[00:00:01] Speaker 03:
Case number 13-3031, United States of America versus Eddie P. Burroughs, appellant.

[00:00:07] Speaker 03:
Miss Rowland for the appellant.

[00:00:08] Speaker 03:
Miss Bates for the appellee.

[00:00:15] Speaker 05:
Good morning.

[00:00:15] Speaker 04:
Good morning.

[00:00:16] Speaker 04:
May it be the court.

[00:00:18] Speaker 04:
I'm Sandra Rowland on behalf of Mr. Burroughs.

[00:00:22] Speaker 04:
The seizure of Mr. Burroughs was presumptively illegal, and the government did not overcome that presumption at the hearing.

[00:00:29] Speaker 04:
Probable cause existed for the arrest that Officer 750 made with the help of Officer Haskell in the helicopter, but there was no information about the arrest of the second adult.

[00:00:43] Speaker 04:
If Mr. Burroughs was arrested by Officer 750, then there was probable cause for his arrest.

[00:00:49] Speaker 04:
But if he was not arrested by 750, then there was not probable cause for his arrest.

[00:00:54] Speaker 04:
At the time of the events, Officer 750 said that the arrest took place in front of 3425 6th Street.

[00:01:01] Speaker 05:
I understand why you're starting with Officer 750.

[00:01:06] Speaker 05:
Tell me about Mr. Haskell and Mr. Wade and what they had to say.

[00:01:11] Speaker 04:
Mr. Officer Haskell's testimony directly contradicted Officer 750's testimony.

[00:01:20] Speaker 05:
He testified that the arrest that he and Officer 750 made... Was that the district court's conclusion, that it directly contradicted?

[00:01:28] Speaker 05:
I thought the district court found that they could be compatible.

[00:01:32] Speaker 04:
uh... the district court found that he could not square the discrepancies uh... but offered two theories so what are we supposed to do in a case like that what's what's our standard of review for something like this you're reviewing for clear air the problem here well and and reviewing denovo on the law and part of the problem here is that uh... the court

[00:02:00] Speaker 04:
used a standard that is significantly less than it should be, which is that he found that Officer 750 must have been mistaken, someone had to be mistaken, either Haskell or 750, and it must have been 750,

[00:02:19] Speaker 04:
He gave two theories as to why, and said that maybe they're right and maybe they're not.

[00:02:25] Speaker 05:
Didn't Officer Haskell say something substantially similar to this, if not this?

[00:02:31] Speaker 05:
I was watching him the whole time.

[00:02:34] Speaker 05:
I watched the suspects when they got out of the charger.

[00:02:37] Speaker 05:
I watched the suspect when he walked into the parking lot.

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I watched the suspect walk nonchalantly into the parking lot.

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I said,

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get him.

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They got him.

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I saw them arrest him.

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And then Officer Wade came along and said, that's Burroughs.

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Now, that's pretty strong, isn't it?

[00:02:58] Speaker 05:
Have I misstated it somehow?

[00:02:59] Speaker 04:
Yes.

[00:02:59] Speaker 04:
Well, no, no, you're not misstating something.

[00:03:01] Speaker 04:
You're missing something.

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And the piece you're missing is that there's a dispute

[00:03:08] Speaker 04:
All of that is true and undisputed, except that there's a dispute about where that arrest took place.

[00:03:16] Speaker 04:
Officer Haskell says, yes, I was working with Officer 750, and it happened in the parking lot at 3600.

[00:03:25] Speaker 04:
And the contemporaneous report from 750 is, yes, we worked together to make this arrest, and it was in the parking lot at 3425.

[00:03:37] Speaker 02:
I think what the district court said was, look, the transcript's a bit confusing.

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It's hard to tell if two or three things are going on at the same time, people talking over each other.

[00:03:45] Speaker 02:
But then he said, but what is clear to me and what's powerful in convincing testimony was in the testimony of Officer Haskell about watching this guy from beginning to end.

[00:03:59] Speaker 02:
How is that clear error?

[00:04:02] Speaker 04:
That is clear error because in the section where Officer Haskell and Officer 750 are facilitating that arrest, people are not talking over each other.

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There are no gaps whatsoever.

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That is a very clear statement.

[00:04:22] Speaker 02:
How do we know nobody's talking over each other?

[00:04:25] Speaker 02:
How do you know that?

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Because if you talk over someone, it silences someone else.

[00:04:28] Speaker 02:
So how do we know somebody wasn't silenced?

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There weren't three of us going on at the same time.

[00:04:34] Speaker 04:
Well, there are no words whatsoever between Officer Haskell saying, stop that guy, and Officer 750 saying, I've got that guy.

[00:04:46] Speaker 01:
Do we know?

[00:04:47] Speaker 01:
I'm just curious about what Judge Mollet just said.

[00:04:51] Speaker 01:
I know on my cell phone if I interrupt someone then only one of us voices is heard and the other one is blocked out.

[00:04:58] Speaker 01:
Is this radio open so that people can actually speak over one another or does it block out when two people speak at the same time from different points?

[00:05:12] Speaker 01:
Do you know the radio run?

[00:05:14] Speaker 04:
I don't know.

[00:05:17] Speaker 01:
Maybe we can ask the government about it now.

[00:05:19] Speaker 04:
Well, Officer Haskell did testify that he put out four, broadcast four descriptions, but there's only three on the radio run.

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And he did testify that maybe someone stepped on his

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description, his fourth description, you know.

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I think meaning that if... It got blocked out, maybe.

[00:05:44] Speaker 04:
Yes.

[00:05:45] Speaker 01:
So your theory is that to the extent that there's clarity when you're agreeing with Judge Griffith's description of what the testimony showed, you're saying, yes, that's all right, but that's with respect to Hartsfield and not with respect to Burroughs.

[00:05:59] Speaker 01:
And what about, I mean, that's not exactly what I think the district judge held.

[00:06:06] Speaker 01:
He held

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that Haskell and Falcon was watching the person who ends up being arrested and walking nonchalantly in the parking lot.

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Do we have to, in order to find for your client, hold that Haskell was, that the district judge was clearly erroneous to the extent that he found that Haskell was watching Burroughs the whole time?

[00:06:37] Speaker 04:
No, you don't.

[00:06:39] Speaker 04:
The problem in the case is that there was no rational basis to find who was confused and who was correct, because the government failed to call Officer 750 or the arrest of other officers.

[00:06:54] Speaker 02:
Could you have called Officer 750?

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Could you have issued a subpoena for Officer 750?

[00:06:58] Speaker 04:
Yes, but we have no need to prove anything.

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When there is a presumptively illegal arrest, it is up to

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the government to prove that there was probable cause.

[00:07:08] Speaker 02:
Right, and they came forward with theirs, and then your argument is, hey, you know, there was confusion about Officer 70, so if you wanted to stir things up to sort of get away from that powerful Haskell testimony and say there's real confusion here, maybe the baton passed to you at that point to try to undo the showing that they had made.

[00:07:28] Speaker 04:
Well, we didn't need to stir things up because the district court found that it could not reconcile.

[00:07:34] Speaker 02:
No, see, that's what you did in the brief.

[00:07:36] Speaker 02:
As you said, look, the transcript of these conversations, it's unclear what was going on, whether there was confusion, whether people were talking over.

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But what is crystal clear to me and persuasive and compelling is Haskell's testimony.

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And so he didn't say at the end of the day, I can't resolve this.

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I can't square the circle.

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I'm making my best guess.

[00:07:59] Speaker 02:
He said as to that aspect of the evidence, it's confusing.

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But what's not confusing, what's clear, and what is persuasive is Mr. Haskell.

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And so with that testimony, then maybe

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The burden would have shifted to you all if you wanted to unravel the power of that testimony.

[00:08:17] Speaker 04:
There was absolutely no confusion or talking over each other when Officer 750 said, I've got him.

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I'm at 3425, and Haskell is in the Falcon is above me.

[00:08:32] Speaker 04:
There was no confusion about that.

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And the court didn't find anything confusing about that.

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And that was what the court referred to when it kept saying,

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You know this circle can't be squared or you know there are clear discrepancies and and then the court found that the confusion was on the part of 750 either because 750 was wrong about the address for which there's no Rational basis and really is not even sensible or

[00:09:04] Speaker 04:
there were two arrests happening at the same time, and Falcon was above each of them in different places, which also is not rational and doesn't make any sense.

[00:09:15] Speaker 04:
There's absolutely no reason.

[00:09:17] Speaker 01:
I thought the second hypothesis for reading of the evidence was that Officer 750 arrested

[00:09:28] Speaker 01:
Hartsfield independently and coincidentally without Falcon's help and that perhaps Falcon unknowingly was over Burroughs and aiding, was it Officer William Williams?

[00:09:45] Speaker 04:
Yes, that is a second theory except that Officer 750

[00:09:51] Speaker 04:
is arresting at thirty four twenty five with falcon shining the light above him how do we know that because he says that which is a helicopter is above me he says falcon is above me it doesn't say the light is on this guy well if you look at the uh... transcripts at uh... okay citation uh... it's clear that falcon is using his spotlight as a column of light so he says

[00:10:18] Speaker 04:
When they're trying to capture the juvenile, he says to them, come to my light.

[00:10:29] Speaker 04:
See where my light is?

[00:10:30] Speaker 04:
Come to my light.

[00:10:32] Speaker 04:
These are not running lights that are just spread over the whole area.

[00:10:35] Speaker 04:
This is a spotlight on one person.

[00:10:37] Speaker 04:
He spotlights

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someone that officer 750 arrests.

[00:10:42] Speaker 04:
He spotlights the juvenile and keeps saying.

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And yet Haskell, when given an opportunity to explain this, goes to the map and draws an X on the parking lot.

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That's where he, that's the arrest that he was talking about and that's Burroughs.

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And officer 750

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When he was making a most critical announcement, the announcement being, I've arrested somebody.

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Other officers need to come assist.

[00:11:12] Speaker 04:
My location is 3425.

[00:11:14] Speaker 04:
We don't hear later officers.

[00:11:16] Speaker 05:
So you just have to disbelieve Haskell, right?

[00:11:18] Speaker 05:
Your version of events, you just can't believe Haskell.

[00:11:23] Speaker 04:
No.

[00:11:24] Speaker 04:
Our argument in our version of events is the government failed to explain this discrepancy.

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And it was their burden to do so.

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that radio is crystal clear about this arrest.

[00:11:41] Speaker 01:
You're saying about the Hartsfield arrest.

[00:11:44] Speaker 01:
In other words, your view is

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Falcon was helping with Hartsfield.

[00:11:49] Speaker 01:
That was at 3425.

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The light was on him.

[00:11:53] Speaker 01:
And that's what Haskell thinks.

[00:11:55] Speaker 01:
There was communication that closed the link, get him, I got him, and that he, I mean, that's why I was asking whether you have to find that the district court is clearly erroneous with respect to saying that Haskell was also, while he was facilitating this arrest with his spotlight over

[00:12:13] Speaker 01:
Hartsfield also watching Burroughs the whole time.

[00:12:18] Speaker 01:
I mean, I sort of thought that was your theory, but you're saying no.

[00:12:22] Speaker 01:
In other words, the district court, in the face of testimony that, as you described it, seems to clearly indicate Falcon facilitating arrest of juvenile and arrest of Hartsfield, and being quite focused on Hartsfield, and getting vocal communication back from Hartsfield, using light over Hartsfield, and that meanwhile, Burroughs is running off south toward the parking lot,

[00:12:48] Speaker 01:
And somehow the district court finds, in the face of Falcon being busy over here, that Falcon was watching and tracing Burroughs.

[00:12:56] Speaker 01:
I thought that was your theory, and that therefore, to the extent that the district court sort of puts this all in the hopper and comes out and says, well, Burroughs bailed from this car.

[00:13:07] Speaker 01:
We know the car was stolen.

[00:13:09] Speaker 01:
I watched, Hartsfield watched, I'm sorry, Haskell watched Burroughs the whole time.

[00:13:15] Speaker 01:
burrows was arrested and was wearing the clothes.

[00:13:19] Speaker 01:
There's not evidence to support that.

[00:13:20] Speaker 01:
I thought that was your theory, but no.

[00:13:23] Speaker 04:
No, not exactly.

[00:13:24] Speaker 04:
I think what the court was saying was it might be that two arrests were happening at the same time.

[00:13:33] Speaker 04:
Officer 750 was at 3425 making an arrest, presumably for Cody Hartsfield.

[00:13:42] Speaker 04:
And Haskell was with some other officer in the lower parking lot arresting Mr. Burroughs.

[00:13:49] Speaker 04:
And they have, maybe, I mean, and the court says this might or might not be true.

[00:13:57] Speaker 04:
So maybe those happened in the exact same second.

[00:14:03] Speaker 04:
But

[00:14:05] Speaker 04:
That doesn't work, because Haskell is supposed to be shining his light.

[00:14:09] Speaker 04:
He's supposed to be directly facilitating by shining his light on the suspect.

[00:14:14] Speaker 04:
And we know he was shining his light on 750's suspect, because 750 says so.

[00:14:20] Speaker 02:
Could he shine his light on Burroughs and still be, given the nature of helicopters, somewhat over the Hartsfield arrest?

[00:14:29] Speaker 02:
They weren't that far apart, and a helicopter over you can mean a lot.

[00:14:32] Speaker 04:
When you look at the distances,

[00:14:35] Speaker 04:
uh... between the upper parking lot and the lower parking lot and when you look at his testimony about his light that he shines his light directly on the spot.

[00:14:46] Speaker 02:
No, I've got his lights directly on boroughs and his helicopters over all of them.

[00:14:50] Speaker 02:
They're all in this complex area, different streets, but it seems to be perfectly reconcilable.

[00:14:55] Speaker 04:
I think it would be pretty absurd for a police officer who's trying to alert other officers that he's got a suspect and where he is to just comment that

[00:15:05] Speaker 04:
Falcon is here.

[00:15:06] Speaker 04:
Falcon above me makes no sense, really, for a police officer to say, unless he means, I am under the light that Falcon just talked about.

[00:15:18] Speaker 04:
I am the person making this arrest, and this is where we are.

[00:15:21] Speaker 01:
And are you also relying on, I mean, one thing that seems additionally in the mix is that Haskell in the helicopter says, get him.

[00:15:33] Speaker 01:
And in response, 750 says, I got him.

[00:15:38] Speaker 01:
And you don't, so if, as I gather, the government is arguing, Haskell is over, is in fact at that time over Burroughs, and Haskell is saying, you know, get him, you hear nothing from anyone on the ground saying, I got him.

[00:15:59] Speaker 01:
So it's curious that although that seems to be the practice, that's what they did with the juvenile, get him, I got him, and there's a get him and an I got him, that neither does Haskell seem to say get him to the officer arresting burrows, nor does the officer arresting burrows respond, whereas both of those things seem to be happening.

[00:16:20] Speaker 04:
And in Officer Haskell's testimony, he said,

[00:16:26] Speaker 04:
that he was working with Officer 750.

[00:16:29] Speaker 04:
He says that I said these words, and in response to my words, Officer 750 said these words back.

[00:16:44] Speaker 04:
So he does not disown working with Officer 750.

[00:16:49] Speaker 04:
He claims it.

[00:16:52] Speaker 05:
Your time is up.

[00:16:54] Speaker 05:
We'll give you time back.

[00:16:55] Speaker 05:
But let's hear from the government now.

[00:16:56] Speaker 05:
Thank you.

[00:17:03] Speaker 03:
May it please the court.

[00:17:03] Speaker 03:
Lauren Bates on behalf of Appellate United States.

[00:17:07] Speaker 03:
Officer Haskell testified that he saw the four individuals bail out of the white Dodge Charger and that he never lost sight of the individual who ended up in that lower parking lot.

[00:17:17] Speaker 02:
What do you do with that collateral estoppel argument?

[00:17:21] Speaker 03:
Here, collateral estoppel would not apply here because the ruling that appellant is citing was a ruling in a preliminary hearing.

[00:17:32] Speaker 03:
So it is not a... Did it result in dismissal?

[00:17:35] Speaker 02:
What happened after the Superior Court said no probable cause?

[00:17:38] Speaker 02:
What happened?

[00:17:39] Speaker 03:
So at that instance, the case against

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of appellant boroughs in the DC Superior Court would have, I mean, there was no probable cause found, so there would be no case, but the government- Was, so what was?

[00:17:55] Speaker 02:
What happened when there's no probable, when a finding of no probable cause was entered, what happens to the case?

[00:18:02] Speaker 03:
At that point, it's gone.

[00:18:04] Speaker 03:
At that point, the case is concluded.

[00:18:07] Speaker 02:
It's not preliminary.

[00:18:09] Speaker 02:
It's conclusive as to that moment in time.

[00:18:11] Speaker 03:
Well, it is not a final judgment.

[00:18:12] Speaker 03:
The government is still free at that time, and often does in many cases, to seek an indictment and have a grand jury return an indictment on a basis of probable cause.

[00:18:23] Speaker 02:
Did you do that here?

[00:18:24] Speaker 03:
In this case, the government did not.

[00:18:27] Speaker 03:
But I do not think that the fact that the government chose not to pursue the case in Superior Court affects the collateral estoppel analysis.

[00:18:37] Speaker 03:
There may be a good explanation, given that there was a separate case then proceeding.

[00:18:41] Speaker 02:
Well, what about, I mean, so one judge says no probable cause.

[00:18:45] Speaker 02:
I assume you would agree you can't march him down the hall to the next judge and say, we'd like to have a probable cause hearing.

[00:18:54] Speaker 02:
no it's it's so it's quite a list apple of that sense right well that would be why can't you any at that moment there would be other concerns and what but what i think the government could i'm not sure that the rules permit for a i'm just trying to change your theory here is to if it's not five point and count for anything like a marching down the hall to another judge

[00:19:16] Speaker 03:
There's a possibility, I think, that under changed circumstances, that if the government did seek, for example, an indictment from the grand jury, the court would accept that hearing.

[00:19:26] Speaker 02:
This isn't a grand jury case, so let's just put that aside.

[00:19:28] Speaker 02:
So if you're not doing that, so you don't have the intervention of a grand jury decision maker, what's to stop you from just having gone down the hall and gotten a different judge?

[00:19:40] Speaker 03:
I mean, absent a question of whether it was a magistrate judge ruling on that.

[00:19:43] Speaker 03:
I don't know that the government could, but that would be in that same case, there may be different procedural rules and law of the case issues that would probably the government's from.

[00:19:53] Speaker 02:
Law of the case, it's not final.

[00:19:54] Speaker 02:
It's preliminary.

[00:19:55] Speaker 02:
Law of the case doesn't apply.

[00:19:57] Speaker 02:
If it's preliminary, a judge can revisit.

[00:19:59] Speaker 03:
Well, the government, I think, could ask for reconsideration.

[00:20:02] Speaker 02:
I think that- No, no, I'm talking about going down to another judge.

[00:20:05] Speaker 03:
I don't know that there's a mechanism by which the court government could seek to transfer a case to a different judge and essentially engage in.

[00:20:14] Speaker 01:
What was different, if anything, between the presentation to the judge in spirit court and the presentation to the judge here?

[00:20:20] Speaker 01:
I thought you had additional evidence when you came before the judge in the federal court.

[00:20:26] Speaker 03:
There were entirely different witnesses.

[00:20:28] Speaker 03:
The witness who testified at the preliminary hearing in Superior Court acknowledged during the testimony that that witness did not have significant information about the circumstances of boroughs.

[00:20:40] Speaker 02:
That's a problem.

[00:20:41] Speaker 02:
You chose.

[00:20:42] Speaker 02:
a really lousy witness who didn't have any relevant knowledge of anything.

[00:20:47] Speaker 02:
And then someone says, no.

[00:20:49] Speaker 02:
And then you didn't have new facts.

[00:20:51] Speaker 02:
You just grabbed some better witnesses for the next hearing.

[00:20:56] Speaker 02:
Isn't that what happened?

[00:20:56] Speaker 02:
It wasn't that you went out and investigated and got new information, which can happen with the government.

[00:21:02] Speaker 02:
But in fact, you had the exact same story on day one in Superior Court and, say, day two, I know there's some other time, but day two in District Court.

[00:21:12] Speaker 02:
And you just thought, OK, let's try some different witnesses.

[00:21:15] Speaker 02:
Is that OK?

[00:21:17] Speaker 03:
So this was not a situation where this was the same kind of hearing being relitigated in front of a different judge.

[00:21:23] Speaker 02:
The same legal issue was being relitigated, and you just thought to bring the exact same legal issue, probable cause, correct?

[00:21:30] Speaker 03:
It involved the same, I mean, it's a different legal issue.

[00:21:33] Speaker 03:
This was probable cause for the purposes of a suppression hearing, but yes, it tied together.

[00:21:38] Speaker 02:
But you're not going to have probable cause for a suppression hearing unless there's probable cause for the rest.

[00:21:41] Speaker 02:
You were deciding probable cause for the rest in both cases, correct?

[00:21:44] Speaker 02:
Correct.

[00:21:44] Speaker 02:
Probable cause for the rest, exact same issue.

[00:21:47] Speaker 02:
You brought a lousy witness the first time.

[00:21:49] Speaker 02:
And then you said, well, that didn't go so well.

[00:21:52] Speaker 02:
Let's grab another, let's grab a better set of witnesses.

[00:21:55] Speaker 02:
And I think, right, that's the only, it wasn't that you went out and discovered new information and did new investigation.

[00:22:01] Speaker 02:
You just grabbed new, better witnesses.

[00:22:03] Speaker 03:
No, I think that the government attempted to be prepared for the suppression hearing that was being held.

[00:22:09] Speaker 02:
You didn't choose to be prepared for the probable cause hearing, Ms.

[00:22:11] Speaker 02:
Perry-Courtney.

[00:22:11] Speaker 03:
I don't have

[00:22:12] Speaker 03:
The information to speak to, I think, obviously, the government would always try to be prepared for whatever hearing they were facing.

[00:22:20] Speaker 05:
I'm surprised by your initial answer to Judge Millett's line of questions.

[00:22:25] Speaker 05:
I would have thought that you would have responded with a waiver argument.

[00:22:28] Speaker 05:
Was this raised below?

[00:22:30] Speaker 03:
No, it was not.

[00:22:32] Speaker 03:
And that is an argument that we've made in our briefs that appellate.

[00:22:35] Speaker 05:
Well, it's still subject to plain error.

[00:22:37] Speaker 05:
Why didn't you make the argument here?

[00:22:39] Speaker 05:
Isn't that your strongest argument that you don't have to?

[00:22:42] Speaker 05:
Because it is very difficult, as Judge Millett's line of questions has amply demonstrated, it's a very difficult question whether there's a preclusive effect for no finding of probable cause.

[00:22:53] Speaker 05:
That's a difficult issue.

[00:22:55] Speaker 05:
Is waiver a difficult issue here?

[00:22:56] Speaker 03:
Not on this record, no.

[00:22:58] Speaker 01:
What about the fact that it was mentioned in the trial court?

[00:23:01] Speaker 01:
I think that the counsel for the defendant said there was a finding of no probable cause in the Superior Court and we're challenging probable cause here.

[00:23:10] Speaker 01:
I'm not sure that it has to be, you know, chapter and verse briefed in order to be preserved.

[00:23:16] Speaker 03:
There is no request made of the district court judge to make a legal ruling that the government was precluded from litigating the merits of the suppression hearing in district court because of the proceedings that occurred in superior court.

[00:23:32] Speaker 01:
But it was mentioned that the superior court had made a contrary, had made a no probable cause determination, and the defense clearly said, and the same result applies here at home.

[00:23:44] Speaker 03:
I think they argued that the district court judge should, after hearing the evidence, reach the same conclusion.

[00:23:51] Speaker 03:
I don't read the record as an argument to the district court judge that, based on that fact alone, based on the fact that there was a proceeding in Superior Court,

[00:24:01] Speaker 03:
that the district court judge did not need to entertain or should not entertain the merits of the suppression hearing and should rule on the basis the words collateral estoppel were never, you know, uttered and no request was made of the judge to... Do you know why Damian Williams and Officer Olivet or Oliveira were not called in the federal district court suppression hearing?

[00:24:25] Speaker 03:
I don't know why they were not.

[00:24:28] Speaker 03:
I can tell you that the government believed, and as it would in any case, that the evidence that they had presented at the suppression hearing was sufficient to meet the government's burden, which is to establish probable cause for the arrest.

[00:24:44] Speaker 03:
And in fact, the district court judge, upon hearing that evidence and clearly and carefully evaluating it,

[00:24:50] Speaker 03:
came to the same conclusion.

[00:24:52] Speaker 01:
Really expressing some frustration.

[00:24:54] Speaker 01:
I mean, I have to say when we're asked as judges to, you know, hold that there is probable cause and we're not given what looks like the best evidence, it's, you know, you're asking us to do something with, maybe without adequate assistance.

[00:25:11] Speaker 01:
It's a little, and we don't have the ability to call witnesses and, you know, the district court judge

[00:25:20] Speaker 01:
with the adequacy of the evidence in this case, and said it doesn't all add up, there's no way to make it all add up.

[00:25:27] Speaker 01:
And I just can't help but think that if the government had brought witnesses with personal knowledge of the events, that that would not have been the case.

[00:25:36] Speaker 03:
I mean, it may have assisted the district court.

[00:25:39] Speaker 03:
I do, I think, take issue with the characterization of what the district court expresses as expressing a lot of frustration.

[00:25:46] Speaker 03:
I think Judge Boasberg fairly recognized that there was some inconsistencies or discrepancies that he did not view as being, you know, could be explained.

[00:25:59] Speaker 03:
I think what he concluded ultimately was that it was clear to him.

[00:26:02] Speaker 02:
All of which the government could have easily eliminated by calling the guy who arrested, the officer who arrested Burroughs.

[00:26:10] Speaker 03:
I mean, it's possible that additional evidence could have explained.

[00:26:14] Speaker 02:
Possible.

[00:26:14] Speaker 02:
That would have been exactly.

[00:26:16] Speaker 02:
He would have said, yeah, we were right under the spotlight.

[00:26:18] Speaker 02:
Sure, well, the helicopter was, you know, the helicopters aren't static.

[00:26:20] Speaker 02:
They're moving around.

[00:26:21] Speaker 02:
So it could be over him and shooting the spotlight here.

[00:26:23] Speaker 02:
That's how it works.

[00:26:23] Speaker 02:
That's an angle.

[00:26:24] Speaker 02:
It's a very easy explanation.

[00:26:26] Speaker 03:
It's possible, but I think the fact that that explanation was not present.

[00:26:29] Speaker 03:
The district court was aware of these inconsistencies, and what this court has to review on appeal is whether, knowing that that discrepancy existed, the district court judge clearly erred in finding and in crediting Officer Haskell's uncontradicted testimony.

[00:26:46] Speaker 02:
No, I have a different question.

[00:26:47] Speaker 02:
So that is, would it be

[00:26:51] Speaker 02:
a clear or plain error if the government, and this is hypothetical now, goes into Superior Court.

[00:26:58] Speaker 02:
doesn't want to bother Haskell or Officer 750.

[00:27:01] Speaker 02:
It's their day off.

[00:27:03] Speaker 02:
We'll have to pay them overtime if they come in.

[00:27:05] Speaker 02:
Let's just grab this officer into Superior Court.

[00:27:07] Speaker 02:
This officer gets in there and is a disaster.

[00:27:09] Speaker 02:
It's a witness that doesn't have any real knowledge of anything.

[00:27:12] Speaker 02:
Superior Court says no probable cause.

[00:27:14] Speaker 02:
Prosecutor goes, shoot.

[00:27:16] Speaker 02:
That didn't go well.

[00:27:17] Speaker 02:
Let's call Haskell.

[00:27:18] Speaker 02:
Let's get him in here, even though it's his day off.

[00:27:19] Speaker 02:
And let's cross the street and go over to District Court and see if there was probable cause for this arrest.

[00:27:26] Speaker 02:
Maybe it was just enough of a record, but you sure didn't improve it a whole lot and left a lot of holes and questions in there.

[00:27:35] Speaker 02:
Is that allowed?

[00:27:36] Speaker 03:
I mean, you know, you just got a partnership.

[00:27:40] Speaker 02:
You're form shopping and you're doing, that minimum didn't work, let's try a little bit more.

[00:27:44] Speaker 02:
If the district court here had said, I can't figure this out without having the officer who arrested Burroughs here, then you go down to another district court judge or back to Superior Court and get that one.

[00:27:54] Speaker 02:
What do I do with this image, my concern that this case is creating for me?

[00:27:59] Speaker 03:
I think first, that concern, given the record that we have here, again, with no collateral estoppel or any type of bad faith arguments having been made below or preserved.

[00:28:11] Speaker 02:
No, no.

[00:28:11] Speaker 02:
Collateral estoppel was read.

[00:28:13] Speaker 02:
They didn't use the magic words, but they talked about inconsistent probable cause rulings.

[00:28:18] Speaker 02:
And even if they hadn't raised it, we have plain error reviews.

[00:28:21] Speaker 02:
So I don't think that is a complete escape hatch for you.

[00:28:25] Speaker 02:
Well, and even looking through plain error, would it be plain error to do that marching?

[00:28:29] Speaker 02:
And I know there were days elapsed and it wasn't exactly that scenario, but I assume you would agree that that sort of, let's try this, that didn't work, let's try this across the street, that didn't work, let's go back across the street and grab another witness, that didn't work, would be entirely inappropriate behavior for the government.

[00:28:45] Speaker 03:
I don't agree that that is how the facts unfolded here.

[00:28:49] Speaker 03:
There were completely different charges that were appropriately brought in two separate forums, charges that could not be initiated in the alternate forum before two different courts.

[00:29:04] Speaker 03:
But I'm not aware, standing here today, and this, again, was not briefed or teed up as an issue that- Clarke's stop was briefed.

[00:29:12] Speaker 03:
Well, this particular- I don't-

[00:29:15] Speaker 03:
I'm not aware of any case that would preclude the government from seeking to initiate charges where there wasn't a final judgment entered in one court from seeking to bring those charges in another court.

[00:29:30] Speaker 02:
I'm just responding to your argument in your brief.

[00:29:32] Speaker 02:
I mean, this all comes from your argument in your brief.

[00:29:34] Speaker 02:
It's not final.

[00:29:35] Speaker 02:
It's preliminary.

[00:29:36] Speaker 02:
It doesn't have any binding effect at all.

[00:29:39] Speaker 02:
And I'm trying to figure out how it could stop the scenario I'm worried about.

[00:29:44] Speaker 02:
but not stop this case.

[00:29:47] Speaker 02:
And that's the legal answer I was hoping you would offer.

[00:29:50] Speaker 03:
I'm not sure that there's a scenario, there's law that would clearly dictate that this scenario that you have posed is one that is precluded by a legal principle.

[00:30:04] Speaker 03:
Again, understanding that

[00:30:07] Speaker 01:
a preliminary hearing ruling is it is not that there was it's not preliminary it was the end of that case it's the end of that case it's about the evidence in this case if we were to find that there's not that there's not that there's not that there's not that there's not that there's not that there's not that there's not that there's not that there's not that there's not that there's not that there's not that there's not that there's not

[00:30:33] Speaker 01:
how what the district court held is squared with the evidence that we have.

[00:30:37] Speaker 01:
And let me just ask one one question to start.

[00:30:39] Speaker 01:
If we find that it's not credible that Officer Haskell could have both facilitated the arrest of Hartfield and had his eyes on

[00:30:53] Speaker 01:
the other suspect enough to say that that was Burroughs when he's arrested.

[00:30:59] Speaker 01:
He just couldn't have done both those things at the same time.

[00:31:03] Speaker 01:
Then can we still sustain the probable cause for the arrest of Burroughs, and if so, on what basis?

[00:31:10] Speaker 01:
So assuming, I know this is not your position, but if we assume that Haskell's testimony is not the basis in the continuous watching of

[00:31:20] Speaker 01:
is unavailable as factual support.

[00:31:24] Speaker 01:
Can we nonetheless affirm?

[00:31:27] Speaker 03:
I may have misunderstood your question.

[00:31:29] Speaker 03:
I think, as to the first way that I understood the question, this court does not need to find that Officer Haspel assisted in both the arrest of

[00:31:43] Speaker 03:
Hartfield or the individual that Officer 750 is stopping and the arrest of Burroughs.

[00:31:48] Speaker 03:
What the district court judge found and what the evidence support and there's no clear error in finding is that Hartfield testified that he had his eyes on and never lost sight

[00:32:04] Speaker 03:
of the individual who came through that wood line and came out, looking at Governments Exhibit 1, came out to where the X is on the map.

[00:32:13] Speaker 03:
And then you couple that and marry that testimony with Sergeant Wade's testimony that this person who was stopped in this parking lot, the only person stopped in this parking lot, was appellant.

[00:32:25] Speaker 03:
And so what Judge Boasberg recognized was that

[00:32:29] Speaker 03:
It's possible that Officer 750 was in front of or around 3425 and thought that the helicopter was assisting him or intending to assist him and speaking to him when he stopped a different individual.

[00:32:46] Speaker 01:
Okay, my question's still pending.

[00:32:48] Speaker 01:
I understand all that, but my question is, assuming that we think

[00:32:54] Speaker 01:
For whatever reason, Haskell wasn't watching Burroughs, either because he was watching Hartsfield, or we just don't know.

[00:33:06] Speaker 01:
But I mean, I think the evidence pretty strongly shows that he was watching Hartsfield, and there was a dialogue between them, and that person was arrested.

[00:33:13] Speaker 01:
But for whatever reason, if you take out the Haskell testimony, my question to you is, can you still support the probable cause finding the district court, and if so, on what ground?

[00:33:23] Speaker 03:
I mean, without Officer Haskell's testimony.

[00:33:27] Speaker 01:
I mean, you can have Haskell saying four people bailed out and they started running, but he loses sight.

[00:33:31] Speaker 01:
Just imagine that that's what we think the testimony shows.

[00:33:34] Speaker 01:
But he loses sight of one of these two.

[00:33:39] Speaker 01:
And the one he loses sight of is the one that runs south.

[00:33:43] Speaker 03:
I think that that would just be a completely different scenario, and I'm not sure I had, because that's not the evidence.

[00:33:48] Speaker 01:
OK, so you don't think there's a basis without that?

[00:33:56] Speaker 03:
I mean, I think that you still would have the evidence that at the time of the bailout, you have Officer Haskell testifying that there are only four people.

[00:34:05] Speaker 03:
He sees four people bail out of the car.

[00:34:07] Speaker 03:
He provides clothing descriptions that he does not see anyone else in the area.

[00:34:12] Speaker 03:
And he talks about his ability to see the area and observe from his distance.

[00:34:17] Speaker 03:
that when officers come into that lower parking lot, you have Sergeant Wade's testimony through his conversations with Sergeant Bowman that appellant was the only person in that parking lot.

[00:34:31] Speaker 01:
So Wade heard from Bowman, who heard from who's the arresting officer?

[00:34:37] Speaker 03:
Whether it was Oliveri or Williams.

[00:34:40] Speaker 01:
So it's Williams down in the south parking lot, right?

[00:34:43] Speaker 01:
Yes, I don't think it was Bowman.

[00:34:46] Speaker 01:
What?

[00:34:46] Speaker 01:
Right, so you have this sort of double hearsay.

[00:34:48] Speaker 01:
Yes.

[00:34:48] Speaker 01:
But there was testimony that there were actually smitten people out by that time.

[00:34:52] Speaker 03:
But again, that was after.

[00:34:54] Speaker 03:
By the time of the arrest.

[00:34:55] Speaker 03:
By the time.

[00:34:56] Speaker 01:
By the time of Burroughs arrest, there were, there was testimony that there were people out all around, right?

[00:35:01] Speaker 01:
There were four people in that parking lot.

[00:35:03] Speaker 03:
So the officers testified that after they arrived on the scene and observed burrows and brought the police presence to that location, people began coming out of their buildings.

[00:35:12] Speaker 03:
I don't know that there was a specific moment where they said that that was before or after the moment of the arrest.

[00:35:19] Speaker 03:
But no, the evidence, I think you could rely on the evidence that there was no one other than the four people coming out of that stolen car that

[00:35:28] Speaker 03:
This is in the direction that Haskell saw the individuals running, that the person stopped in that lower parking lot is the only person matches the clothing description.

[00:35:37] Speaker 01:
Clothing description, you have to admit, is pretty generic.

[00:35:40] Speaker 01:
Even when there's only these four individuals, two of them had the same.

[00:35:43] Speaker 03:
So I don't think that it's the most specific clothing description, but this was never the issue that had to be tackled.

[00:35:49] Speaker 01:
I think it was yesterday.

[00:35:49] Speaker 01:
Three out of five people were wearing that same coat.

[00:35:52] Speaker 03:
That may be the case.

[00:35:53] Speaker 03:
But again, there were only four that Haskell saw in the area, and all of them had come from the stolen vehicle.

[00:36:00] Speaker 03:
But that's not what the district court had before it in this case, as I think your question recognizes.

[00:36:05] Speaker 03:
There was much more.

[00:36:06] Speaker 03:
There was the powerful and convincing testimony that the judge was free to credit and that it is the trial courts

[00:36:12] Speaker 03:
It's an obligation to make those credibility determinations.

[00:36:15] Speaker 02:
Just one last question.

[00:36:17] Speaker 02:
Just a quick question.

[00:36:18] Speaker 02:
Hartsfield was prosecuted, too, in Superior Court?

[00:36:23] Speaker 03:
Well, yes, the preliminary hearing and proceedings that involved Hartsfield as well.

[00:36:27] Speaker 02:
But Hartsfield was a probable cause for Hartsfield, suppressed?

[00:36:31] Speaker 03:
Yes.

[00:36:32] Speaker 02:
But he wasn't prosecuted.

[00:36:33] Speaker 02:
He was prosecuted in Superior Court?

[00:36:36] Speaker 03:
Which court?

[00:36:38] Speaker 03:
Well, I think that what the record here shows is that a case was initiated against Hartsfield at the same time as Burroughs in Superior Court for the unauthorized use of the vehicle charges and that a preliminary hearing was held for both individuals and that probable cause based on the testimony that was presented at that hearing was found as to Hartsfield's arrest.

[00:36:58] Speaker 02:
And then the charges were dropped against Hartsfield.

[00:37:00] Speaker 02:
There wasn't probable cause for Burroughs.

[00:37:02] Speaker 02:
What I'm trying to figure out is, can you represent to this court that both at that hearing and going forward, the representations that are made in this case about the source of probable cause for Burroughs were fully consistent with the representations made about probable cause for Hartsfield?

[00:37:19] Speaker 02:
This would be bad if, like, over in Superior Court, you were saying, well, the helicopter was out of our Hartsfield.

[00:37:24] Speaker 02:
The officer said he was arresting him right in front of 3625 or whatever the number was.

[00:37:29] Speaker 02:
Right?

[00:37:29] Speaker 02:
We don't want you saying Falcon gave probable cause for Hartsfield there in a different way than for here.

[00:37:34] Speaker 03:
So I think just to be clear, the government, I think as Judge Boasberg recognized, I'm not sitting here trying to say that there is an explanation that is borne out and established by the evidence as to kind of the discrepancy that Judge Boasberg acknowledged, but then went on to find, despite understanding that discrepancy, that there was probable cause for the arrest.

[00:38:01] Speaker 03:
I'm not aware of a position kind of explaining that possible discrepancy.

[00:38:06] Speaker 03:
I think the government presented the evidence.

[00:38:08] Speaker 02:
You don't know what happened in the Hartsfield case?

[00:38:10] Speaker 03:
I actually, standing here today, do not know the final result.

[00:38:13] Speaker 03:
I know what happened at the time of the probable cause determination, and I'm happy to look that up.

[00:38:19] Speaker 02:
And the basis for probable cause for Hartsfield was?

[00:38:23] Speaker 03:
Was the stop made in the area of 3425.

[00:38:29] Speaker 02:
By Officer 750.

[00:38:31] Speaker 03:
Yes.

[00:38:32] Speaker 02:
Radio and back.

[00:38:33] Speaker 03:
I mean, I don't know that Officer 750 was identified at that hearing either, but that there was a stop, and the government's evidence showed that he was in fact stopped by the location of 3425 Fifth or Sixth Street.

[00:38:47] Speaker 01:
Do you know, Ms.

[00:38:48] Speaker 01:
Bates, on which side of Sixth Street, the building 3425 is located?

[00:38:55] Speaker 01:
Is it west or east?

[00:38:57] Speaker 03:
So I think that

[00:38:59] Speaker 03:
Reading the transcript, looking at a map, the address of 3425 6th Street appears to me at least to be on the east side of 6th Street.

[00:39:10] Speaker 03:
The photographs that are the defense exhibits that were used at the preliminary hearing and reading the transcript at the preliminary hearing and trying to piece together the

[00:39:20] Speaker 03:
But we're obviously, you know, motions pointing onto a map at that hearing.

[00:39:24] Speaker 03:
It appears that the building that everyone was talking about was one of the buildings in Government Exhibit 1, 3425, with this awning on it that there are photographs of with the number 3425 that has access

[00:39:37] Speaker 03:
up the stairs off 6th Street, which are shown in the defense exhibits.

[00:39:42] Speaker 03:
I believe standing here that that building, although it appears to come off 6th Street, may carry a 5th Street address.

[00:39:49] Speaker 01:
So it may actually be 3425 5th Street.

[00:39:51] Speaker 01:
We just don't know.

[00:39:53] Speaker 01:
That's correct.

[00:39:54] Speaker 01:
That's not in the record.

[00:39:55] Speaker 01:
Well, there's some ambiguity as to where

[00:39:58] Speaker 01:
that actual building is.

[00:39:59] Speaker 03:
I think there's some ambiguity, potentially, about whether the physical address is correct that is 6 as opposed to 5.

[00:40:07] Speaker 03:
I don't believe at the hearing there was, if you read the full transcript, and Judge Boasberg's finding that there was any ambiguity about what building the witnesses were all pointing to and identifying.

[00:40:17] Speaker 01:
In your view, the witnesses, it all is consistent.

[00:40:19] Speaker 01:
The witnesses were on the west side of 6th Street and on the east side of 5th.

[00:40:22] Speaker 01:
That's how I read the transcript, but I think that they're... It's also somewhat murky as to where the bailout occurred, where the car, the stolen car, was.

[00:40:32] Speaker 01:
Some have them further up on 5th and some in the parking lot, sort of when you get down to the foot of 5th.

[00:40:42] Speaker 03:
So I would say that I don't think that the evidence was

[00:40:47] Speaker 03:
Murphy on that point given officer Haskell clearly marking on governance exhibit one the location of the bailout as being in this part of the parking lot describing it as being between the two buildings.

[00:41:01] Speaker 01:
Although there's also the two pairs of buildings and I mean there was testimony that it was a little further up and I think that makes a difference because part of what you're relying on in terms of

[00:41:14] Speaker 01:
What Haskell is describing is running, I think it's running toward 6th and Mississippi, and if the car stops further up, it's more consistent with the 3425 to be running south to get there, whereas if it stopped over a little bit more to the west,

[00:41:34] Speaker 01:
a little more confusing to figure out how he could have observed them running towards 6th and Mississippi.

[00:41:40] Speaker 03:
Yeah, I mean, I will say the evidence that Judge Boasberg had before him and what he credited, which was Officer Haskell's version of the events, I don't believe that I missed a portion of the transcript, but I think Officer Haskell was clear in all respects about the location of the bailout and did not express any hesitancy about where the bailout occurred.

[00:42:02] Speaker 03:
And so, Judge Boasberg's findings would be consistent with that, with viewing the suspects run around the building, as Officer Haskell described, and down towards Sixth and Mississippi through the wood line.

[00:42:15] Speaker 03:
I think Judge Boasberg was faced with one of the defense witnesses, the stepfather of appellant, but noted that he did not credit the testimony presented by that witness.

[00:42:29] Speaker 03:
unless there any further questions we ask that the judgment of this year at the district court i'd like to be a friend

[00:42:43] Speaker 04:
Officer Haskell never testified that he had his eyes on burros and he watched burros run from the car to through the woods to the parking lot.

[00:42:54] Speaker 04:
He didn't know who he was looking at.

[00:42:57] Speaker 04:
He could describe clothing, but that's all.

[00:43:00] Speaker 04:
At least five people were stopped that night.

[00:43:03] Speaker 04:
Three of them had on black coats and blue jeans.

[00:43:10] Speaker 02:
Did you preserve the collateral estoppel argument or not?

[00:43:13] Speaker 04:
Yes, I agree that those words were never uttered, but the attorneys argued that the probable cause finding or the finding of no probable cause in superior court should apply later.

[00:43:33] Speaker 05:
Where did they argue that?

[00:43:35] Speaker 05:
They mentioned that no probable cause was found.

[00:43:37] Speaker 05:
Where did they argue finality and preclusive effect?

[00:43:40] Speaker 05:
They don't have to use the word collateral or stoppable, but they have to make that argument, right?

[00:43:43] Speaker 05:
They have to make the argument that this issue has been decided.

[00:43:48] Speaker 04:
Well, they made the argument that the issue had been decided and that that holding should continue to apply.

[00:43:57] Speaker 05:
Would you tell me the pages in the brief where they cite that, that I couldn't find anything like that?

[00:44:03] Speaker 04:
OK, it might be in the written motions.

[00:44:09] Speaker 05:
I might be okay.

[00:44:10] Speaker 04:
Well, I'm happy to look for it.

[00:44:13] Speaker 04:
Can you send a letter right now?

[00:44:14] Speaker 00:
Yeah, can you send a letter?

[00:44:15] Speaker 04:
Yes, I will send a letter.

[00:44:16] Speaker 04:
I also wanted to point out that it would have been very odd for Officer 750 to be in the lower parking lot and yet mistakenly think that he was at 3425.

[00:44:38] Speaker 04:
From the lower parking lot, you cannot even see 3425.

[00:44:41] Speaker 01:
I don't think the government is arguing that Officer 750 was the officer that arrested Burroughs.

[00:44:49] Speaker 01:
Is that what you're understanding them to be saying?

[00:44:51] Speaker 04:
I think the court found that Officer 750 was the one who's confused.

[00:45:02] Speaker 04:
for one of two reasons.

[00:45:04] Speaker 04:
Either because he actually was with Falcon in the lower parking lot, but he thought he was at 3425, or because there were two arrests going on at the same time, and he thought Falcon was above him, even though Falcon was really above someone else at a different location.

[00:45:28] Speaker 01:
Doesn't it kind of have to be the latter because there's also all this testimony about there were only two people in and two people out, there were only two arrests, and one of the theories that the district judge was throwing around is that, you know, I mean it's not, I don't think it's implausible that these people would have been arrested simultaneously and that

[00:45:48] Speaker 01:
hartsfield would say i've got somebody and then at the same time different officers interest because basically running this process this is arriving but uh... but there is this testimony we have to in and to out and so then the question is well they really would have had the three and it's also extremely odd that if haskell was helping with the arrest of burrows

[00:46:18] Speaker 04:
that none of that scenario that he talks about would have made it into any police report, into the Gerstein, into the field notes of the officers.

[00:46:30] Speaker 04:
They give no, you know, there's no description.

[00:46:33] Speaker 01:
You said it wouldn't be in the officers' reports.

[00:46:35] Speaker 01:
It wouldn't be in the what's team?

[00:46:37] Speaker 04:
The Gerstein is the document that they provide in Superior Court for a probable cause hearing.

[00:46:44] Speaker 04:
We only know of two scenarios where there was probable cause, or at least described in the report.

[00:46:53] Speaker 04:
One of them was the juvenile, and the other was Cody Hartsfield.

[00:47:01] Speaker 04:
And that's what's described in the Gerstein.

[00:47:04] Speaker 04:
There's no description at all of

[00:47:10] Speaker 04:
the circumstances of the arrest of Mr. Burroughs.

[00:47:13] Speaker 04:
In the reports in the Gerstein, when Officer Wade is asked at the trial what were the circumstances, he testifies that

[00:47:32] Speaker 04:
He says, Mr. Burroughs was stopped that evening by officers when the lookouts were given, and the helicopter had stated that these individuals were traveling through the wood line from 5th Street towards 6th Street.

[00:47:45] Speaker 04:
And he was stopped almost immediately after units arrived on the scene.

[00:47:49] Speaker 04:
But no description of what he was doing when he was stopped, whether Falcon was involved, no description whatsoever.

[00:47:57] Speaker 04:
Basically, all of the reports and waves say that Burroughs was arrested.

[00:48:03] Speaker 04:
and nothing more.

[00:48:04] Speaker 04:
Thank you.

[00:48:06] Speaker 05:
Okay, thank you very much.

[00:48:08] Speaker 05:
The case is taken under advisement, but Ms.

[00:48:10] Speaker 05:
Rowland, you're going to give us a supplemental.

[00:48:12] Speaker 05:
Okay, thank you.