
a witness who gave many inconsistent statements, and the fact that all the other evidence shows that it was not only two women, but it was also Downe's investigators, and there was no evidence of a male investigator at the time.

[00:56:43] Speaker 01:
Well, you had the, what did you call him, not the intern?

[00:56:46] Speaker 06:
I'm sorry?

[00:56:48] Speaker 01:
There was another person on the case who worked for Mr. Downe, the intern.

[00:56:54] Speaker 06:
Oh, the paralegal.

[00:56:57] Speaker 06:
But there was no evidence that he was involved in.

[00:56:59] Speaker 06:
He said he went to the photo shoot.

[00:57:01] Speaker 06:
He saw the photo.

[00:57:02] Speaker 04:
Well, that was evidence that he went to the photo shoot.

[00:57:05] Speaker 06:
That he saw the photos afterwards?

[00:57:07] Speaker 06:
No.

[00:57:08] Speaker 04:
Couldn't Diopasha's lawyer have put that evidence in and then argued that, well, maybe there was a photo shoot, but it was a man and a woman.

[00:57:19] Speaker 04:
And the man was this guy.

[00:57:20] Speaker 04:
And we know that this guy worked on the case.

[00:57:22] Speaker 04:
We know that this guy worked for Dom.

[00:57:24] Speaker 04:
That's reasonable doubt.

[00:57:26] Speaker 06:
Well, they could have, but they didn't.

[00:57:27] Speaker 06:
He was their witness, and there was no testimony to that effect.

[00:57:33] Speaker 04:
But I mean, you're arguing that basically there was nothing that could have done with that evidence, and there's clearly something that could have been done with it.

[00:57:45] Speaker 06:
There could have been, and they certainly, the defendants could have asked for a continuance if they thought they needed to go explore it.

[00:57:51] Speaker 06:
But as to this paralegal, they obviously had found him because they'd called him as a witness.

[00:57:57] Speaker 06:
So that evidence could have come out, did come out the way it did.

[00:58:04] Speaker 06:
My time is up.

[00:58:05] Speaker 01:
Anything further?

[00:58:09] Speaker 06:
Well, Your Honor, I don't want to address issues that haven't been addressed.

[00:58:13] Speaker 01:
All right, that's fine.

[00:58:14] Speaker 01:
I mean, the other two issues are plain error issues that have been argued in the brief.

[00:58:20] Speaker 01:
Is there anything you want to supplement?

[00:58:21] Speaker 06:
Well, just that there was no error at all.

[00:58:24] Speaker 01:
Well, that's in your brief.

[00:58:25] Speaker 06:
Yes, it will rely on it.

[00:58:27] Speaker 04:
Let me ask you one more question about the Brady issue.

[00:58:32] Speaker 04:
The record is a little clear, but I think the record shows that the government waits eight months, nine months, whatever it is, to disclose this witness to the defense.

[00:58:48] Speaker 04:
The defense, the government offers to help make him available for an interview.

[00:58:55] Speaker 04:
The defense says, no, we don't want you doing anything.

[00:58:57] Speaker 06:
That's correct, Your Honor.

[00:58:58] Speaker 04:
We'll find him.

[00:58:59] Speaker 04:
We'll talk to him.

[00:59:01] Speaker 06:
That's correct.

[00:59:04] Speaker 04:
It appears that the government went back and talked to the witness again before the defense got to them.

[00:59:12] Speaker 04:
Is that what happened?

[00:59:13] Speaker 06:
That's not my recollection of the timetable.

[00:59:16] Speaker 06:
My recollection is that on April 5th, the month before trial in 2012, the information was disclosed.

[00:59:25] Speaker 06:
On April 10th, some member of the defense team interviewed the witness for the first time.

[00:59:33] Speaker 06:
On April 11th, the government interviewed him and talked about

[00:59:40] Speaker 06:
what the witness had seen.

[00:59:41] Speaker 06:
And then the defense interviewed him two times thereafter, and the government interviewed him one time thereafter.

[00:59:48] Speaker 06:
So I believe the defense interviewed him after the information was disclosed.

[00:59:53] Speaker 06:
It was the defense that interviewed him first.

[00:59:58] Speaker 01:
All right.

[00:59:58] Speaker 01:
Thank you.

[00:59:58] Speaker 06:
Thank you.

[01:00:01] Speaker 01:
All right.

[01:00:02] Speaker 01:
Counsel for Pellant Dome.

[01:00:06] Speaker 07:
Thank you, Your Honors.

[01:00:07] Speaker 07:
I just have a couple of brief points I'd like to address.

[01:00:09] Speaker 07:
And the first is that to address Judge Rodgers' question about whether we raise the obstruction of justice and subordination of perjury before the district court.

[01:00:18] Speaker 01:
I saw your footnotes, but that's all you argued.

[01:00:23] Speaker 01:
I'm sorry, what?

[01:00:24] Speaker 01:
I saw the footnotes in your brief that by pleading not guilty,

[01:00:29] Speaker 01:
And that's the way you preserve the error.

[01:00:32] Speaker 07:
Your Honor, it's also true that the first time we had notice of the district court's application of law in this case was in the verdict.

[01:00:40] Speaker 07:
So this is really our first meaningful opportunity to get review of that.

[01:00:43] Speaker 07:
And we think because of that.

[01:00:44] Speaker 01:
You couldn't file a motion in the district court?

[01:00:47] Speaker 07:
Under Rule 51B, I don't think that's required, Your Honor.

[01:00:50] Speaker 07:
I've seen no case.

[01:00:50] Speaker 01:
I didn't say required.

[01:00:51] Speaker 01:
You said this was the only opportunity.

[01:00:54] Speaker 01:
And I asked you whether you could have filed

[01:00:57] Speaker 01:
a motion in the district court, that's all.

[01:01:00] Speaker 07:
We haven't, no, Your Honor.

[01:01:01] Speaker 01:
Yes.

[01:01:02] Speaker 01:
It's not your only opportunity.

[01:01:03] Speaker 07:
But these are questions of pure law.

[01:01:07] Speaker 07:
There are statutory interpretation issues that are properly before this court in the de novo review.

[01:01:11] Speaker 07:
Rule 51B states that if there's no opportunity to object below,

[01:01:17] Speaker 07:
There's no prejudice to the standard of review.

[01:01:19] Speaker 07:
That's been interpreted in Puckett in the Supreme Court as a contemporaneous objection rule.

[01:01:25] Speaker 07:
And there's certainly no law in this circuit stating that after a criminal bench trial, a defendant needs to file a post-trial pleading to preserve review of the legal issues in that case.

[01:01:37] Speaker 07:
And I wanted to just say briefly, with respect to the obstruction of justice argument, at least four circuit courts have held that for a defendant to act corruptly, his actions must be prompted by a corrupt motive.

[01:01:48] Speaker 07:
So even if you apply a plain error review for this, there's an absolutely clear legal norm that every word in a statute has to be given meaning.

[01:01:56] Speaker 07:
And the only courts that have done that, that have given some meaning to the word corruptly,

[01:02:00] Speaker 07:
have held that it requires an inquiry into the defendant's motive.

[01:02:04] Speaker 07:
Same thing with subordination of perjury.

[01:02:06] Speaker 07:
Willfully at its core requires an action taken of one's own free will.

[01:02:11] Speaker 07:
The district court here gave no meaning to the word willfully.

[01:02:14] Speaker 07:
It made no findings on Mr. Dom's willfulness, and at minimum it should be remanded on that issue.

[01:02:19] Speaker 07:
And the final point I want to make is a back to the jury waiver issue.

[01:02:23] Speaker 07:
Now, this court has said that there were no red flags before the district court.

[01:02:28] Speaker 07:
But there were no red flags because the questions weren't asked.

[01:02:31] Speaker 07:
A simple question about, are you taking any medication today, would have resulted in that red flag that this court is looking for.

[01:02:37] Speaker 07:
I think the value of finality shouldn't be placed above the value of upholding constitutional rights.

[01:02:43] Speaker 01:
So you're back to, it's a sous-fondé obligation on the district court to make the inquiry.

[01:02:47] Speaker 07:
It's undeniably the responsibility of the district court to evaluate whether a defendant can competently make the decision to waive his jury trial.

[01:02:56] Speaker 07:
Yes, Your Honor.

[01:02:56] Speaker 01:
All right.

[01:02:57] Speaker 01:
Thank you.

[01:02:57] Speaker 07:
Thank you.

[01:02:59] Speaker 01:
All right.

[01:02:59] Speaker 01:
Counsel for Appellant Daya Pasha, give you a minute if you want it.

[01:03:11] Speaker 03:
Thank you, Your Honor.

[01:03:11] Speaker 03:
I'd just like to make two points.

[01:03:13] Speaker 03:
One is that what the exchange showed to me was that the sufficiency and the Brady issues come together, because the government's argument is you should ignore the Brady violation because there was overwhelming evidence on the record about the AAPASHA.

[01:03:24] Speaker 03:
And I submit that if you look at the evidence with respect to the evidence against her specifically, there is not overwhelming evidence.

[01:03:31] Speaker 03:
There was hardly any evidence that goes to the AAPASHA specifically.

[01:03:33] Speaker 03:
The government says, well, there's vague mentions of investigators.

[01:03:37] Speaker 03:
There are other individuals involved in this case, including other investigators.

[01:03:40] Speaker 03:
There's a woman who gets a lot of play in the government's brief, a woman by the name of Tiffany Archer.

[01:03:45] Speaker 03:
The government discusses at pages 13 and 15 of its brief who was involved in the Delante White case and participated in a number of activities in the case.

[01:03:53] Speaker 03:
So there are other investigators, Mr. Dom had.

[01:03:55] Speaker 03:
Judge Wilkins, to respond to your point, yes.

[01:03:58] Speaker 03:
The same day that the judge, the district court below, found the Brady violation, but withheld ruling on the verdict.

[01:04:04] Speaker 03:
Later that day, government investigators went and interviewed, or attempted to interview Mr. Montgomery.

[01:04:10] Speaker 03:
That's a JA 846.

[01:04:11] Speaker 03:
The only points I had, Your Honor.

[01:04:13] Speaker 01:
Thank you.

[01:04:15] Speaker 01:
All right, counsel for Anand Pasha.

[01:04:18] Speaker 01:
A minute if you want it.

[01:04:26] Speaker 02:
Thank you, Your Honor.

[01:04:26] Speaker 02:
Just two quick points.

[01:04:27] Speaker 02:
One again on the timeline on the Brady issue.

[01:04:31] Speaker 02:
As counsel for the government indicated, the government seconded that interrogation of Mr. Montgomery occurred the day after

[01:04:39] Speaker 02:
the defense interview, but that was after the defense explicitly asked for no more help in finding him.

[01:04:45] Speaker 02:
That's the first time the inconsistency occurs.

[01:04:47] Speaker 02:
We would submit when this court thinks about reasonable probability.

[01:04:50] Speaker 04:
Can you say that again so I'm clear what your position is?

[01:04:53] Speaker 02:
Certainly.

[01:04:55] Speaker 02:
The statement is disclosed to the defense on April 5th.

[01:04:59] Speaker 02:
The defense on that day asked for no help in finding Mr. Montgomery.

[01:05:03] Speaker 02:
The government had provided an out-of-date address for him.

[01:05:06] Speaker 02:
The defense located Mr. Montgomery on April 10th.

[01:05:09] Speaker 02:
The government had continued its own efforts to locate him, located him on April 11th the next day.

[01:05:15] Speaker 02:
And that's the first time that an inconsistent statement occurs.

[01:05:18] Speaker 02:
So Mr. Montgomery was consistent for nine months.

[01:05:21] Speaker 02:
from his first interview with the government to his first interview with the defense, and then when he's approached by the government as the first time, he wavers.

[01:05:28] Speaker 02:
We would submit when this court's looking at reasonable probability of whether the statement would have made a difference, the right statement to look at is that statement nine months earlier.

[01:05:36] Speaker 02:
The inconsistent, we would submit, occurs partially because of the delay and it's something that's impossible to sort out the cause and effect once that delay has occurred.

[01:05:47] Speaker 01:
Thank you.

[01:05:48] Speaker 01:
We'll take the case under advisement.