[00:00:03] Speaker 02:
Case number 06-3090 at L, United States of America versus Keith B. McGill Appellant.

[00:00:09] Speaker 02:
Group issues, appellant's presentation.

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Issue 1, Sixth Amendment verdict, Mr. Smith.

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Issue 2, Government overview witness, Mr. Hart.

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Issue 3, Other crimes evident, Mr. Gilbert.

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Issue 4 and Issue 17, Issue 4, Confrontation Clause and Issue 17, Misconduct Closing, Mr. Retoreta.

[00:00:35] Speaker 08:
May it please the Court, my name is Greg Smith, and along with Dennis Hart, Richard Gilbert, Manny Redoretta, David Smith, and Mary Davis, who will speak next in line, we represent the appellants in this action.

[00:00:47] Speaker 08:
I'll begin our argument with issue one, dismissal of juror nine on the ninth day of deliberations which violated our client sixth amendment constitutional right to a unanimous verdict.

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This court cannot affirm that verdict, at least without fundamentally changing existing law and shifting dramatically to become the most lenient circuit in the country to enable dismissal of jurors, which would also require this court to overrule its binding decision in Brown.

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No reported case ever has involved the breadth and depth of jury irregularity seen here.

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No reported case even comes close.

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Under Brown, as even the government concedes, and I quote from their brief,

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Rule 23b is not available when the record discloses a possibility that the juror believes the government has failed to produce sufficient evidence to support a conviction.

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That standard, their own standard, exactly as they specified it, was not met in this case.

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The juror did.

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Do you think the a possibility is to be taken literally?

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There's always a possibility in the world of human uncertainty.

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understand Judge Williams, and there has been a reasonable possibility standard that has been discussed in Simonton.

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But even under the reasonable possibility, in fact, even under the substantial possibility, the record reflects a substantial possibility.

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But even, it certainly reflects a reasonable possibility.

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You're never going to find a case like this again.

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Juror 9 was removed nine days into deliberations at a time when he was known to be the one to hold out after he denied any wrongdoing and expressed a willingness to deliberate and follow the law based on a challenge from Juror 12, who had already shown himself to be anti-defense and whose challenge included private talks with Juror 10, excuse me, the four-person 10,

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when not all jurors were present.

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After the defense had warned the court that any voir dire would invade juror secrecy, and the court was only, and then only selectively interviewed three jurors, ignoring the remaining nine, three-quarters of the jury was never asked,

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and with the judge himself having personally gone inside the jury room during deliberations and then expressly using that entry.

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Did any of the defense counsel ask for additional jurors to be vaudeered?

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Yes.

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Before the dismissal of juror nine?

[00:03:11] Speaker 08:
Well, Your Honor, the answer to that question is that the dismissal occurred when they walked in the courtroom and they found juror nine was gone.

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The court had indicated that he might dismiss juror nine and the next thing you knew he was gone and he'd been dismissed ex parte.

[00:03:26] Speaker 05:
So the opportunity to raise that issue simply wasn't available to the defense and moreover under... But did you know before then that there were two jurors who were going to be questioned?

[00:03:38] Speaker 08:
Your Honor, there were three jurors that were questioned.

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Two initial ones, sorry.

[00:03:42] Speaker 08:
Right, three were questioned.

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But Your Honor, the problem with that is that the defense said that you should never go in at all.

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But they did indicate and ask that all the jurors be interviewed.

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But the juror nine was already gone before they knew it.

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The court surprised everyone by dismissing juror nine ex parte.

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And that too makes this case different than any other that I've seen.

[00:04:09] Speaker 01:
What is our standard of review for the decision about what level of inquiry to undertake by the district court?

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For example, to call in the other jurors, there's probably pros and cons to doing that from either side.

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So how do we review that particular decision?

[00:04:25] Speaker 08:
Your Honor, I think that is a great question because that is key error here.

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And that's under this court's Ginyard case and Patterson case.

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Ginyard says that the Sixth Amendment and Rule 23 both require a searching inquiry.

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That's the court's language, this court's language.

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Anytime any juror is dismissed, but particularly with a holdout juror, it has to be a heightened.

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There is a heightened duty if it's a known juror.

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So regardless of whether the defendant asked for it.

[00:04:55] Speaker 01:
So there's a heightened duty on the district court judge, and they have to undertake a searching inquiry.

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But then how do we review

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particular decisions by the judge in the course of that inquiry process.

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Is that subject to the abuse of discretion standard that was set up at the outset of Ginyard, or what standard review would we do to that?

[00:05:18] Speaker 08:
Your Honor, Ginyard does say that it's an abuse of discretion standard, but it found an abuse of discretion.

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So did this Court's Patterson case found an abuse of discretion?

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The court said this.

[00:05:27] Speaker 01:
In years in one where the government conceded, is that correct?

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It did, but then this court said, we don't accept that concession.

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We're going to conduct an independent inquiry.

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And it found that there was an abuse of discretion, as it had in Patterson.

[00:05:38] Speaker 01:
So just to be clear, because as you know, there are tons of cases in this area.

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You think it's abuse of discretion as to the judge's decisions about how to implement that searching inquiry?

[00:05:51] Speaker 08:
Yes, Your Honor.

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Let me just say two or three things real quick.

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One is, Ginyard specifically said the court may not rely on an unexamined state of uncertainty.

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Here, one juror only, one juror only said that juror nine failed to deliberate.

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Only juror 10 said that.

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One juror only said they had fears about juror nine.

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Juror 10 only.

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One juror only.

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Juror 12 said that he secreted notes out of the jury room.

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There was one juror on each of these.

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And all those other jurors had personal knowledge.

[00:06:27] Speaker 01:
Can we back up just a little bit on the, at least as to the failure to deliberate, there were jury notes coming out communicating that concern as well.

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So do we assume that juror notes are coming from one juror or the full jury?

[00:06:42] Speaker 08:
Well, Your Honor, I think they come from the full

[00:06:44] Speaker 01:
So then it sounds like there was more than one juror that was at least concerned about the deliberations issue.

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Juror Note 8 said this, Your Honor.

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We have deliberated diligently and in good faith for five and a half days.

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Diligently and in good faith.

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That's what the whole jury said.

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The only juror who said the jury didn't mean the jury.

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was juror 10.

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All those other nine jurors had independent knowledge of whether the juror nine had been deliberated, and they were never asked.

[00:07:18] Speaker 09:
Yeah, one sentence says the jury has deliberated differently.

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That goes on to say one juror continues to refuse to accept any evidence.

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To accept any evidence?

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Accept any evidence.

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And then juror 10 later says that that includes defense evidence.

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Well, he has the right to refuse to accept evidence.

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It doesn't mean that he's not considering evidence.

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Your Honor, I think he has the ability to make credibility findings.

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Yes, that's the credibility findings that include the rejection of all evidence submitted.

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It seems possible that every witness in every sentence lied or was mistaken, but it seems pushing things.

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Your Honor, this was

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a reasonable doubt case.

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And this is a case where we had incredibly impeachable witnesses.

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They were impeached left and right and sideways.

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I've never seen a group of witnesses like this in a case.

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I don't think you could.

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I suspect you maybe haven't either, unless it was the great one case.

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This is a case where believing nothing that was presented would have been a plausible response from the juror.

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And he was right that once.

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According to the at least juror of 10, and it's not inconsistent with,

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Note number eight.

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He rejected everything.

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Made the defense evidence as well.

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So that's the vulnerability of the government witnesses only gets you part way.

[00:08:59] Speaker 08:
Well, the defense was calling jail witnesses, too, who were Hefferlin and Peep's judge.

[00:09:03] Speaker 08:
So I don't think that it's that surprising.

[00:09:07] Speaker 05:
But I think... Can I just get back to this question of the calling of a certain number of jurors rather than all the jurors?

[00:09:14] Speaker 05:
So at a point in time, just explain to me how this works procedurally.

[00:09:17] Speaker 05:
So at a point in time at which the judge indicates that he's going to question three jurors, at that point, does the defense not have an opportunity to say, look, we don't think you should go down this road at all, but if you do, you ought to at least interview everybody?

[00:09:33] Speaker 05:
Well, Your Honor, they did say that.

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When the defense counsel first knew that there were going to be three jurors,

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or are you talking about after the fact?

[00:09:44] Speaker 08:
Your Honor, they're trying to preserve the argument that there shouldn't be any inquiry at all.

[00:09:48] Speaker 05:
No, but when you say they did, just to be clear, when you say they did do that, I'm asking you because I don't know, when you say they did do that, do you mean they did do that before the dismissal of Juror 9, or do you mean they did it later?

[00:10:04] Speaker 05:
No, it was later, Your Honor.

[00:10:06] Speaker 08:
But my point is that Ginyard

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independently, even if nothing is asked, requires a searching inquiry, a heightened inquiry.

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It says the court may not rely on an unexamined state of uncertainty.

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Well, here where the other nine jurors clearly knew whether a juror nine had deliberated, they were there in the jury room.

[00:10:26] Speaker 08:
It's an unexamined state of uncertainty.

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You can't just rely on one person, juror 10, saying that he failed to deliberate.

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And Judge Williams, the note specifically said, even in the same note that you're referencing, it says, this jury has deliberated diligently and in good faith.

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The jury.

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So unless the jury doesn't mean the jury.

[00:10:47] Speaker 09:
I mean, you think you're getting a lot of weight on the first sentence.

[00:10:51] Speaker 08:
Well, but I think that the earlier notes also show movement.

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The earlier notes show that he first said it was not likely we'd reach a verdict, and then they said it appears that we're not going to reach a verdict.

[00:11:03] Speaker 08:
It shows that there is movement.

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And if there's movement, then there's deliberation going on, Your Honor, because that's what deliberations are.

[00:11:13] Speaker 01:
Put aside the deliberation issue.

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It's complicated.

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That's its own complicated story.

[00:11:18] Speaker 01:
What do we do with the independent finding of juror misconduct in this case?

[00:11:27] Speaker 08:
Your Honor, again, on the misconduct, it comes from one juror.

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So I think even on that, there is an inadequate inquiry.

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And in fact, there was evidence of the other jurors.

[00:11:36] Speaker 01:
Well, how is it inadequate in that sense?

[00:11:38] Speaker 01:
This is the thing that the judge, again, I'm not making the fact findings in the first instance.

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We've got to review these for clear error.

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And the district court found that he was engaged in covert behavior hidden from other jurors.

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If that fact-finding is not clear error, then how would it be an abuse of discretion to say, I'm not going to haul the other nine jurors out here for questioning when, as I've found and I've gotten evidence, this thing was done secretly.

[00:12:09] Speaker 01:
I'm not going to put other jurors through that process.

[00:12:11] Speaker 01:
There's real downsides to doing that.

[00:12:13] Speaker 08:
Well, Your Honor, I think that the problem is, first of all, I think, let's keep this in context.

[00:12:19] Speaker 08:
The fact-finding was entered by the court in terms of the secreting and the fears.

[00:12:26] Speaker 08:
That occurred after Judge Mikva had been on the front page of the Washington Post.

[00:12:31] Speaker 01:
I understand the progress here.

[00:12:36] Speaker 01:
Are you saying that makes the fact findings clearly erroneous, or are we accepting those facts?

[00:12:41] Speaker 01:
Do you accept the fact findings that the district court judge made and say it still was improper removal?

[00:12:47] Speaker 08:
Your Honor, I do think it's clearly erroneous, but I also do submit that... Did you argue clear error for the fact findings in your brief?

[00:12:56] Speaker 08:
Your Honor, I believe we did, but in any event, let me address that issue.

[00:13:08] Speaker 08:
The problem, Your Honor, with the fact-finding is that there was never any beyond a reasonable doubt fact-finding made.

[00:13:16] Speaker 01:
But for misconduct, do you need beyond a reasonable doubt?

[00:13:19] Speaker 08:
It was never made.

[00:13:20] Speaker 01:
You don't need beyond a reasonable doubt for misconduct, do you?

[00:13:23] Speaker 01:
Isn't that preponderance?

[00:13:24] Speaker 08:
It is not, Your Honor.

[00:13:26] Speaker 08:
There has never been a court that has found by preponderance.

[00:13:32] Speaker 08:
The only three cases they cite do not find that.

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The Bartanian case and the Reese cases never even get into this issue of discussing preponderance versus reasonable doubt.

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The reasonable doubt challenge was never even raised in that case.

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The only case that does talk about it is Symington.

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And Symington itself applies a reasonable doubt standard.

[00:13:53] Speaker 05:
But I thought in Ginyard, we suppose that even if you know that the person at issue is potentially a holdout share, if the reason for the possible dismissal is independent of that person's view of the evidence, then we look at it differently than we would

[00:14:10] Speaker 05:
in a different situation under Brown.

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And so if you sort of take Brown out of play and you look at what Ginyard talked about, which is suppose that there's some independent issue with this particular juror, we're going to look at it in not as skeptical of a way, then we would tend towards something like preponderance?

[00:14:26] Speaker 05:
No?

[00:14:28] Speaker 08:
Your Honor, Ginyard said when there is no possibility

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that the record shows that the motivation for the request for the juror's dismissal came from his view of the merits of the case.

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If there is no possibility, then you don't have to apply Brown.

[00:14:45] Speaker 05:
Well, can I ask you, if you've made an argument as to beyond a reasonable doubt, if the standard were preponderance, and I'm not saying it is, but if it were, would you still make an argument, or do you think that at that point?

[00:14:57] Speaker 05:
the factual findings made by the district judge stand on their own.

[00:15:01] Speaker 08:
Well, this court would be the first in the country to adopt a preponderance standard if it ever, if it did that.

[00:15:07] Speaker 08:
But yes, we also don't think of the preponderance, the evidence.

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Geronine did nothing wrong.

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He was never, there was never a violation of court error.

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No court ever has held that an unknown directive

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from an executive branch official constitutes during this conduct.

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And that's especially of a type.

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Ginyard and Patterson find that it has to be also find that it has to be necessary to remove the juror.

[00:15:37] Speaker 08:
Here, if the juror removed notes from the jury room, that's no different than walking out of the courtroom with your memory.

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And even if it were, it doesn't necessitate dismissal.

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It might warrant an instruction.

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reminding the jurors that they shouldn't be doing this.

[00:15:58] Speaker 08:
And in the other cases we see, there are those kinds of instructions given.

[00:16:02] Speaker 05:
The two jurors besides Juror 9 who were questioned about this, I guess it was 10 and 12, both understood there to be instructions.

[00:16:11] Speaker 08:
That's what they said.

[00:16:12] Speaker 08:
But Judge Lamberth even didn't view it that way.

[00:16:15] Speaker 08:
He said there was nothing wrong with removing stuff if you're just writing notes and taking them out of the room.

[00:16:19] Speaker 05:
No, no.

[00:16:20] Speaker 05:
I think he said that if it was something that had nothing to do with evidence.

[00:16:23] Speaker 05:
Right.

[00:16:23] Speaker 08:
And there was never a finding that it did have anything to do with something other than with the case.

[00:16:27] Speaker 01:
No finding not there.

[00:16:28] Speaker 01:
His fact finding is that what he did was a violation of the court's instruction to the jurors that they must not remove anything from the jury room.

[00:16:36] Speaker 08:
But there is no instruction in the record to that effect.

[00:16:39] Speaker 09:
You're relying heavily on the distinction between notebook and notes.

[00:16:43] Speaker 09:
Yes, Your Honor.

[00:16:43] Speaker 09:
There is an instruction not to take notebooks out.

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They're going to be sealed and so forth.

[00:16:47] Speaker 08:
And he never took a notebook out.

[00:16:49] Speaker 05:
He never took a notebook out.

[00:16:52] Speaker 05:
The trial judge said,

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Juror 9 was observed copying passages from his juror notebook onto his notepad.

[00:16:58] Speaker 05:
So that's a finding.

[00:17:00] Speaker 05:
And so your point is that your belief is that there's nothing wrong with that.

[00:17:04] Speaker 05:
There's no evidence of that, Your Honor.

[00:17:07] Speaker 05:
There's two questions.

[00:17:08] Speaker 05:
Are you saying there's no evidence of that, or are you saying even if that's true, there's nothing wrong with that?

[00:17:11] Speaker 08:
Well, I think it's both, Your Honor.

[00:17:15] Speaker 08:
Juror 10 did not know, excuse me, Juror 12, the accuser, did not know what was written down.

[00:17:22] Speaker 08:
And even if somebody did write something down, taking it out is no different than leaving with your memory.

[00:17:29] Speaker 08:
But more importantly, Your Honor, is this.

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They're trying to hold Juror 9 to a higher standard than the judge's own memory, who said, as long as it didn't relate to the case, it wouldn't be a problem.

[00:17:44] Speaker 08:
And that finding wasn't made until after it was basically submitted and rubber stamped with the findings that the judge had requested.

[00:17:55] Speaker 01:
What do we do with the fact, I'm sorry, I'm skipping back now to the deliberations issue that the judge injected some of his own fact findings into the case about, I saw where the juror was sitting, I didn't hear shouting, and then expressly said that he was basing his initial decision in part on those findings.

[00:18:16] Speaker 01:
How do those factor in?

[00:18:18] Speaker 08:
Your Honor, I think that shows that there was an ex parte by the court in the jury room that was prejudicial because it influenced the court's findings.

[00:18:29] Speaker 08:
It tainted the court's findings because it had to do with juror nine's credibility.

[00:18:36] Speaker 08:
He was not a fact finder, he was a fact maker.

[00:18:39] Speaker 08:
He went in and saw facts that he thought verified

[00:18:42] Speaker 08:
that Geronine wasn't credible, and so his credibility findings, which affects the misconduct issue as well, the jury notes issue as well, his fact findings on Geronine's credibility are tainted by his own shouts.

[00:18:54] Speaker 08:
What about the shouting?

[00:18:55] Speaker 09:
The shouting doesn't involve, as far as it appears, the judge.

[00:18:59] Speaker 09:
leaving his seat on the bench, or perhaps change it, I don't know, wherever he was in some place that had nothing particularly to do with the jury, he hears, apparently, the absence of any shouting, while jury number nine contends that he was constantly the object of the shouting.

[00:19:19] Speaker 09:
Is that illegitimate too?

[00:19:21] Speaker 09:
I mean, it fits your characterization of the judge being not merely attacked to find there,

[00:19:30] Speaker 09:
Your Honor, I don't.

[00:19:32] Speaker 09:
There's evidence that comes to him other than through a witness.

[00:19:37] Speaker 08:
Your Honor, I think the key point was him seeing him on the back wall, which required, which came from him walking into the jury room.

[00:19:45] Speaker 08:
But let me be clear.

[00:19:46] Speaker 09:
You put aside the shouting.

[00:19:47] Speaker 08:
Well, all right, let's talk about the shouting.

[00:19:49] Speaker 08:
Juror nine never said he was constantly shouted down, and nor did the judge say that he'd been outside the room constantly.

[00:19:55] Speaker 08:
We don't know if there was shouting that was going on when the judge wasn't around.

[00:19:59] Speaker 08:
I mean, how often would the judge have been in the jury room over the course of nine days?

[00:20:03] Speaker 08:
Clearly, there could have been some shouting that the judge didn't hear.

[00:20:06] Speaker 08:
So I don't think that that affects the countenance at all.

[00:20:08] Speaker 01:
I'm interested in your statement.

[00:20:09] Speaker 01:
If you could just explain a little more that the judge's injection of his own facts and reliance on them at the deliberations issue crossed over into the misconduct determination and the credibility judgment.

[00:20:26] Speaker 01:
Can you explain that to me a little more?

[00:20:28] Speaker 08:
The courts have found that ex parte's in a judge in the jury room are pregnant with possibilities for error.

[00:20:36] Speaker 08:
And this is a situation where he heard juror 10 saying he's not deliberating, he's off on his own.

[00:20:44] Speaker 08:
In fact, the judge even asked juror 10, is he back there sitting in the back?

[00:20:49] Speaker 08:
So the judge has seen this before.

[00:20:51] Speaker 08:
He even asked Juror 10.

[00:20:53] Speaker 08:
So when Juror 10 says that, he's saying from his own experience, gee, he's credible because I've seen it myself.

[00:20:59] Speaker 01:
But Juror 9 didn't ever dispute that he was sitting at the back.

[00:21:04] Speaker 01:
We know it's a he, right?

[00:21:05] Speaker 01:
Juror 9 was sitting at the back of the room.

[00:21:08] Speaker 01:
I mean, what caused him to be there, whether it was non-deliberation or getting shut down by the other jurors, is a separate issue.

[00:21:14] Speaker 01:
But I don't think he disputed that he wasn't sitting at the table going through papers with everybody.

[00:21:19] Speaker 08:
Well, he said he was deliberating.

[00:21:21] Speaker 08:
He said he was looking at the evidence.

[00:21:23] Speaker 01:
No, but the fact of where he was sitting wasn't disputed.

[00:21:25] Speaker 08:
But it's a fact, or it just never should have happened.

[00:21:28] Speaker 09:
You weren't saying, though, that the judge was illegitimately in the juror room on that occasion.

[00:21:34] Speaker 08:
Yes, I am.

[00:21:34] Speaker 09:
You are.

[00:21:36] Speaker 09:
You totally disregarded what he saw.

[00:21:37] Speaker 09:
You think he was illegitimately in it.

[00:21:39] Speaker 08:
I think that the law is clear that a judge is not supposed, as this court has found, even to say goodbye to a jury at the end of the day, judges are not supposed to interact with jury during deliberations.

[00:21:49] Speaker 08:
And you bet.

[00:21:50] Speaker 08:
Going into the jury room, you bet.

[00:21:52] Speaker 01:
The judge should not be in the jury room.

[00:21:54] Speaker 08:
It was air and it was prejudicial air.

[00:21:55] Speaker 01:
Did he go in or just sort of look in as he went by?

[00:21:58] Speaker 08:
He said he wouldn't step into the doorstep, is my recollection of what he said.

[00:22:04] Speaker 08:
He was in the jury room.

[00:22:06] Speaker 08:
And that is error and it is prejudicial error when he then premises his factual findings based on what he saw in the jury room, as he expressly said he did.

[00:22:15] Speaker 08:
Now, let's be clear.

[00:22:17] Speaker 08:
The judge shouldn't stop when he talks only to the jurors that have an agenda.

[00:22:21] Speaker 08:
Juror 12 and 10 had an agenda.

[00:22:24] Speaker 08:
Juror 10 confronted juror 9.

[00:22:26] Speaker 08:
He confronted him.

[00:22:27] Speaker 08:
He said, are you trying to hang up this jury?

[00:22:30] Speaker 08:
That's what juror 10 said.

[00:22:31] Speaker 08:
He was a juror with an agenda.

[00:22:33] Speaker 08:
Juror 12, we saw throughout the trial, an anti-defense bias.

[00:22:38] Speaker 08:
The judge can't only talk to the two jurors with an agenda and then stop.

[00:22:43] Speaker 08:
He's got to talk to the full jury to get the full story.

[00:22:46] Speaker 08:
That's what Ginyard said.

[00:22:48] Speaker 08:
It is supposed to be a searching inquiry.

[00:22:50] Speaker 08:
It is supposed to be a heightened inquiry.

[00:22:52] Speaker 08:
When you're talking about dismissing the holdout juror, that goes to the essence of what the Sixth Amendment is.

[00:22:57] Speaker 08:
The essence.

[00:22:59] Speaker 08:
And that's what happened here.

[00:23:01] Speaker 08:
As Ginyard said, an unexamined state of uncertainty.

[00:23:08] Speaker 08:
because the other nine jurors, three-quarters of the jury, we have no idea what they did.

[00:23:13] Speaker 08:
And beyond that, juror nine's notes were shredded.

[00:23:17] Speaker 08:
This never should have happened.

[00:23:19] Speaker 08:
You've never seen a case like this, nor have I. It should be reversed.

[00:23:23] Speaker 01:
I'm sorry, is there any case law you can point me to that would say, at least when there's some ambiguity in the record about what the instructions were to a jury, that the proper response is to call the jurors in, instruct them about notes, since it wasn't clear on the record what the instructions were, rather than remove a juror?

[00:23:43] Speaker 01:
How serious does misconduct have to be to warrant removal rather than a warning?

[00:23:48] Speaker 08:
Your Honor, the Patterson case that this court says, that Rule 23 requires not only good cause for dismissal, but it has to be necessary to remove the juror for good cause.

[00:24:00] Speaker 08:
It was not necessary here.

[00:24:02] Speaker 08:
In fact, it was a double standard the court applied, because other jurors during this case, Juror 12 repeatedly had violated the jury and the judge's instructions.

[00:24:10] Speaker 08:
He was talking during the trial he got admonished.

[00:24:13] Speaker 08:
Twice, at least, for doing exactly, even after the judge admonished him to stop talking about the evidence during the trial.

[00:24:20] Speaker 08:
He said the defense evidence was BS.

[00:24:24] Speaker 08:
Lawyers heard him.

[00:24:25] Speaker 08:
Nobody denied it.

[00:24:26] Speaker 08:
There were instructions.

[00:24:27] Speaker 08:
He was kept on the jury.

[00:24:28] Speaker 08:
He was instructed.

[00:24:29] Speaker 08:
Yet when Juror 9 supposedly takes notes out, all of a sudden, he's dismissed.

[00:24:35] Speaker 08:
Even though he indicated he was willing to do what the judge said.

[00:24:38] Speaker 08:
Even Juror 10 said that he promised he would do what the judge said.

[00:24:44] Speaker 08:
This was not a case where dismissal of the holdout for acquittal, known holdout for acquittal, should have happened.

[00:24:52] Speaker 08:
This goes to the essence of the Sixth Amendment.

[00:24:55] Speaker 08:
And the Sixth Amendment is ultimately more important than any particular jury verdict.

[00:25:02] Speaker 08:
And the Sixth Amendment was not complied with here.

[00:25:05] Speaker 08:
Thank you.

[00:25:05] Speaker 08:
Preserve my time.

[00:25:17] Speaker 07:
May it please the Court, my name is Dennis Hart.

[00:25:19] Speaker 07:
I represent Kenneth Simmons.

[00:25:23] Speaker 07:
There were times when I didn't think I would last long enough to see this day.

[00:25:27] Speaker 07:
So I'm glad to be here and discuss with the Court the overview witness problem.

[00:25:33] Speaker 07:
I'd like to begin my presentation by asking myself a question and giving myself the answer.

[00:25:40] Speaker 07:
And the question is, Mr. Hart, do you really think that we should reverse a case

[00:25:46] Speaker 07:
that comprises about 100 days of trial, 25,000 pages of testimony, approximately, on the basis of Agent Sparks' testimony, which his direct lasted about 50 pages.

[00:26:01] Speaker 07:
And the answer to that question is yes.

[00:26:04] Speaker 07:
There is no doubt in my mind that it should be reversed, because Agent Sparks is the frame for the government's case.

[00:26:15] Speaker 07:
He's the one that pre-habilitated the vast majority of the government's case, that is, their cooperators.

[00:26:23] Speaker 07:
He provided the framework for the entire government case, even if the jury began weeks later or months later to stare at the canvas.

[00:26:34] Speaker 07:
each individual witness the picture there and didn't pay attention.

[00:26:38] Speaker 05:
So can I ask you, the same issue comes up in Moore.

[00:26:41] Speaker 05:
Yes.

[00:26:41] Speaker 05:
And the court in Moore explains some of the hazards to this sort of testimony that I think you're describing now.

[00:26:48] Speaker 05:
And in Moore, the court found that notwithstanding those problems that the verdicts would not be reversed on that basis.

[00:26:58] Speaker 05:
So could you explain

[00:27:00] Speaker 05:
what the distinction, why we should have a different conclusion here than the one in Moore.

[00:27:04] Speaker 05:
And I'm sorry to compound the question, but in the course of doing that, can you also tell us whether you think plain error applies or direct or harmless error applies?

[00:27:15] Speaker 07:
I'll start at the second question so I can remember it.

[00:27:18] Speaker 07:
That is right.

[00:27:19] Speaker 07:
Thank you.

[00:27:20] Speaker 07:
I read Moore the other day and tried to find the standard of error in Moore, and I could not.

[00:27:27] Speaker 07:
They seem to

[00:27:30] Speaker 07:
They had a four-factor test about quantity of evidence, the defense case, instructions, and things like that.

[00:27:39] Speaker 07:
They never announced the standard.

[00:27:40] Speaker 07:
They seemed to use the elements of Kodiakos.

[00:27:47] Speaker 07:
But two or three paragraphs prior to that, they mentioned the word constitutional right.

[00:27:52] Speaker 07:
They mentioned it as a constitutional error.

[00:27:54] Speaker 05:
Well, what leaped out to me about the standard of review issue, the discussion and more, was that the court cited a case in its ultimate paragraph where it describes why there wasn't sufficient prejudice to warrant reversal on this basis that adopted plain error.

[00:28:08] Speaker 05:
And the quotation, I think it might have been someone, but the quotation from the case was within the context of that case's description of the plain error standard.

[00:28:18] Speaker 05:
And so I guess it seemed to me that to the extent we can divide it, the court was indicating it was applying plain error.

[00:28:23] Speaker 07:
Well, I'm unwilling to speculate what Moore thought was the standard of error, because I couldn't discern it.

[00:28:30] Speaker 09:
I know that Hampton... Doesn't it depend on the objections actually raised by Hampton?

[00:28:35] Speaker 07:
Well, yes and no.

[00:28:38] Speaker 07:
Yes, that's the traditional view, but we're not talking about a traditional case here.

[00:28:43] Speaker 07:
When this case went to trial, there were no overview objections.

[00:28:48] Speaker 07:
True, there could have been a 701 objection or a 702 objection.

[00:28:52] Speaker 09:
I agree with that, and those were not made.

[00:28:58] Speaker 09:
seeing the way things are going, makes objections that sound in more the sorts of concerns that you were ultimately expressed than with respect to those objections were over the event of a harmless error, right?

[00:29:14] Speaker 09:
Assessing the error as to whether it was harmless.

[00:29:17] Speaker 07:
I'm unwilling to agree with that, Your Honor, because... I'm not quite sure why you're resisting.

[00:29:22] Speaker 07:
Then I'll agree with you.

[00:29:26] Speaker 07:
What I meant to say that there are differences in Moore that are not present here, the one that stands out to me, the two that stand out to me, are that Moore decided, and I want to remind the court that Moore said this was a very close case on this issue.

[00:29:40] Speaker 07:
But the other two issues that I think distinguish this from Moore is that Moore said we're not going to reverse because the defendants didn't present a case.

[00:29:50] Speaker 07:
They only cross-examined the cooperators.

[00:29:53] Speaker 07:
That court seemed to think that was important.

[00:29:54] Speaker 07:
And in this case, the defense put on a month of witnesses.

[00:29:57] Speaker 07:
My count is 66 witnesses.

[00:29:59] Speaker 07:
So that's different.

[00:30:00] Speaker 09:
But most importantly... That goes to the process of applying either plain error or harm.

[00:30:09] Speaker 07:
But if I can get him before my time expires, the other important distinction is that in Moore, despite saying it was close, they did not reverse because the judge instructed about opinion evidence.

[00:30:22] Speaker 07:
He did that after the agent concluded his testimony.

[00:30:26] Speaker 07:
We do not have that here.

[00:30:27] Speaker 01:
In part, we don't have it here because there were

[00:30:31] Speaker 01:
less objections to the overview witness in this case than there were in war.

[00:30:35] Speaker 01:
And in particular, no general objection to the fact that there was an overview witness as opposed to isolated objections to particular statements.

[00:30:45] Speaker 01:
I mean, I don't know how we can expect the district court judge, Cuiasponte, to issue cautionary instructions when no one's been objecting to the overview witness.

[00:30:52] Speaker 07:
I'm sorry.

[00:30:54] Speaker 07:
Number one, I think it's the obligation of the proponent

[00:30:57] Speaker 07:
to ensure the proponent of that witness to ensure that the trial court issues the proper instructions about opinion.

[00:31:04] Speaker 07:
But number two, if you do look at those objections, not all of them, but many of them have to do with relevancy.

[00:31:10] Speaker 01:
And I believe this is... They're sentence by sentence.

[00:31:13] Speaker 01:
They are not... I didn't see.

[00:31:14] Speaker 01:
If you can point me to some of the record, I would happily look at it as someone that says, you just can't have this type of overview witness.

[00:31:20] Speaker 01:
You can't be having this general opining on, you know, your witnesses are coming, why they're good, what we did to make them safe.

[00:31:28] Speaker 07:
You're quite correct.

[00:31:30] Speaker 07:
There is no mention of overview.

[00:31:32] Speaker 07:
And there wouldn't be, in most cases, for many years after this trial, for the late 2000s,

[00:31:39] Speaker 01:
So I don't think... Well, I don't think that's true, because a few months before this trial, the Fifth Circuit specifically held that overview witnesses are forbidden.

[00:31:47] Speaker 01:
And so I don't know why that factor wouldn't have given you the ammunition to actually raise the sort of global objection that there wasn't yet circuit court authority for at the time of the Moore trial.

[00:31:58] Speaker 07:
Perhaps if we had more Texas lawyers practicing here, we'd be in better shape.

[00:32:03] Speaker 01:
But the fact is that... Well, maybe you just need Westlaw to do a little research and find these Fifth Circuit decisions.

[00:32:08] Speaker 07:
Well, I can't fault the trial lawyers.

[00:32:10] Speaker 01:
I do agree that there was no overview word used, but I think... Not just overview word used, there was no objection to an overview witness, per se, as opposed to lines of his testimony, even though you then at this point had at least Circuit Court authority to rely on.

[00:32:25] Speaker 07:
All I can say is not in this jurisdiction.

[00:32:30] Speaker 07:
Okay.

[00:32:31] Speaker 07:
Thank you.

[00:32:31] Speaker 05:
Thank you.

[00:32:47] Speaker 06:
Good morning.

[00:32:47] Speaker 06:
May I please the court?

[00:32:48] Speaker 06:
My name is Richard Gilbert.

[00:32:49] Speaker 06:
I represent Keith McGill.

[00:32:52] Speaker 06:
I don't want the court's procedures today to allow for it, but if possible, I'd like to reserve three minutes for rebuttal, assuming the court's questions leave me that time.

[00:33:02] Speaker 06:
I do represent Mr. McGill, and it does present a little bit of a conflict for me today because there are some things that distinguish Mr. McGill's case from the rest of the defendants.

[00:33:13] Speaker 06:
If I can just mention them briefly, then I will focus my efforts on talking about why this problem affected all the defendants.

[00:33:20] Speaker 06:
One, of course, the government did concede error in the admission of a wanton act of violence when McGill was a young man.

[00:33:27] Speaker 06:
And I believe that was not harmless for the reasons stated in my reply brief.

[00:33:31] Speaker 06:
And secondly, with respect to the question of objections to the jury instructions, I do think that Mr. McGill's counsel, when she says, I'm requesting an instruction relating to uncharged conduct, is a broader objection than perhaps was made by some of the other defendants in arguably asking for something along the lines of the standard instructor in this jurisdiction.

[00:33:54] Speaker 06:
Having said that,

[00:33:55] Speaker 06:
representing all the defendants, we don't want to live or die by the standard of review.

[00:34:02] Speaker 06:
I have limited time, so let's talk about whether the judge's instructions, because that's where I think the easiest issue to focus on, because it affects most of the other crimes evidence.

[00:34:12] Speaker 06:
Why?

[00:34:13] Speaker 06:
I believe it's plain error, in case that's what you believe the standard to be.

[00:34:17] Speaker 06:
And the reason for that is the instruction that the judge ended up giving, with the exception of he did identify a handful of other crimes evidence that he addressed directly.

[00:34:28] Speaker 06:
We believe he was wrong about that.

[00:34:30] Speaker 06:
If I have time, I'd like to address why.

[00:34:33] Speaker 06:
But a whole range of things, all the teenage drug dealing, McGill's earlier act of violence, the admission of the

[00:34:41] Speaker 06:
to file taxes and lots of other alleged violent behavior or attempted violent behavior during the conspiracy all came in.

[00:34:53] Speaker 06:
And in our view, the instruction that the judge gave to cover all of that was deficient on its face for two simple reasons.

[00:35:03] Speaker 06:
Related, one, it didn't list for the jury's benefit what that instruction was about, that is, what acts of conduct were going to be covered by it.

[00:35:15] Speaker 06:
And secondly, it doesn't give the jury any meaningful guidance on how to evaluate it.

[00:35:20] Speaker 06:
It is, to use a phrase from an earlier issue, it was a grocery list of reasons why this court and the standard instruction says you might permit other crimes evidence.

[00:35:33] Speaker 05:
Now, I did say the reason that you couldn't put aside the first issue for a second, because I take the point that you're contesting the fact that all the specific prior crimes weren't itemized, only a certain subset were.

[00:35:45] Speaker 05:
But on the second question as to whether the jury was adequately apprised of the proper purposes, as opposed to just a laundry list, the instruction did direct the jurors to the purpose for which they couldn't use the prior crimes, which is for propensity of criminal conduct.

[00:36:03] Speaker 06:
Well, I think realistically that didn't help very much because when you give this grocery list, laundry list if you prefer, motive, intent, opportunity, there's a fine line between those and simple propensity.

[00:36:22] Speaker 06:
Now, I'm not saying you can never navigate that line.

[00:36:24] Speaker 06:
Obviously, there are decisions that do.

[00:36:26] Speaker 06:
But the jury needs some help in navigating that line.

[00:36:30] Speaker 06:
The same thing with absence of mistake, planning, preparation, knowledge.

[00:36:33] Speaker 06:
How does that factor in here?

[00:36:37] Speaker 01:
I'll give you a concrete example.

[00:36:38] Speaker 01:
Isn't that a fairly routine?

[00:36:41] Speaker 01:
Put aside the laundry list issue.

[00:36:44] Speaker 01:
Is otherwise the content of this instruction fairly routine in criminal cases?

[00:36:51] Speaker 06:
Well, giving an instruction similar to the standard instruction, yes.

[00:36:55] Speaker 01:
Not withstanding the difficulty any human might have figuring out motive versus propensity and these types of things.

[00:37:01] Speaker 06:
But what always happens with the standard instruction, and I have to confess, for a number of years I've been on the Red Book Committee that drafts these instructions and redrafts them.

[00:37:12] Speaker 06:
And I'm pretty confident, that committee, by the way, has representatives from the US Attorney's Office, including one of my colleagues here, representatives from the Public Defender Service, Judicial Officers, Law Professors, so it isn't just me as a defense attorney.

[00:37:24] Speaker 06:
I'm pretty confident that that instruction, the way it is structured, which identifies the misconduct and then not only tells the jury, don't use it for bad purpose, but tells them the specific purpose they're allowed to consider it, I believe that's what this court, its sister court across the street, has come to expect and I think require.

[00:37:46] Speaker 06:
Let me give you an example from the government's closing argument.

[00:37:48] Speaker 06:
Ready, willing, and able.

[00:37:50] Speaker 06:
The other crimes evidence shows that men were ready, willing and able to join the conspiracy.

[00:37:55] Speaker 06:
What does that mean?

[00:37:58] Speaker 06:
We suggest it means simple propensity.

[00:38:01] Speaker 06:
The same thing with what they bring to the table or the track record of violence.

[00:38:05] Speaker 06:
But if it doesn't, who tells the jury?

[00:38:08] Speaker 06:
How does it help them understand, oh, no, this was a much more subtle point?

[00:38:13] Speaker 05:
Well, do you think it helps a little bit, at least, that with respect to the particular crimes that were itemized, one of which was related to Seeger's, I think, the instruction explains that the purpose for which that was admitted was to show why and how he joined the conspiracy?

[00:38:30] Speaker 05:
And so if the jurors see that in the instruction with respect to a particular example, then they would have some guidance as to what those words might mean in the context of the particular case.

[00:38:39] Speaker 06:
Well, turning to those, there's two problems with that.

[00:38:42] Speaker 06:
First of all, of course, that doesn't appear in the judge's final instructions.

[00:38:46] Speaker 06:
Even though he talks about, I'm going to give you more detailed instructions at the end, that particular wrinkle, how and why they joined the conspiracy, is not mentioned in his final instructions.

[00:38:56] Speaker 01:
And secondly... And this is just one question I have because it seems like throughout the trial, maybe not 100% of the time, but frequently after...

[00:39:08] Speaker 01:
which allegedly claimed to be 404B evidence came in, there would then be an instruction at that time.

[00:39:13] Speaker 01:
Is there case law saying that that doesn't help with this issue that you're raising?

[00:39:18] Speaker 01:
We can only look at the instructions that were given right before the jury retired on this issue, if that's controlling?

[00:39:25] Speaker 06:
I do cite in my reply brief, which I can grab if you needed to see it, but I do talk about there's some cases that talk about instructions during the trial are not nearly as helpful

[00:39:39] Speaker 06:
especially in a long trial with lots and lots of evidence, they're not given a copy of those earlier instructions.

[00:39:46] Speaker 06:
All right?

[00:39:47] Speaker 01:
They are given a copy.

[00:39:47] Speaker 01:
But in a long trial, they might hear it a lot, actually.

[00:39:49] Speaker 01:
In a long trial where there's a lot of this evidence coming in, they may actually hear it said again and again.

[00:39:53] Speaker 01:
I mean, that could cut both ways.

[00:39:55] Speaker 01:
I'm not disputing that the power of having it included in the final instructions, but I'm just trying to figure out how that factors into our review

[00:40:05] Speaker 01:
if at all, in your opinion that there were more specific instructions going on throughout the trial with respect to this evidence?

[00:40:15] Speaker 06:
Well, if I can just talk about the merits of it for just a minute, the problem with it with how and why they joined the conspiracy, let's assume that somehow the jurors remembered that and applied that.

[00:40:27] Speaker 05:
I think it was in the final instruction, was it not?

[00:40:30] Speaker 05:
Because I thought, am I looking at the wrong, 5453 of the joint appendix?

[00:40:35] Speaker 05:
Is that not the final instructions?

[00:40:38] Speaker 06:
Well, I cited my brief, so let me turn to that if I might.

[00:40:41] Speaker 05:
Because at that page, which is on March 30th, 2004,

[00:40:45] Speaker 05:
The judge is going through the final instructions and saying, during the course of the trial, the government presented evidence of Franklin Seeger's conduct prior to the 1996.

[00:40:53] Speaker 05:
That evidence was admitted only as an attempt by the government to explain why and how Mr. Seeger's joined the alleged conspiracies.

[00:40:59] Speaker 06:
Yes, that's what he gave for Mr. Segers, right, talking specifically about that evidence.

[00:41:05] Speaker 06:
And there had been some specific instructions.

[00:41:07] Speaker 06:
That was one of the issues, along with a couple for Ronald Alfred and James Alfred, that the court actually, the government did give notice.

[00:41:14] Speaker 06:
They actually had a hearing about.

[00:41:16] Speaker 06:
We respectfully suggest the reasons on our brief that the judge got that wrong.

[00:41:20] Speaker 06:
But I do understand that procedurally, at least, they went through the proper process.

[00:41:24] Speaker 06:
The whole rest of this had none of that.

[00:41:25] Speaker 06:
And if you read what he's talking about, the general part, which is the first two parts of that final instruction, he doesn't mention how and why they joined the conspiracy.

[00:41:34] Speaker 06:
And frankly, what does that show exactly?

[00:41:38] Speaker 09:
How they joined the conspiracy?

[00:41:41] Speaker 09:
and what's permissible.

[00:41:43] Speaker 09:
I beg your pardon?

[00:41:44] Speaker 09:
You're saying it doesn't draw a line between propensity and what is said to be permissible.

[00:41:49] Speaker 06:
That's correct, Your Honor.

[00:41:51] Speaker 06:
Because how they join the conspiracy, I think, should be translated as the manner they join the conspiracy.

[00:41:57] Speaker 06:
And lots of this early stuff had nothing to do with that.

[00:42:01] Speaker 06:
And even some of the contemporary stuff during the conspiracy obviously had nothing to do with that.

[00:42:05] Speaker 06:
Why they join the conspiracy, then you are getting close to propensity.

[00:42:10] Speaker 06:
I understand that motive can be a legitimate reason.

[00:42:13] Speaker 06:
But as I tried to explain in our reply brief, there's motive and then there's motive.

[00:42:18] Speaker 06:
There's motive generated by specific concrete events.

[00:42:23] Speaker 06:
Somebody shot somebody, so therefore I shot that person because it was my brother that was killed.

[00:42:29] Speaker 06:
But then just generally, well, I want a drug deal.

[00:42:32] Speaker 06:
I suggest that borders on propensity.

[00:42:34] Speaker 06:
And without any help,

[00:42:36] Speaker 06:
to the jury and figuring that out, I submit it was a reversible error.

[00:42:43] Speaker 01:
I confess to not having been a criminal trial lawyer.

[00:42:46] Speaker 01:
One thought I had on this instruction is that if the district court had stopped in the course of doing this general 404B instruction and referred again to every single piece of this evidence that had come in,

[00:43:03] Speaker 01:
Would you be here objecting that that was sort of driving all that stuff home again?

[00:43:07] Speaker 01:
The last thing you wanted was a reminder of all that other evidence?

[00:43:11] Speaker 01:
Is the judge sort of going to catch 22 there?

[00:43:14] Speaker 06:
Well, of course, there are millions of different views of defense attorneys about how to try a case.

[00:43:20] Speaker 06:
My personal view, perhaps colored by my experience on the Red Book Committee as well, would be that I would be objecting to that instruction.

[00:43:29] Speaker 06:
particularly because of the back end, because it doesn't really help.

[00:43:33] Speaker 06:
And the government's allowed to make these statements in their rebuttal argument and their closing argument, ready, willing, and able, bring to the table, those kinds of things.

[00:43:43] Speaker 06:
And how's to tell the jury that's not right, or is it right?

[00:43:47] Speaker 06:
But having said that, let me just point out there's one practical problem with not listing that, and that has to do with the intrinsic evidence, or what the government claims today is intrinsic evidence.

[00:44:00] Speaker 06:
You know, there were no findings on that.

[00:44:02] Speaker 06:
Part of what

[00:44:03] Speaker 06:
Now, I understand it's the law in this jurisdiction that the government doesn't have to give notice about intrinsic evidence.

[00:44:10] Speaker 06:
I really suggest that that's a problem that you will encounter, and this is an example of it.

[00:44:14] Speaker 06:
But at least at the point when you're going to start talking about jury instructions, then the government says, well, no, we don't have to.

[00:44:22] Speaker 06:
Well, we think when Keith McGill asked Oscar Veale to kill Anton Ball, we think that's intrinsic to the conspiracy.

[00:44:31] Speaker 06:
At least we could have a discussion about that.

[00:44:34] Speaker 06:
The judge would have some findings about that, because it makes no sense to us, as I point out in the brief.

[00:44:38] Speaker 01:
Can I just clarify one thing?

[00:44:39] Speaker 01:
So, and I know it's hard to speak for all the defense attorneys, but you're kind of doing that on this issue.

[00:44:44] Speaker 01:
How did the judge's instruction on 404B differ from what you all had proposed it should be?

[00:44:49] Speaker 06:
There was no specific proposal by the defense.

[00:44:55] Speaker 06:
And normally, there would be.

[00:44:57] Speaker 01:
But I think that... So you're going to have to clarify things for me.

[00:45:00] Speaker 01:
So you didn't have your own draft.

[00:45:02] Speaker 01:
And then you're telling me that if the judge had done what I thought your argument was, and that is sort of identify what this instruction applies to, what I mean by all this 404B evidence, you would have objected to that too.

[00:45:15] Speaker 01:
Is that what you said or did I mishear you?

[00:45:16] Speaker 06:
No, no.

[00:45:16] Speaker 06:
What I'm saying is, had we gone through the process of identifying the other crimes evidence, then we could have said, well, the income tax came in for this specific purpose.

[00:45:28] Speaker 06:
And whether it would have come in against all the defendants or not, I don't know the answer to that.

[00:45:32] Speaker 06:
The teenage drug dealing would have either come in or not come in for this particular reason.

[00:45:41] Speaker 06:
And the judge would have had to make, at that point at least, had made some findings that would have helped you decide whether there was any 403 balancing, because a lot of this stuff happened many, many years before.

[00:45:53] Speaker 06:
And as I'm trying to say, then they would have said, well, what about the testimony that Dion Oliver said, we got him in the trunk?

[00:46:04] Speaker 06:
And that gets interpreted as somebody's in the trunk when, of course, there's no evidence of that.

[00:46:07] Speaker 06:
Well, at least they could have started talking about that.

[00:46:10] Speaker 06:
They could have decided, well, is that intrinsic to the, if not, if it's not intrinsic and you let it in, what purpose did it come in for?

[00:46:20] Speaker 06:
The problem is there's no notice, there were no findings during the trial, and then when, at least if they'd gone through a proper instruction and they'd set everything out, we would have realized

[00:46:30] Speaker 06:
Oh, okay.

[00:46:31] Speaker 06:
Now we've got to talk about that piece of evidence and we have to talk about why that came in because they're not coming in for the same reason.

[00:46:36] Speaker 01:
And I just want to back up here.

[00:46:37] Speaker 01:
The proper instruction would have been categorizing these pieces of evidence and saying this category could be used for this and this category could be used for that.

[00:46:48] Speaker 06:
Yes.

[00:46:49] Speaker 06:
Yes, that's the way that the standard instruction is set up.

[00:46:53] Speaker 06:
Tell them what it is is ledge.

[00:46:55] Speaker 06:
Tell them they have to find it, because in some cases, it's not necessarily true that it happened.

[00:47:00] Speaker 06:
And then tell them what they can't use it for, but then what they can use it for.

[00:47:06] Speaker 06:
And so a lot of that stuff would have probably been jumped into categories.

[00:47:09] Speaker 06:
In other words, this would have been admissible to show.

[00:47:13] Speaker 06:
I don't know, motive perhaps.

[00:47:17] Speaker 06:
I mean, I'm just guessing because none of that discussions were held.

[00:47:21] Speaker 06:
We would have been objecting all along, but some of those objections clearly would have been overruled.

[00:47:25] Speaker 06:
But without that process, you know, how can one tell?

[00:47:30] Speaker 06:
I would, I've used more than my time.

[00:47:34] Speaker 06:
If I have a chance, I will talk about Arnold, sir.

[00:47:55] Speaker 12:
May it please the court, my name is Manuel Retireta.

[00:47:59] Speaker 12:
I represent in this case Mr. Franklin Seegers.

[00:48:02] Speaker 12:
I have two issues before the court and I ask that I reserve three minutes on those two issues.

[00:48:09] Speaker 12:
Issue of confrontation and then an issue of misconduct by the government council at closing.

[00:48:16] Speaker 12:
Very briefly, if I could begin with the confrontation issue.

[00:48:21] Speaker 12:
The issue arose from the introduction of autopsy and drug reports.

[00:48:28] Speaker 12:
a witness at the trial court that was not an overview but was someone who was not involved with the test.

[00:48:38] Speaker 12:
Importantly for Mr. Seegers, the government has conceded the two counts, the drug counts in his case should be reversed because there is insufficient evidence absent that evidence because of the confrontation violation.

[00:48:53] Speaker 12:
So those two counts, I ask the courts to reverse.

[00:48:56] Speaker 01:
I ask the courts also... I'm sorry.

[00:48:58] Speaker 01:
I just wanted to clear one thing.

[00:48:59] Speaker 01:
Does reversing those substantive counts affect his RICO conviction too or not?

[00:49:04] Speaker 12:
We would argue yes.

[00:49:05] Speaker 12:
It affects the RICO, I think it may affect because of the acts.

[00:49:09] Speaker 01:
Predicate acts?

[00:49:10] Speaker 12:
Yes, yes.

[00:49:11] Speaker 12:
I believe it does.

[00:49:11] Speaker 12:
And then we also would take it one step further, saying that it does affect the evaluation of the sufficiency for the narcotics conspiracy.

[00:49:18] Speaker 12:
as the court addresses one of Mr. Seeger's sufficiency issues.

[00:49:26] Speaker 12:
But we would ask the courts also take an additional look to the other co-defendants who were

[00:49:34] Speaker 12:
who had these issues, Ronald Alford, James Alford, other defendants, all defendants who had to deal with the narcotics evidence coming in to support the narcotics conspiracy or RICO conspiracy.

[00:49:51] Speaker 12:
But that's as far as I would go with that.

[00:49:54] Speaker 12:
If there are any other questions on that, I can move on to the next issue with the court's permission.

[00:50:03] Speaker 09:
On the three-third autopsy, the argument there is that, admitting this in proper evidence,

[00:50:16] Speaker 09:
so reinforced, I guess it's Hunter's credibility, that even though the jury rejects or at least can't agree on the murder that's actually involved, it could plausibly be thought to account for the conviction on another count depended on Hunter's testimony.

[00:50:41] Speaker 09:
I guess the way I'm phrasing it, I'm conveying the thought that it sounds like a stretch

[00:50:46] Speaker 12:
Well, the verdict was interesting because the jury could not decide whether or not Mr. Seegers killed Ms.

[00:50:56] Speaker 12:
Luther, but yet convicted him of the assault with intent to kill, to murder, of Lincoln Hunter.

[00:51:08] Speaker 12:
I think it did support the government case at the trial court.

[00:51:13] Speaker 12:
I think it was

[00:51:15] Speaker 12:
Something had it not been there, there would not have been issues of how the murder took place, placement of the body, shots, proximity to the attack or the victimization of Mr. Lincoln Hunter.

[00:51:29] Speaker 12:
So I think it's a factor to play into the sufficiency again with the case on Mr. Seegers.

[00:51:38] Speaker 09:
But it's basically through the credibility

[00:51:41] Speaker 09:
the shift in jury assessment of credibility, right?

[00:51:48] Speaker 12:
Because that witness came in and supported the government theory.

[00:51:51] Speaker 12:
Yes.

[00:51:51] Speaker 12:
Yes.

[00:51:52] Speaker 12:
Yes.

[00:51:53] Speaker 12:
Yes.

[00:51:56] Speaker 12:
I may please the court at the end of approximately six months worth of trial, government counsel at the district court began closings.

[00:52:07] Speaker 12:
the initial closing argument, and rebuttal to defense closing argument.

[00:52:13] Speaker 12:
In the midst of that, government counsel identified something called a playbook.

[00:52:19] Speaker 12:
In the identification of a playbook, the quote from government trial counsel was that, I'm going to use as a guide how a number of defendants and defense attorneys took advantage of the playbook

[00:52:36] Speaker 12:
on how to put together a false defense.

[00:52:40] Speaker 12:
At the close of those six months, the very last argument that Mr. Seegers and the co-defendants heard and the jury heard was that essentially, ladies and gentlemen of the jury, these folks have concocted a false defense.

[00:53:00] Speaker 12:
These officers of the court have committed a fraud upon the court.

[00:53:07] Speaker 12:
Now, that theme, those words, playbook, script, chapter, were used throughout the government rebuttal.

[00:53:20] Speaker 12:
At no time during that argument did the district court take a moment to say, ladies and gentlemen, that's just argument.

[00:53:32] Speaker 12:
Mr. Government counsel, don't do that.

[00:53:36] Speaker 12:
I don't want you using the word false.

[00:53:40] Speaker 12:
At the end of that argument, there was not an instruction by the district court to say whatever you heard here, again, is argument.

[00:53:49] Speaker 12:
And what he has said about false defense, about scripts, playbooks, you should not take into consideration.

[00:53:57] Speaker 12:
When the district court ran through final instructions, there was not a single mention of what is now clearly

[00:54:06] Speaker 12:
misconduct.

[00:54:08] Speaker 12:
To the credit of government appellate counsel, this was identified as improper.

[00:54:14] Speaker 12:
This was identified at the very least as being ill-advised, and this was labeled as not being based on fact.

[00:54:22] Speaker 05:
Just so I understand, this argument, what it's saying is what's ill-advised and what's objectionable from your perspective is that the

[00:54:32] Speaker 05:
counsel's arguments suggested that the defense witnesses and people who were cross-examined in fact knew about the playbook and were taking cues from the playbook.

[00:54:43] Speaker 05:
Not that, I mean suppose government counsel had said at the outset, I'm going to talk to you about this playbook.

[00:54:49] Speaker 05:
I'm not making the argument that anybody actually saw this playbook.

[00:54:52] Speaker 05:
I'm only using it to illustrate the source of things that people would do

[00:54:57] Speaker 05:
if they wanted to come forward with attempted defense in these circumstances, albeit one that I think is unpersuasive.

[00:55:04] Speaker 05:
I'm not suggesting they actually saw it, but I'm using this rubric to describe the various ways in which their witnesses and their cross-examinations fall short.

[00:55:13] Speaker 05:
If that were the way the argument had proceeded, you wouldn't have the same

[00:55:18] Speaker 05:
forceful submission that you're putting forth today.

[00:55:22] Speaker 05:
What you're really objecting to is the suggestion that the witnesses, in fact, took their cues from that plate.

[00:55:30] Speaker 12:
Yes.

[00:55:32] Speaker 12:
Would it have reduced how bad it was?

[00:55:39] Speaker 12:
Sure.

[00:55:40] Speaker 12:
Would it have gotten the government out of the woods on what they did?

[00:55:46] Speaker 12:
No.

[00:55:49] Speaker 12:
Would the judge have instructed the jury because there was improper argument?

[00:55:59] Speaker 12:
The district court should have.

[00:56:01] Speaker 12:
I don't think it gets him out of the woods.

[00:56:04] Speaker 00:
Why is that?

[00:56:04] Speaker 00:
Why specifically isn't that out of the woods?

[00:56:08] Speaker 12:
Because he called trial counsel frauds.

[00:56:14] Speaker 12:
It would be equivalent to defense attorneys just saying, everybody at that table, they're lying.

[00:56:20] Speaker 12:
They're lying to you, and not only that, they're cooking up stories.

[00:56:25] Speaker 12:
Now listen, I'm just arguing, but let me tell you about something else.

[00:56:29] Speaker 12:
I mean, it's outrageous conduct.

[00:56:33] Speaker 12:
Looking back on this and reading this is incredible to see how a mention of a playbook, how the reference to chapters, how the links to a script,

[00:56:49] Speaker 12:
not only affected Ronald Alford because the government council sought to link that witness, Patrick Andrews, to the playbook, but it was amazing how it just permeated through James Alford, McGill, Simmons, and Mr. Segers.

[00:57:12] Speaker 12:
Mr. Segers, who, as we look at the more factors, he's a poster child for the closeness in this case.

[00:57:20] Speaker 12:
Jury can't decide on a murder.

[00:57:23] Speaker 12:
They were running through every single event of this case saying he killed so and so, they killed this, they did that.

[00:57:31] Speaker 12:
They got to Mr. Seegers and said, wait a minute, we're going to have to think about this.

[00:57:36] Speaker 12:
Six weeks passed before they issued a verdict on Mr. Seegers.

[00:57:42] Speaker 12:
So as we look at the more factors, as they relate to this, it's interesting because this court and some of the recent authority that we've presented to the court, we can kind of bounce back and forth and see, I think we've got some good factors.

[00:57:58] Speaker 12:
Is it close?

[00:58:00] Speaker 12:
Is it central?

[00:58:01] Speaker 12:
Shoot, officer of the court is being called a fraud.

[00:58:05] Speaker 12:
And was there any mitigation done?

[00:58:08] Speaker 12:
The Walker case that we just provided, I haven't found an instruction that was provided by the court.

[00:58:15] Speaker 12:
It was merely an analysis of, is this so bad?

[00:58:18] Speaker 12:
I think we've got a good bunch of factors.

[00:58:22] Speaker 12:
Did the district court fix it?

[00:58:24] Speaker 12:
District court didn't fix it.

[00:58:27] Speaker 01:
So... Isn't it more than that?

[00:58:29] Speaker 01:
The district court, by denying objections, makes it worse?

[00:58:33] Speaker 12:
Yeah, I'm sorry.

[00:58:34] Speaker 01:
Isn't it more than absence of an instruction, but by repeatedly denying objections, the district court makes it worse?

[00:58:40] Speaker 01:
Excuse me, frog in my throat.

[00:58:41] Speaker 12:
The defense counsel identified it.

[00:58:43] Speaker 12:
That's what's interesting.

[00:58:44] Speaker 12:
The defense counsel showed it to the district court.

[00:58:47] Speaker 12:
The defense counsel said, wait a minute, we can see what's happening here.

[00:58:51] Speaker 12:
We can see that there's a mention of a playbook.

[00:58:54] Speaker 12:
We can see that we've heard the word false.

[00:58:57] Speaker 12:
counsel for McGill, counsel for Segers, counsel for the Alphords.

[00:59:02] Speaker 12:
Everybody popped up and said, Judge, I think we have a problem here.

[00:59:06] Speaker 05:
So do you, I'm I guess a little bit surprised that your focus seems to be on the allegations vis-a-vis counsel.

[00:59:16] Speaker 05:
that the argument, I know you put that in your brief and I completely take the point that casting aspersions at opposing counsel presents an issue, but you haven't talked about the extent to which the arguments go to the substantive testimony of the witnesses.

[00:59:34] Speaker 05:
Because I thought from your brief your principal point was that

[00:59:37] Speaker 05:
The problem here is that it made it look like these witnesses got their cues from this playbook, but they never actually saw the playbook, and nobody ever suggested they had seen the playbook.

[00:59:48] Speaker 05:
But prosecution's argument made it seem as if they in fact were taking these cues

[00:59:53] Speaker 05:
their cues from a playbook that they in fact had never seen.

[00:59:55] Speaker 12:
I think I'm going for the biggest bang for the buck.

[00:59:58] Speaker 12:
And the buck being the amount of time.

[01:00:00] Speaker 12:
But you're absolutely right.

[01:00:01] Speaker 12:
I think the genesis is that.

[01:00:04] Speaker 12:
As you look at this issue, you begin to realize, boy oh boy, he's calling out this playbook, and he's telling the ladies and gentlemen of the jury, hey, maybe defendant Oliver was doing this, or defendant Alfred was doing this, and look at the witness that this defendant brought up.

[01:00:22] Speaker 12:
And you can't believe them because it's anybody but them, chapter so-and-so.

[01:00:26] Speaker 12:
It's trying to dirty up the witness chapter so-and-so.

[01:00:32] Speaker 12:
But in preparation for today and in consultation with co-counsel, it just gets worse and worse and it's more objectionable each time I look at that language and realize that what the jury was hearing was

[01:00:51] Speaker 12:
These defendants are bad, but guess what?

[01:00:56] Speaker 12:
You can't even trust these officers at the court.

[01:01:01] Speaker 12:
That, I think, is what really pushes this over the edge.

[01:01:04] Speaker 12:
The other thing is it's already on the other side.

[01:01:07] Speaker 09:
I guess, I mean, as you can see, the objectionable character of puning the integrity of fellow counsel.

[01:01:16] Speaker 09:
But in terms of probable impact on the jury,

[01:01:20] Speaker 09:
The jury cares that much?

[01:01:23] Speaker 09:
Maybe it does.

[01:01:24] Speaker 09:
Is there any reason to think the jury is particularly interested in the integrity of counsel?

[01:01:38] Speaker 12:
Well, the Sixth Circuit thought so.

[01:01:42] Speaker 12:
Merriwether?

[01:01:45] Speaker 12:
No.

[01:01:45] Speaker 12:
The gum case.

[01:01:49] Speaker 12:
Certainly this court thought so, because when it was addressed in Moore, there was language about, well, look, this was said, it's not good.

[01:02:00] Speaker 12:
Let's not do this again, government counsel.

[01:02:03] Speaker 12:
Let's not talk about what the jury may be feeling.

[01:02:06] Speaker 12:
Let's not have language like, you know, Mr. Doe is walking down the street, and that's the last time he's going to be walking down that street.

[01:02:14] Speaker 12:
But then they said, look, it was opening argument.

[01:02:18] Speaker 12:
It was kind of,

[01:02:20] Speaker 12:
forgotten addressing Judge Williams, your concern.

[01:02:25] Speaker 12:
Maybe the jury is not too focused in on that.

[01:02:28] Speaker 12:
It was mitigated.

[01:02:31] Speaker 12:
This is the worst of the worst.

[01:02:34] Speaker 12:
And this is something that is kind of set out on its own.

[01:02:36] Speaker 12:
This is at the very end of six months.

[01:02:40] Speaker 12:
Whatever Dan Sparks was speaking about at the very beginning of the case, maybe it got fuzzy.

[01:02:44] Speaker 12:
But this is at the very end of the trial.

[01:02:47] Speaker 12:
It's the last word from an advocate that that jury heard.

[01:02:52] Speaker 01:
I'm curious.

[01:02:53] Speaker 01:
It would seem to me that the Sixth Amendment tells us that we have to assume the process, including jurors, cares about the capacity of a defendant to fairly put on and have considered a defense.

[01:03:08] Speaker 01:
And so how does this step on the Sixth Amendment right to present a defense?

[01:03:14] Speaker 12:
It crushes it.

[01:03:16] Speaker 12:
It crushes it.

[01:03:17] Speaker 01:
I mean, the simple thing would... You seem to be going into sort of a fact-specific view of why should we think juries were affected by this?

[01:03:24] Speaker 01:
Why would they care?

[01:03:25] Speaker 01:
I guess my starting point presumption is the Sixth Amendment tells us that.

[01:03:31] Speaker 12:
Yeah.

[01:03:31] Speaker 12:
It crushes it because we know what should have happened.

[01:03:36] Speaker 12:
We can see something and see it's bad.

[01:03:40] Speaker 12:
And we know the next step is, well, what should have happened?

[01:03:43] Speaker 12:
We gave the district court what it needed.

[01:03:48] Speaker 12:
Just tell them.

[01:03:49] Speaker 12:
Just tell them, hey, look, government councils spoke a lot about this.

[01:03:53] Speaker 12:
That's not anything you should worry about.

[01:03:55] Speaker 12:
If that would have happened, I would be sitting down.

[01:03:59] Speaker 12:
Thank you, Your Honor.

[01:04:01] Speaker 12:
Interesting issue.

[01:04:03] Speaker 12:
And I would think to myself, well, it may just go down the path of USB more.

[01:04:08] Speaker 12:
But that didn't happen.

[01:04:09] Speaker 12:
That jury went back into the deliberation room and thought, wow, maybe Oliver was lying.

[01:04:18] Speaker 12:
Maybe the witness that Franklin Seeger put up, Moye, was putting up a script.

[01:04:24] Speaker 12:
And maybe John Norris, Franklin Seeger's counsel at that moment in time, was kind of involved in that.

[01:04:31] Speaker 05:
So as to each of those specific instances, it seems like the question under our cases is, if you think that there's a problem with the way that counsel described the playbook and suggested that those individuals in fact had taken their script idea from the playbook which laid out the way to do this, then the question is, does the prejudicial impact of that suggestion

[01:04:56] Speaker 05:
add materially to the presentation that was already made with respect to the deficiencies of the testimony.

[01:05:03] Speaker 05:
Because I think, for example, in North, there was also a claim made that the prosecution made a false representation of fact in its argument.

[01:05:12] Speaker 05:
But then what the court said was, well, that didn't really add that much, because there was already evidence out there.

[01:05:18] Speaker 05:
Can you comment on what it materially added, given that with respect to most of the specific instances that I saw at least, when the prosecution's argument vis-a-vis the playbook sought to cast doubt on a particular witness's testimony, there was also independent

[01:05:32] Speaker 05:
Submissions put forth during the course of the proceedings that already cast out on that individual's testimony.

[01:05:37] Speaker 12:
Well with with Segers you had Moyek who brought in the previous statement the trial counsel had Presented to him and that dealt with whether or not mr. Segers had dealt with drug distribution in the past so so

[01:05:58] Speaker 12:
pointing that out, linking that piece of evidence and that testimony together with a defense counsel that maybe concocted it and presented it, wow, that's a big hit for a juror sitting back saying, how much weight do I give that?

[01:06:16] Speaker 12:
because that kind of links, that kind of helps me decide whether or not Franklin Seekers is going to be in a narcotics conspiracy or whether he's going to be part of a RICO conspiracy, whether we make that part of the act.

[01:06:29] Speaker 09:
As far as counsel are concerned, your focus, I think from what you just said, is on the reputed coordination role.

[01:06:40] Speaker 09:
that the playbook suggests they carried out.

[01:06:46] Speaker 09:
There were a bunch of defendants with disparate interests and so forth.

[01:06:51] Speaker 09:
Yeah, everybody's colluding.

[01:06:53] Speaker 12:
I agree, everybody's colluding.

[01:06:58] Speaker 12:
And the worst part of that is it's not just collusion with a bunch of defendants who the government could argue dangerous.

[01:07:08] Speaker 12:
violence, drugs on the street.

[01:07:11] Speaker 12:
That's one thing.

[01:07:13] Speaker 12:
It's collusion between clients, who the government labeled as those people, and defense attorneys.

[01:07:22] Speaker 12:
And that presentation to the court, where the jury spent six months of their lives listening and trying to figure out how to decide the case.

[01:07:34] Speaker 12:
I've run over incredible.

[01:07:36] Speaker 12:
But I thank the court.

[01:07:37] Speaker 12:
Thank you.

[01:07:54] Speaker 04:
May it please the court, Leslie Ann Gerardo on behalf of the United States.

[01:07:58] Speaker 04:
Starting first with the issue about the removal of juror number nine, this court indicated in Ginyard that the animating principle in Brown was whether or not the request to remove the juror stemmed from the juror's doubts about the evidence.

[01:08:13] Speaker 04:
That's not what happened here.

[01:08:14] Speaker 04:
This case is not governed by Brown.

[01:08:16] Speaker 04:
It's governed by Ginyard and it's governed by Carson.

[01:08:19] Speaker 04:
This juror was removed because the juror was refusing to deliberate and this juror was removed because the juror had engaged in misconduct.

[01:08:25] Speaker 01:
What do we do with the sequence of events which suggests that first there was a concern about someone not believing anything the government's witnesses said?

[01:08:34] Speaker 01:
I think it seemed to go in a pattern here, so it started with position, and then there's something that gets confusing just because of the, I guess, misarticulation of the jury note.

[01:08:46] Speaker 01:
It's not clear whether they were getting some unanimous decisions or not, and then some of the jurors seem to be disbelieving.

[01:08:53] Speaker 01:
all the evidence in the case, not accepting it, not dealing with it, but not accepting it.

[01:08:59] Speaker 01:
And then after we've gone through this, we get the deliberations issue.

[01:09:03] Speaker 01:
And after that, that's when these notes come in and come in and come in and the jurors still in the room with them, then someone goes, aha, misconduct, but I'm the only one that saw it.

[01:09:17] Speaker 01:
Doesn't that influence raise the question about the basis for removal, which requires us then to be behind a reasonable doubt standard?

[01:09:25] Speaker 04:
I don't believe so, Your Honor.

[01:09:27] Speaker 04:
I think what's important to keep in mind here is actually Judge Lambert exercised his discretion, I think masterfully.

[01:09:34] Speaker 04:
He did not respond to the first note by conducting any kind of inquiry.

[01:09:38] Speaker 04:
He told the jury, continue to deliberate.

[01:09:40] Speaker 04:
Same thing with the second note.

[01:09:42] Speaker 04:
Same thing with the third note.

[01:09:43] Speaker 04:
It's not until April 14th when you get these two notes, the more important of which I think is the note indicating that this allegation was conduct.

[01:09:51] Speaker 04:
And I just want to say I understand their sort of view of the evidence that Juror 12 somehow was ganging up on Juror 9.

[01:09:58] Speaker 04:
I just don't think that there's anything in the record that supports that beyond mayor conjecture.

[01:10:03] Speaker 04:
Juror 12 obviously was an alert juror.

[01:10:05] Speaker 04:
He had previously bought to the court's attention that there was a seating juror

[01:10:09] Speaker 04:
who was communicating with someone in the gallery, and that that person in the gallery had a connection with Ronald Alfred, that all proved to be correct.

[01:10:17] Speaker 04:
So against that backdrop, when Judge Lamberth gets this note that there is a juror who's writing something down surreptitiously, attempting to hide it, slipping it into his eyeglass case, and taking it out of the jury room, he has to conduct some sort of inquiry.

[01:10:31] Speaker 04:
This is an anonymous jury.

[01:10:33] Speaker 04:
This is a very high-profile case with very allegations of violence.

[01:10:37] Speaker 04:
There's a reason why this jury has been dropped off and delivered to the courthouse at different places each day to protect their anonymity.

[01:10:45] Speaker 01:
Do you think the evidence in this case was sufficient for a judge to decide that there was actually a security basis for removal of the moving of this juror?

[01:10:52] Speaker 01:
I'm not suggesting that.

[01:10:54] Speaker 01:
So there wasn't enough.

[01:10:56] Speaker 01:
That just wasn't a basis for removal.

[01:10:58] Speaker 01:
There wasn't enough in the record for that.

[01:11:02] Speaker 01:
I think that there might have been.

[01:11:04] Speaker 04:
I mean, we just don't know what the juror was doing.

[01:11:05] Speaker 04:
No, there's no finding of that.

[01:11:06] Speaker 04:
Well, I mean... The court found by preponderance that he did not believe that the juror was taking a grocery list out.

[01:11:14] Speaker 04:
He wrote something.

[01:11:15] Speaker 04:
He did not find... He couldn't make a finding as to what it was.

[01:11:18] Speaker 01:
Right.

[01:11:18] Speaker 04:
But it certainly raised concerns in the minds of the other jurors.

[01:11:22] Speaker 04:
We don't know anything about the minds of the other jurors.

[01:11:24] Speaker 04:
But you know that Juror 10, who was the fourth person, felt concerned and said when he was interviewed before our dear that the jury was concerned about this juror.

[01:11:33] Speaker 01:
They didn't know what he was doing.

[01:11:35] Speaker 01:
And I think that's where I get back to my question about it seemed to meld into, first of all, Jerry Ten didn't see the removal of the papers, and so the concern was not a security one there, it all seemed to be, you know, once I hear about this thing from somebody else, I didn't see it.

[01:11:51] Speaker 01:
I add to that all my feelings about this person sitting in the back of the room and not joining us at the table going through the evidence.

[01:12:01] Speaker 01:
But I would think that we would be ill-positioned to say those types of things, even in a case like this, are enough to have security or safety be the basis for remittal.

[01:12:14] Speaker 04:
Again, against the backdrop of this case, the earlier issue with the juror who was potentially being influenced

[01:12:20] Speaker 04:
I think that there is an implication of that, but I don't think the court needs to go that far.

[01:12:25] Speaker 04:
I think there was an — Well, the district court didn't go — made no such finding.

[01:12:29] Speaker 04:
Right.

[01:12:29] Speaker 04:
He didn't make that finding.

[01:12:31] Speaker 04:
The council keeps pointing out that there was no — What was the district judge referring to then?

[01:12:34] Speaker 05:
Because he did say the security procedures that are in place in this trial and the nature of the charges have been fully developed.

[01:12:39] Speaker 05:
On the record, needless to say, the safety and security of the jurors are matters that are of utmost importance in this case.

[01:12:44] Speaker 05:
Additionally, safety and security of the jurors are necessary to ensure each individual's, each defendant's right to a fair trial.

[01:12:49] Speaker 05:
So he's talking about security on the court's order.

[01:12:51] Speaker 04:
He's talking about the anonymity.

[01:12:52] Speaker 04:
This is an anonymous.

[01:12:53] Speaker 04:
That's how I read it.

[01:12:54] Speaker 04:
He's talking about that this is an anonymous jury.

[01:12:56] Speaker 04:
And without knowing what this person is taking out of the jury room, what he may be writing down,

[01:13:02] Speaker 04:
it's hard to know whether or not he's attempting to compromise the anonymity of the jury.

[01:13:08] Speaker 04:
And I think that was part of Judge Lambert's concern here.

[01:13:10] Speaker 01:
I guess what I'm wondering here is, I mean, it did strike me as odd.

[01:13:14] Speaker 01:
He sort of has that paragraph in there, but actually it doesn't make a finding.

[01:13:17] Speaker 01:
If he had made a fact finding, he found it wasn't a grocery list, but didn't actually make a fact finding that the content did actually present any security or safety threat.

[01:13:29] Speaker 01:
And so that's why, given the very rigorous standard of inquiry that's imposed on district courts here, I just don't know what to make of the absence of any finding as to two things.

[01:13:44] Speaker 01:
And so what was actually on that paper?

[01:13:48] Speaker 01:
that it was, or a fact finding, even if he couldn't figure out what was on the paper, that the jury was feeling, the jury as a whole was feeling a genuine lack of safety, or there was a genuine safety risk.

[01:14:01] Speaker 01:
There's no fact finding about that.

[01:14:03] Speaker 01:
I understand.

[01:14:05] Speaker 01:
What do we do with that?

[01:14:05] Speaker 04:
Yeah, I would say, Your Honor, that the real motivation here, though, is I don't think it has to turn on whether or not there's a finding that the jury as a whole felt unsafe or insecure.

[01:14:15] Speaker 04:
There was misconduct.

[01:14:16] Speaker 04:
There was instructions to the jury not to remove their notes.

[01:14:19] Speaker 04:
Where is that instruction on the record?

[01:14:21] Speaker 04:
No one contested at the point that Judge Lambert said.

[01:14:24] Speaker 04:
The marshals have given clear instructions to them not to remove materials.

[01:14:28] Speaker 04:
The jurors themselves

[01:14:29] Speaker 04:
represented.

[01:14:30] Speaker 04:
Juror 10 said this is in contravention to what we've been clearly told.

[01:14:33] Speaker 04:
You can't take anything out of the jury room.

[01:14:35] Speaker 01:
Another thing that confuses me about the case is they said your instructions and I have not been able to find any instructions.

[01:14:42] Speaker 04:
It's not in the record but no one challenged below that they had in fact been told by the marshals you cannot remove anything from the jury room.

[01:14:49] Speaker 04:
Anything that those were the terms?

[01:14:51] Speaker 01:
You can't remove your notes or your evidence.

[01:14:52] Speaker 01:
It seems to me the terms of what that instruction was.

[01:14:55] Speaker 04:
I'm sorry?

[01:14:55] Speaker 04:
What had happened was earlier on, the jury had been instructed by Judge Lambert that you cannot remove your notes.

[01:15:00] Speaker 04:
They have to be sealed every night.

[01:15:01] Speaker 01:
I believe I cited that.

[01:15:03] Speaker 01:
Where did he say carry?

[01:15:04] Speaker 01:
I know he said seal your notebook at night, but where does it say you can't take any papers out?

[01:15:08] Speaker 01:
Which is different, because if this aren't his notes of deliberation, that destruction wouldn't apply.

[01:15:13] Speaker 04:
He later puts on the record that the marshals have given them instructions.

[01:15:17] Speaker 04:
Once the evidence goes in the room, they can't take anything out.

[01:15:20] Speaker 04:
And the evidence... Any evidence out?

[01:15:22] Speaker 04:
No, they can't take anything out.

[01:15:24] Speaker 04:
I think that's exactly what he said, and I can... Yeah, that would be helpful, I guess.

[01:15:28] Speaker 01:
I don't find that in its findings.

[01:15:30] Speaker 01:
All I see is a violation of the court's instructions to the juries.

[01:15:35] Speaker 01:
They must not remove anything from the jury room, but I just haven't seen that anywhere in the actual instructions given to the jury.

[01:15:42] Speaker 04:
It's not in the instructions.

[01:15:44] Speaker 04:
It's what the marshals told the jury, and the judge indicated on the record.

[01:15:47] Speaker 04:
This is part of the standard instructions that the marshals

[01:15:50] Speaker 04:
give to deliberating juries.

[01:15:52] Speaker 04:
No one challenged that.

[01:15:53] Speaker 04:
Where's that on the record?

[01:15:54] Speaker 01:
So if there was a question about what that instruction was or what exactly this said, that's on the... I thought they challenged it and then they asked to bring the marshal out to find out what exactly... They wanted him to inquire about the marshal.

[01:16:03] Speaker 04:
Not on this point.

[01:16:04] Speaker 04:
What they wanted to ask the marshal about was the conversation that he had with the juror at the van when the juror had indicated that there was this allegation of note-taking.

[01:16:14] Speaker 04:
I mean, the defense, I think, has not done a very good job of sort of clearly breaking out everything that happened.

[01:16:20] Speaker 04:
A lot of things are sort of lumped together.

[01:16:22] Speaker 01:
So if you can just help me then, because it's been a big record, and I've probably just missed one other page.

[01:16:27] Speaker 01:
Where exactly is the specific words of what the marshal said?

[01:16:31] Speaker 04:
If the court looks at the joint appendix pages 1824 and then 5554 and 5555,

[01:16:44] Speaker 04:
1824 is where the jury instructed that the notes would be sealed.

[01:16:49] Speaker 09:
The judge stating what the marshals.

[01:16:53] Speaker 01:
That's it, 5554.

[01:16:54] Speaker 09:
The regular matters say.

[01:16:58] Speaker 01:
Right.

[01:16:59] Speaker 01:
I'm sorry.

[01:17:00] Speaker 01:
Tell me what you're looking at.

[01:17:01] Speaker 01:
I'm 5554 and 5555.

[01:17:02] Speaker 01:
5554 and 5555 are where the court.

[01:17:05] Speaker 04:
Yeah, what's the language?

[01:17:07] Speaker 04:
Explains.

[01:17:08] Speaker 04:
I unfortunately did not quote the language, and I don't have it in front of me, Your Honor.

[01:17:12] Speaker 04:
But that's where the court's explaining that this is the standard instructions that the marshals give.

[01:17:18] Speaker 01:
Yeah, it seems very casual.

[01:17:19] Speaker 01:
He said, don't take anything out of the room once they have evidence in the room.

[01:17:23] Speaker 04:
I think that's actually quite specific.

[01:17:25] Speaker 04:
Don't take anything out of the room.

[01:17:27] Speaker 04:
And this juror undeniably took something out.

[01:17:28] Speaker 01:
But then didn't this judge also say, didn't he also say, well, if he's just taking out a personal note, that would be fine, that that wouldn't violate this instruction?

[01:17:37] Speaker 01:
I think it wouldn't... The judge said that.

[01:17:38] Speaker 01:
He did say that.

[01:17:39] Speaker 01:
He did say that.

[01:17:40] Speaker 01:
So he didn't mean don't take anything out of the room.

[01:17:42] Speaker 01:
He's agreed that his instructions didn't prohibit taking out personal papers.

[01:17:48] Speaker 01:
So that's why I'm confused about this.

[01:17:49] Speaker 04:
I think the instruction is not to take anything out, but the judge has indicated if he did take out a grocery list, I wouldn't be concerned.

[01:17:55] Speaker 04:
But the judge... Not a grocery list, personal papers.

[01:17:58] Speaker 04:
But the judge doesn't know what he took out here.

[01:18:00] Speaker 04:
And I think that that's a question of concern with an anonymous jury without being able to say what this juror was doing.

[01:18:06] Speaker 04:
And I do think it justified his removal.

[01:18:09] Speaker 04:
But separate and apart from that,

[01:18:11] Speaker 04:
The importance of the April 14th note is whether or not ultimately the note-taking incident is sufficient to support the jurors' removal.

[01:18:19] Speaker 04:
It definitely was sufficient to support the opening of some sort of inquiry because the court needed to find out what was happening, what was being taken out.

[01:18:26] Speaker 05:
But part of the reason why the questions about security seem germane to me are that if there's a question about taking things out, let's suppose there is an instruction or everybody's operating on the instruction that you're not supposed to take, at least this sort of

[01:18:38] Speaker 05:
what's alleged to be the sort of item out, then there are less restrictive alternatives to dismissal that at least could be explored.

[01:18:47] Speaker 05:
And now if there's a security issue, I can see why maybe

[01:18:52] Speaker 05:
dismissal comes more quickly to the fore.

[01:18:55] Speaker 05:
But if you put that out of the field of vision, then it seems like it immediately raises the question, why not think about some other sort of sanction short of dismissal?

[01:19:05] Speaker 05:
If the question is you're taking some things out of the room that you shouldn't take out, well, issue an instruction that reinforces the command that you're not supposed to do that.

[01:19:14] Speaker 04:
That might be appropriate if you didn't have testimony here from the jury, from Juror 10, the foreperson, that the jury felt uncomfortable about this jury and didn't know what he was doing.

[01:19:23] Speaker 04:
I believe he said, this is not what we're here for and we're not supposed to be taking things out of the jury room.

[01:19:27] Speaker 04:
We don't know what he's doing.

[01:19:29] Speaker 04:
So you have

[01:19:30] Speaker 04:
Now the deliberative process has been impeded because this juror has put the other jurors on edge.

[01:19:36] Speaker 01:
Judge's finding is only about how that affected Juror 10.

[01:19:39] Speaker 01:
I don't see any, again point me if I'm wrong, I see no finding that the jury as a whole felt

[01:19:45] Speaker 01:
Any security risk or lack of safety?

[01:19:47] Speaker 04:
Not in the finding, but it was certainly within the context of what Juror 10 said.

[01:19:52] Speaker 01:
Well, but what are we, I mean, are we supposed to make that fact-finding or that inference when the judge didn't?

[01:19:56] Speaker 01:
What am I supposed to do with that?

[01:19:57] Speaker 04:
I think even if the Court finds that Juror 10 feels uncomfortable and Juror 10 is the for-person, that's significant.

[01:20:03] Speaker 04:
That's a significant fact.

[01:20:05] Speaker 01:
Or maybe it's significant that he only found it as Juror 10 and did not actually find that this could be imputed to anybody else, at least without inquiring of those other jurors.

[01:20:13] Speaker 04:
The reason you didn't inquire of the other jurors, and I just want to touch on that, when this issue came up, the defense as a whole were against the judge doing any sort of inquiry.

[01:20:23] Speaker 04:
He did the inquiry of jurors 9, 10, and 12.

[01:20:26] Speaker 04:
They broke.

[01:20:27] Speaker 04:
After the break, the parties reassembled and had a discussion on the record about what all this meant.

[01:20:32] Speaker 04:
At no point during that discussion, that afternoon, after 9, 10, and 12,

[01:20:36] Speaker 04:
have been war-deared.

[01:20:38] Speaker 04:
Did anyone ask for the remaining jurors to be war-deared?

[01:20:41] Speaker 05:
And this is pre-dismissal?

[01:20:42] Speaker 05:
This is pre-dismissal.

[01:20:44] Speaker 01:
So they have to ask her, are there independent obligations on a judge with our requirement of searching and careful inquiry?

[01:20:53] Speaker 04:
I think that that is a discretionary call on the part of the court.

[01:20:57] Speaker 04:
And here, the court's trying to balance two things.

[01:20:59] Speaker 04:
He's trying to do a sufficiently searching inquiry to satisfy himself as to what the facts are.

[01:21:03] Speaker 04:
Because ultimately, it's a factual finding that he has to make to support his discretionary decision whether he's going to remove this jury.

[01:21:11] Speaker 04:
He's balancing that against not wanting to get into deliberations.

[01:21:15] Speaker 04:
And actually, the conversation that preceded the removal of jurors 9, 10, and 12, the defense attorneys were all against any kind of inquiry because they didn't want the court to invade deliberations.

[01:21:26] Speaker 04:
So I think Judge Lamperth was really, and again, I believe his handling of this incident was masterful.

[01:21:32] Speaker 04:
He was trying to get enough information to satisfy himself as to what was going on without delving too deeply into the jurors' deliberations, which you can't do under Brown.

[01:21:40] Speaker 01:
So I guess I just to tell you where I'm sort of concerned, and that is that since we don't have the finding that we had to do this for safety and security, what we have is, I think what the judge himself through his own comments recognized was at least some ambiguity as to what the instruction was.

[01:21:59] Speaker 01:
to the jurors.

[01:22:00] Speaker 01:
Don't take anything well.

[01:22:01] Speaker 01:
You can take personal things out.

[01:22:03] Speaker 01:
So there's some ambiguity.

[01:22:05] Speaker 01:
And we don't have a safety or security.

[01:22:06] Speaker 01:
We don't actually have a safety or security issue.

[01:22:08] Speaker 01:
We just don't have that finding that we can, as an appellate court, can rely on.

[01:22:14] Speaker 01:
What case would say that this is enough to remove a juror once we already know that juror appears to be at least a partial holdout on issues?

[01:22:24] Speaker 01:
without, on that basis, without having a warning, like Judge Frenovassin suggested.

[01:22:30] Speaker 01:
Why wouldn't you call the jury and let's be explicit about what you're supposed to do and not do when you're leaving the jury room, what you can take with you and what you can't take with you?

[01:22:39] Speaker 04:
The one thing I agree with my...

[01:22:41] Speaker 04:
colleagues about is that this is a unique case.

[01:22:43] Speaker 04:
There isn't a case directly on point, so I can't point you to anything.

[01:22:47] Speaker 04:
But I do think that the Court has to look at the overall context of this case and the way in which this issue developed, you know, the fact that there had been earlier issues with the jury.

[01:22:56] Speaker 01:
But why, yes, tell me, why, the test is necessary, right?

[01:22:59] Speaker 01:
Can we agree that it wasn't necessary to remove this juror?

[01:23:03] Speaker 04:
No, I think it's good cause.

[01:23:04] Speaker 04:
The standard under the rule is, is there good cause?

[01:23:06] Speaker 01:
Well, once we know someone's, the record's aware of someone's position, and we're in the deliberation, we're nine days into deliberations, regardless, we're nine days into deliberations.

[01:23:18] Speaker 01:
If we add in or leave out, I don't care, but the fact that this person also had been identified as a holdout, why isn't necessary the standard, and how is it necessary in this case?

[01:23:31] Speaker 04:
I just want to be clear, I understand you're on this question.

[01:23:34] Speaker 01:
Are you talking about the- I'm sorry, I'm doubling up on you.

[01:23:35] Speaker 01:
Let's just assume necessary is the test for my first question.

[01:23:38] Speaker 01:
Necessity is the test.

[01:23:40] Speaker 01:
If that's the test, just assume that, and then we'll go to whether it should be the test.

[01:23:43] Speaker 01:
But if that's the test, how is it necessary in this case to remove GER-9 rather than bring everybody in and instruct them on what not to remove and go forward with deliberation?

[01:23:55] Speaker 04:
Are we talking only on the note-taking issue?

[01:23:57] Speaker 04:
Necessary to remove.

[01:24:02] Speaker 04:
I think the fact that the jury had been instructed not to remove their notes from the outset, that notes would be sealed, that the marshal had given instructions to them that no one was contesting had been given, that they were not to remove anything, regardless of whether the court thinks there are some things you could remove that wouldn't bother me.

[01:24:19] Speaker 04:
What he said was that they were told not to remove anything.

[01:24:22] Speaker 04:
That I think it's his call.

[01:24:23] Speaker 04:
And I think here he had a sufficient... So is it necessary?

[01:24:25] Speaker 01:
What was it necessary?

[01:24:27] Speaker 01:
Why was it... Why does that meet... If I had to write an opinion, how would I explain that that would meet this very high standard under these circumstances of necessary... Because I think the fact that this jury removed something from the jury room

[01:24:38] Speaker 04:
And even one other juror was aware of it here, too, because ultimately the fourth person was aware as well.

[01:24:43] Speaker 04:
He was only aware because 12 reported it.

[01:24:45] Speaker 04:
But he became aware of it.

[01:24:48] Speaker 04:
I believe it taints the jury's deliberative process.

[01:24:50] Speaker 04:
They're now thinking about what that juror is doing as opposed to focusing on the evidence.

[01:24:54] Speaker 05:
Can I just add, so on this question of security, so if you introduce security into the mix, because the colloquy you've just been having takes security out of the mix,

[01:25:04] Speaker 05:
on assessing whether it's necessary to remove somebody.

[01:25:07] Speaker 05:
So it's not entirely clear what the judge was getting at, but he talks about the security procedures and the need for those security procedures in this case, and then says the safety and security jurors are necessary to ensure that each defendant's right to a fair trial and the security jurors of the utmost importance.

[01:25:26] Speaker 05:
And then it says,

[01:25:28] Speaker 05:
the court found by a preponderance of the evidence that Juror 9's misconduct constitutes an alternative and independent basis to remove him.

[01:25:35] Speaker 05:
So it seems like by using accordingly, I mean, we're splicing this as if it were a statute.

[01:25:42] Speaker 05:
I get that.

[01:25:43] Speaker 05:
But it seems like what the trial judge is saying is that security concerns feed into the decision whether to remove the juror.

[01:25:53] Speaker 05:
But as Judge Millett says,

[01:25:56] Speaker 05:
there were no findings about, specific findings about security concerns.

[01:26:00] Speaker 04:
I think he's implicitly, well, he explicitly credited Juror 10 and 12 over Juror 9.

[01:26:05] Speaker 04:
And in crediting Juror 10, you know, one of the things Juror 10 said,

[01:26:11] Speaker 04:
The concern for one is our safety.

[01:26:12] Speaker 04:
We don't know what he's doing.

[01:26:14] Speaker 04:
He's refused to participate.

[01:26:16] Speaker 04:
And the court says, well, why does that raise a safety concern?

[01:26:18] Speaker 04:
He's distant.

[01:26:19] Speaker 04:
He's been very distant.

[01:26:21] Speaker 04:
The court, the jurors says, feeling for the rest of the 10 jurors, they're very uneasy because they don't know what to expect from this individual.

[01:26:27] Speaker 04:
So there's this sense that this juror has put everyone else on edge.

[01:26:32] Speaker 04:
But that wasn't from the note-taking, right?

[01:26:34] Speaker 01:
Let's be clear.

[01:26:34] Speaker 01:
That is not from the note-taking.

[01:26:37] Speaker 01:
So that doesn't come into the misconduct.

[01:26:39] Speaker 01:
That's for the not deliberating in the way that they thought he should deliberate.

[01:26:44] Speaker 01:
I just want to be clear, because I want to make sure we're very careful.

[01:26:47] Speaker 01:
This is really important stuff, the jury and removing a juror in the midst of deliberations, that we're very careful about what we do and that we not sort of start making up connections that aren't in the record and aren't found by a judge who's right there on the scene.

[01:27:02] Speaker 04:
I understand, Your Honor.

[01:27:03] Speaker 04:
Juror number 10 also then speaks about it from his own personal perspective and said, you know, I didn't sleep too well last night.

[01:27:09] Speaker 04:
I said, we're here to do our job, and I don't know what he's writing on there.

[01:27:12] Speaker 04:
I don't know what it's all about.

[01:27:13] Speaker 04:
Personally, I don't.

[01:27:14] Speaker 04:
I'm disturbed.

[01:27:15] Speaker 04:
It's not characteristic.

[01:27:17] Speaker 04:
We have firm instructions not to remove any of the evidence or our notes.

[01:27:21] Speaker 04:
If he's taking notes and putting it in his eyeglass case, that's a problem.

[01:27:24] Speaker 04:
That's against the rules.

[01:27:25] Speaker 04:
That's not what we're supposed to do.

[01:27:27] Speaker 04:
That's not what we're here for.

[01:27:28] Speaker 04:
This juror, at least, and he is the fourth person, is clearly disturbed by what has happened.

[01:27:34] Speaker 04:
So is it necessary now to remove this juror?

[01:27:36] Speaker 04:
I would say it is.

[01:27:37] Speaker 01:
Without asking the other jurors.

[01:27:38] Speaker 04:
Because this is now a diversion.

[01:27:39] Speaker 04:
It is something that's diverting the jury from their task of focusing on the evidence.

[01:27:42] Speaker 01:
But that's not because none of the other jurors know about the note-taking.

[01:27:46] Speaker 01:
That's my concern, is that there's no evidence that the other jurors have this distraction.

[01:27:52] Speaker 01:
12 and 10.

[01:27:53] Speaker 01:
12 didn't say trouble sleeping.

[01:27:54] Speaker 04:
But I would say even one juror, particularly the four person, feeling distracted in that way is a significant.

[01:27:59] Speaker 01:
If you weren't the four person, would it matter?

[01:28:02] Speaker 04:
I still think it would have been significant.

[01:28:03] Speaker 01:
So it doesn't matter that it's the four person.

[01:28:04] Speaker 01:
You've got one juror that feels this way.

[01:28:06] Speaker 01:
That has made another juror feel unsafe.

[01:28:08] Speaker 01:
And we don't need to ask whether the other jurors feel that way.

[01:28:10] Speaker 01:
Or if we actually take as given, because at least my understanding is there's no allegation that anyone else knew.

[01:28:16] Speaker 01:
So one juror feeling having trouble sleeping.

[01:28:22] Speaker 01:
I'm feeling unsure, uncertain about what's going on.

[01:28:27] Speaker 01:
Is sufficient for a safety risk under these circumstances?

[01:28:31] Speaker 04:
Not just a safety risk.

[01:28:33] Speaker 04:
Your question was, was it necessary?

[01:28:34] Speaker 04:
And I would say it's necessary because it is now interfered with the deliberative process.

[01:28:39] Speaker 04:
is now not able to focus on what he's supposed to focus on.

[01:28:42] Speaker 01:
Well, I think you're adding a little bit more now.

[01:28:43] Speaker 01:
I don't think he's saying he couldn't focus or that he couldn't continue deliberations.

[01:28:47] Speaker 04:
I think the Court could certainly infer that from the fact that he feels disturbed.

[01:28:50] Speaker 04:
This is now a distraction.

[01:28:52] Speaker 04:
But separate and apart from that, we do also have the deliberation issue.

[01:28:56] Speaker 04:
And so once I do think, regardless of whether the Court agrees or disagrees with us, and we do think it was appropriate to remove him for the note-taking alone,

[01:29:05] Speaker 04:
The note-taking incident did give a reason to at least conduct an inquiry here, and that was what triggered an inquiry.

[01:29:11] Speaker 05:
And in the course of that inquiry... Before you go on a deliberation, I know you're trying to go on to that, but can I just ask one last question about the alternate grounds, which goes again to the question of whether there was any obligation to interview additional jurors.

[01:29:23] Speaker 05:
So in the course of the voir dire of the three jurors, the judge, I think, asked a few times, does anyone else, is there any reason to think that anyone else knows about this?

[01:29:35] Speaker 05:
Now, and to which the response, I think, is generally no.

[01:29:39] Speaker 05:
And maybe that's what caused the judge to stop short of interviewing other jurors.

[01:29:44] Speaker 05:
But then it still raises the question, why not?

[01:29:48] Speaker 04:
Because... Because then you're introducing potentially something into the jury that they don't know.

[01:29:53] Speaker 04:
If you start asking questions about, did you see a juror do this and that?

[01:29:57] Speaker 04:
And then you only heighten the concern about jurors being distracted.

[01:30:01] Speaker 04:
So without any indication that any of the other jurors were aware, at least on this issue, I don't think it would have been appropriate to conduct any further inquiry of any other jurors.

[01:30:13] Speaker 04:
Moving on to the deliberation issue.

[01:30:17] Speaker 04:
Once the court opens the inquiry into the note-taking, Juror 10 spontaneously comes out with all this information about what Juror 9 was doing.

[01:30:26] Speaker 04:
He wasn't deliberating.

[01:30:27] Speaker 04:
He wasn't sitting at the table.

[01:30:29] Speaker 04:
Now, you have something that animates those earlier notes.

[01:30:32] Speaker 04:
And I just want to point out that from the beginning, even from the very first note, the prosecutor said, this looks like we might have a juror who's not deliberating because of the language of that note.

[01:30:42] Speaker 04:
And I'm not suggesting that it's clear.

[01:30:45] Speaker 04:
They were certainly ambiguous.

[01:30:47] Speaker 04:
But there's certainly a take on those early notes, the categorical position that the juror is expressing.

[01:30:52] Speaker 04:
that he won't look at any evidence, that he won't look at any evidence for the government or the defense, that this is maybe something more than a mere holdout.

[01:31:01] Speaker 04:
But that any ambiguity is swept away when Juror 10 is actually bordered, because he says, this juror has not been deliberating.

[01:31:08] Speaker 04:
He won't look at any evidence.

[01:31:10] Speaker 04:
He sits against the back wall.

[01:31:11] Speaker 04:
He says, I've made my decision from day one.

[01:31:15] Speaker 04:
That is a juror who has violated his oath, and that is also a jury that's... Why is that violating the oath?

[01:31:20] Speaker 01:
Why couldn't one walk out of this trial?

[01:31:23] Speaker 01:
and go a pox on both their houses.

[01:31:27] Speaker 01:
Every one of them, both sides, just paraded a bunch of people, not one of whom I can believe for two minutes.

[01:31:34] Speaker 01:
And so, I've got a beyond a reasonable doubt instruction here.

[01:31:37] Speaker 01:
I can't believe anything anybody is saying.

[01:31:40] Speaker 01:
I can't possibly get to beyond a reasonable doubt.

[01:31:44] Speaker 01:
Who can trust any of these witnesses?

[01:31:47] Speaker 04:
Would that be an irrational thing for a juror to decide?

[01:31:51] Speaker 04:
I believe in this case without engaging in the deliberative process, yes, that is irrational and that is stonewalling.

[01:31:58] Speaker 01:
Why is it stonewalling?

[01:32:00] Speaker 01:
I've listened for six months.

[01:32:03] Speaker 01:
And everybody has been impeached up, down, backwards, and sideways.

[01:32:08] Speaker 01:
Everybody's a lying criminal.

[01:32:11] Speaker 01:
Hypothetically, I don't want to go so much into this, but you know, come out of this and go, I think they're all lying.

[01:32:15] Speaker 01:
I can't trust anything anybody's saying.

[01:32:17] Speaker 01:
The defense witnesses, the government witnesses.

[01:32:20] Speaker 01:
There's no way that can add up to beyond a reasonable doubt.

[01:32:24] Speaker 01:
That's illegitimate for a juror to decide that?

[01:32:27] Speaker 04:
The jurors were instructed in their closing instructions

[01:32:29] Speaker 04:
It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so.

[01:32:36] Speaker 04:
Right.

[01:32:37] Speaker 04:
So for a juror to come in on the first day and express a categorical position that he's rejecting all evidence and then according to what juror 10 tells us, do not consider the evidence, look at the evidence, or evaluate the case.

[01:32:48] Speaker 01:
And you would feel the same if a juror had walked in the first day and said, I have listened carefully for six months.

[01:32:53] Speaker 01:
And the government cannot get this many people to agree.

[01:32:57] Speaker 01:
Yeah, they've all got problems, but the collective picture, that's got to be true.

[01:33:02] Speaker 01:
This is, they have made their case.

[01:33:04] Speaker 01:
And that would also be a failure to deliberate.

[01:33:06] Speaker 04:
That's not what Jurten is telling you.

[01:33:08] Speaker 04:
No.

[01:33:08] Speaker 04:
It's indicating.

[01:33:09] Speaker 01:
And the court made a credibility finding that Jurten... No, what Jurten said is, on day one, the person came in and said, I've been listening for six months.

[01:33:16] Speaker 01:
And I have made a decision based on the evidence.

[01:33:20] Speaker 04:
That is directly what happened in the Baker case, and I think the court in Baker actually said that that is not, Baker's a Second Circuit case, it's obviously not from this court, but that is a refusal to deliberate.

[01:33:30] Speaker 04:
It's not enough to simply come in and express a hard and fast view and then not engage with your peers.

[01:33:36] Speaker 04:
You are here to deliberate.

[01:33:37] Speaker 04:
Deliberation involves...

[01:33:40] Speaker 04:
embodies some conversation, some attempt to grapple with the evidence and analyze it.

[01:33:46] Speaker 04:
A juror who comes in from day one and says, I'm not going to do that.

[01:33:49] Speaker 01:
I'm just going to stay in my position.

[01:33:50] Speaker 01:
That's not court words in the jurors mouth.

[01:33:51] Speaker 01:
It doesn't say I'm not going to grapple with the evidence.

[01:33:54] Speaker 01:
It says I have grappled with this evidence.

[01:33:56] Speaker 01:
I have listened to this.

[01:33:58] Speaker 01:
The evidence is predominantly testimonial.

[01:34:01] Speaker 01:
I have listened to this.

[01:34:03] Speaker 01:
I can't trust anything anybody's saying.

[01:34:06] Speaker 01:
They have all got rap sheets as long as my arm.

[01:34:10] Speaker 01:
I can't trust any of them beyond a reasonable doubt.

[01:34:14] Speaker 01:
I think that would be grappling.

[01:34:15] Speaker 01:
Would you agree that would be grappling with the evidence?

[01:34:19] Speaker 01:
Would you agree that that would be grappling with the evidence?

[01:34:23] Speaker 04:
I really think it depends on how it's phrased, Your Honor.

[01:34:26] Speaker 04:
The way I just phrased it.

[01:34:27] Speaker 01:
After a six-month-long trial.

[01:34:28] Speaker 04:
The way I just phrased it.

[01:34:29] Speaker 04:
Not after a six-month-long trial.

[01:34:32] Speaker 04:
Why not?

[01:34:32] Speaker 04:
Because there's...

[01:34:35] Speaker 04:
a wealth of evidence here.

[01:34:36] Speaker 04:
It's as if he's ignoring it.

[01:34:37] Speaker 01:
But the evidence is, I think you would agree, the vast majority of this evidence.

[01:34:42] Speaker 01:
Could you win this case if all the testimonial evidence from both sides was thrown out and you only looked at the non-testimonial evidence?

[01:34:49] Speaker 01:
Could you establish beyond a reasonable doubt?

[01:34:51] Speaker 01:
No, obviously.

[01:34:52] Speaker 01:
Okay.

[01:34:52] Speaker 01:
So the testimonial evidence makes or breaks this case, right?

[01:34:56] Speaker 01:
And the testimonial evidence was

[01:34:59] Speaker 01:
very, very heavily, people, all of whom, one by one, you could have many reasons to disbelieve.

[01:35:06] Speaker 01:
I understand the government, yeah, people don't do their conspiracies with people of their most upstanding citizens, and so this is how you have to prove your cases.

[01:35:15] Speaker 01:
But I don't understand why it would be not grappling with the evidence to say, this is a really strict, beyond a reasonable doubt standard, and I can't, I've looked all these jurors in the faces,

[01:35:26] Speaker 01:
are these witnesses in the faces, and I can't trust them at that level of certainty on either side.

[01:35:34] Speaker 01:
Why isn't that perfectly legitimate for a juror?

[01:35:36] Speaker 04:
I can't imagine that that's not a legitimate decision for a juror to make.

[01:35:40] Speaker 04:
But that is different from a juror who comes in.

[01:35:42] Speaker 04:
And if you look at the first note, one juror has stated categorically that he does not believe in any testimony from any of the cooperating witnesses.

[01:35:49] Speaker 04:
This is on the first day, less than a day of deliberations.

[01:35:52] Speaker 04:
And we know from what Juror 10 tells us.

[01:35:54] Speaker 01:
Wait, just stop there.

[01:35:55] Speaker 01:
What's wrong with that?

[01:35:56] Speaker 01:
can't trust cooperating witnesses.

[01:35:58] Speaker 01:
Why?

[01:35:59] Speaker 01:
They've all got deals to save their own skin.

[01:36:01] Speaker 01:
Why is that?

[01:36:01] Speaker 04:
When there's an instruction that tells them that you have to meet and confer with your peers.

[01:36:06] Speaker 04:
So that seems to me, that seems to me.

[01:36:08] Speaker 04:
That's what deliberations is.

[01:36:10] Speaker 04:
That's how it's defined.

[01:36:10] Speaker 05:
That seems to be the point.

[01:36:11] Speaker 05:
Because I think there's two issues potentially going on.

[01:36:15] Speaker 05:
One is whether the juror is making an assessment of the evidence.

[01:36:20] Speaker 05:
The other is whether the juror is willing to engage with the other jurors.

[01:36:24] Speaker 05:
And I think your argument seems to be that even if the juror has engaged with the evidence and reached a conclusion based on the evidence, there's still an independent obligation to confer with the other jurors about it.

[01:36:37] Speaker 04:
That's how he is instructed.

[01:36:38] Speaker 04:
That's what he was instructed to do, and he did not do that.

[01:36:41] Speaker 05:
Is that appropriate?

[01:36:42] Speaker 05:
Is that right?

[01:36:43] Speaker 05:
I mean, we have language, for example, from the Supreme Court's opinion in Allen, which Judge Lamberth

[01:36:48] Speaker 05:
read in his instructions, I think, that talk about the duty to confer with other jurors, but it can't be that you have a perpetual duty to confer with the other jurors.

[01:36:59] Speaker 05:
I mean, in fact, of course, at some point in the deliberation, suppose you deliberate for a little while

[01:37:04] Speaker 05:
and you essentially reach an impasse and the juror who's the holdout just says, look, I hear what you're saying.

[01:37:10] Speaker 05:
I'm not buying it.

[01:37:12] Speaker 05:
You're not convincing me.

[01:37:13] Speaker 05:
I'm just not going to talk to you about it anymore because we're just going around in circles.

[01:37:15] Speaker 05:
I'm not going to deliberate any further.

[01:37:17] Speaker 05:
I'm done deliberating.

[01:37:18] Speaker 05:
That seems like that has to be fine.

[01:37:20] Speaker 05:
Even though there's a failure of deliberation at that point, the juror has said, I've looked at all the evidence, I've reached a determination, I'm not going to deliberate anymore.

[01:37:28] Speaker 05:
You guys haven't persuaded me of anything.

[01:37:31] Speaker 04:
Would you agree that in that situation it would be okay to stop deliberating?

[01:37:35] Speaker 04:
with a view to trying to engage with his peers and discuss the evidence, there would be a point at which obviously the juror has a right to just, he doesn't have to do violence to his own views.

[01:37:45] Speaker 04:
He doesn't have to give in to what others think.

[01:37:47] Speaker 04:
But he has to engage.

[01:37:49] Speaker 05:
If you can stop deliberating at some point, your argument is that you can't stop deliberating at the outset.

[01:37:54] Speaker 05:
No matter how firm your conviction is on the evidence.

[01:37:56] Speaker 05:
Even if it's a completely bona fide conclusion based on the evidence, you still have a duty to engage with the other jurors.

[01:38:04] Speaker 04:
Because if you don't, that's correct, Your Honor.

[01:38:06] Speaker 04:
Because if you don't, you're not deliberating.

[01:38:09] Speaker 04:
And this juror, and Judge Lamberth found this, had a fixed view from the outset.

[01:38:13] Speaker 04:
That's what the import of juror 10's testimony at the voir dire.

[01:38:17] Speaker 01:
And actually, it's consistent with all the notes.

[01:38:19] Speaker 01:
Were there not some jury verdicts of acquittal in this case?

[01:38:23] Speaker 04:
No, there were no acquittals.

[01:38:24] Speaker 04:
There were no?

[01:38:25] Speaker 04:
They hung.

[01:38:25] Speaker 04:
They hung on Diane Luther Council.

[01:38:27] Speaker 04:
There were no acquittals.

[01:38:30] Speaker 04:
None.

[01:38:30] Speaker 04:
OK.

[01:38:30] Speaker 04:
And I think that factual finding is supported by the record.

[01:38:34] Speaker 04:
It's supported by what Juror 10 said.

[01:38:36] Speaker 04:
It's supported by the notes, because when you read the notes in conjunction with what Juror 10 said, and Juror 10 was the author of the notes, it's clear that this juror was not deliberating.

[01:38:46] Speaker 01:
The difficulty with once we get past that and look at the deliberation process is that the district court judge said in ruling on that that he had to rely on part in making that determination that he hadn't deliberated enough.

[01:39:04] Speaker 01:
on his own facts about looking in the jury room and going past the jury room and not hearing, shouting facts that can't be cross-examined realistically by anybody.

[01:39:17] Speaker 01:
And the district court said he had to rely on that in part to find a breakdown of the deliberative process.

[01:39:24] Speaker 01:
Was it proper for the judge

[01:39:26] Speaker 01:
to inject those two findings and then rely on them in making that deliberation decision?

[01:39:31] Speaker 04:
On the issue of where the juror was sitting, which was the... The two of them together.

[01:39:35] Speaker 04:
Was it a proper Friday one?

[01:39:36] Speaker 04:
I want to separate them for a reason, Your Honor.

[01:39:38] Speaker 04:
On the issue of where the juror was sitting, the juror himself admitted that he was sitting against the back wall.

[01:39:43] Speaker 04:
During the voir dire, he was asked, is that where were you sitting against the back wall?

[01:39:46] Speaker 04:
Has that been your seat since the beginning?

[01:39:48] Speaker 04:
Yes.

[01:39:49] Speaker 04:
So the fact that Judge Lamberth observed it really doesn't add anything because the juror acknowledged it.

[01:39:54] Speaker 04:
He was sitting apart from the rest.

[01:39:57] Speaker 04:
On the issue of what the judge heard coming and going, he put it on the record.

[01:40:03] Speaker 04:
Counsel could ask questions about it if they wanted to ask questions.

[01:40:05] Speaker 04:
It's a fairly discreet fact.

[01:40:08] Speaker 04:
It's something that the judge observed, and I think it can be part of his fact-finding, as long as he lets the police know that that's part of his finding.

[01:40:16] Speaker 01:
Really?

[01:40:17] Speaker 01:
They were supposed to then?

[01:40:18] Speaker 01:
How are they supposed to question that?

[01:40:20] Speaker 04:
How many times did you walk by the room, and how many times did you hear it?

[01:40:23] Speaker 04:
Really?

[01:40:23] Speaker 04:
They can ask the judge those questions, and he can answer them.

[01:40:28] Speaker 01:
I thought one of the reasons that we don't let judges become fact witnesses in HACES is because we recognize it's a practical matter that there's no way to test those facts.

[01:40:37] Speaker 01:
But no one's going to cross-examine the judge.

[01:40:41] Speaker 04:
But they can ask questions to have the court put on the record what the basis of the court's ruling is.

[01:40:46] Speaker 04:
That's done all the time.

[01:40:48] Speaker 01:
27th ruling was in part I'm relying on my own personal facts that I discovered about where the juror was sitting.

[01:40:55] Speaker 01:
And the key thing, I think, was during that I was getting shouted down when I tried to engage in this process.

[01:41:02] Speaker 01:
And this key finding by him, I didn't hear any shouting.

[01:41:07] Speaker 01:
If that was critical to determining whether or not he had been deliberating and just getting shouted down by the others, at which point you can go, forget it.

[01:41:15] Speaker 04:
I'm not sure how critical that was, Your Honor.

[01:41:17] Speaker 01:
I mean, he certainly cited... Well, he said he relied... No, but not just cited.

[01:41:20] Speaker 01:
He said he relied on that in part for his decision.

[01:41:22] Speaker 04:
Yes, but then we don't know what his decision would be without that.

[01:41:27] Speaker 04:
He also relied on his evaluation of the demeanor of the witnesses, and he felt that Juror 10 was very credible, and Juror 9 wasn't.

[01:41:35] Speaker 01:
And the note-taking incident, I think... But he said it played a role in his decision, and so I don't know how we can back out and say what his decision would be if he hadn't injected his own findings about the guy not being shouted down into the case.

[01:41:49] Speaker 04:
I think the other factor, the primary factor here is that he made the finding that Juror 10 was credible.

[01:41:56] Speaker 04:
He didn't say that was credible.

[01:41:58] Speaker 01:
He did say that Juror 10 was credible.

[01:41:58] Speaker 01:
I understand he could have written an opinion that way.

[01:42:00] Speaker 01:
He could have left this out altogether.

[01:42:02] Speaker 01:
What do I do with the fact that he said he was relying in part on his own observations?

[01:42:07] Speaker 04:
The judge's observation coming and going and what he heard and didn't hear, he put it on the record.

[01:42:12] Speaker 04:
I don't think that that's inappropriate for him to take into account.

[01:42:15] Speaker 04:
Even if that were the key fact?

[01:42:17] Speaker 04:
I don't believe it was the key fact, but even if it were, yes, I would say it was still appropriate.

[01:42:25] Speaker 04:
If the court has no further questions on this issue, I can move on to the second.

[01:42:40] Speaker 04:
On the question of the overview witness,

[01:42:46] Speaker 04:
In the Moore case, the court was questioning what the standard was that was applied in the Moore case, and I think it actually isn't very clear.

[01:42:55] Speaker 04:
Moore, as in this case, was a case where there was no overall objection to the overview testimony.

[01:43:01] Speaker 04:
And as I read the Moore opinion, essentially what I think is the court did what it sometimes does and says really under any standard this is harmless, so we don't really have to resolve

[01:43:11] Speaker 04:
whether it was or wasn't plain error.

[01:43:12] Speaker 04:
This case is clearly a plain error case, however.

[01:43:14] Speaker 04:
There was no overriding objection to this testimony.

[01:43:17] Speaker 09:
It's not an overriding objection.

[01:43:18] Speaker 09:
There are specific objections.

[01:43:19] Speaker 04:
There were objections to specific questions.

[01:43:21] Speaker 04:
And I think if the court looks at those objections, a lot of them were on other evidentiary grounds, not on the grounds that this was improper testimony.

[01:43:28] Speaker 04:
But some of them appear to be hearsay objections.

[01:43:32] Speaker 04:
Actually, a number of them appear to be hearsay objections.

[01:43:36] Speaker 04:
You can't really take from that.

[01:43:37] Speaker 04:
The court could not have taken from that, that there was an overall objection to this line of testimony.

[01:43:42] Speaker 04:
So that objection has to be reviewed here for plaintiff.

[01:43:47] Speaker 04:
And under plain error, they have to show the harm to their substantial rights and that the fairness and integrity of the trial was called into question.

[01:43:54] Speaker 04:
For the very same reasons that the Court affirmed in Moore, I think the Court has to affirm here.

[01:43:59] Speaker 01:
The difference here is that the United States had been on the receiving end of the Fifth Circuit's decision in the Griffin case a few months before it put this witness on.

[01:44:07] Speaker 01:
And so did the United States just make an official position that the Fifth Circuit was wrong and that it could do overview witnesses?

[01:44:17] Speaker 01:
Why didn't, why wasn't the fact that the Court of Appeals had now said don't do this factored into trial strategy here?

[01:44:24] Speaker 04:
Because the Fifth Circuit's not binding on this, on this.

[01:44:26] Speaker 01:
And so the government's position in that case is the physics one.

[01:44:28] Speaker 04:
And if the defendants weren't going to object to it, and in fact, in this case.

[01:44:31] Speaker 01:
Why don't you try to get back to something, wait.

[01:44:33] Speaker 01:
You don't know when you're setting up your trial strategy whether they're going to object or not.

[01:44:38] Speaker 01:
So I just want to make sure the government itself had made a decision that this was a legitimate type of witness to put on in this way.

[01:44:45] Speaker 04:
I can't say whether the trial team was aware of the Fifth Circuit's decision, but I can say that it's not governing law in this jurisdiction.

[01:44:51] Speaker 04:
If it had been, then certainly we would have been aware of it and would have abided by it, but it's not.

[01:44:56] Speaker 04:
So the fact that another circuit took a position, it really doesn't govern what we were required to do in this case.

[01:45:03] Speaker 04:
We put the evidence in, the defense didn't object to it.

[01:45:08] Speaker 04:
Had they objected, perhaps it would have been a different result.

[01:45:11] Speaker 05:
In the appeal and more, did the government take the position that the testimony of the overview witness was okay?

[01:45:17] Speaker 05:
Or did it acknowledge that it was improper, but then go to substantial prejudice?

[01:45:22] Speaker 04:
We defended the admission of the testimony and we lost on that, Your Honor.

[01:45:25] Speaker 04:
The court found that it was improper, but only in part.

[01:45:28] Speaker 04:
I mean, there are some limited issues as to which an overview witness can testify.

[01:45:33] Speaker 04:
Right.

[01:45:34] Speaker 04:
And I would agree here that in some instances, Sparks went beyond that.

[01:45:38] Speaker 04:
But as to those aspects of his testimony that went beyond what's permissible under Moore, there was other testimony from the cooperating witnesses that established every one of those points.

[01:45:48] Speaker 04:
And we laid that out in our brief in detail.

[01:45:51] Speaker 04:
So at the end of the day, everything that came in came in through other witnesses as well.

[01:45:56] Speaker 04:
And for that reason, using a plein air standard, there's just no basis for reversal here.

[01:46:03] Speaker 01:
If the court doesn't have any other questions on that.

[01:46:06] Speaker 01:
I'm very sorry to do this, just to pop back to the juror one thing.

[01:46:10] Speaker 01:
What time did deliberation start on the first day?

[01:46:15] Speaker 01:
Morning or afternoon?

[01:46:16] Speaker 04:
I don't recall, Your Honor.

[01:46:20] Speaker 01:
OK.

[01:46:20] Speaker 01:
Maybe someone can let you know, but go ahead.

[01:46:22] Speaker 01:
I don't want to hold things up.

[01:46:24] Speaker 04:
Am I able to?

[01:46:28] Speaker 04:
I know at one point the court said it was less than a day of deliberation.

[01:46:31] Speaker 04:
OK.

[01:46:34] Speaker 04:
Turning on the other crimes evidence.

[01:46:38] Speaker 04:
Council started with the instruction, so I'll start there as well.

[01:46:41] Speaker 04:
The instruction did do the primary thing that the instruction needed to do, which was it called the jury off from the improper use of this testimony.

[01:46:49] Speaker 04:
It also gave the jury guidance as to how the evidence could properly be used.

[01:46:54] Speaker 04:
the list of items, motive, intent, opportunity.

[01:46:57] Speaker 09:
Those are all standard reasons for which other crimes evidence is admitted.

[01:47:12] Speaker 04:
I'm sorry, Your Honor, I'm not familiar with your name.

[01:47:14] Speaker 09:
I think that's the case where essentially the judge, I think what was done here is the end of a, can't use it for propensity, can use it for items one through nine, go to, and the Sixth Circuit said that

[01:47:42] Speaker 09:
suggested in fact that the judge did not have clear ideas to the balancing that is required, and also it wasn't much guidance to the jury.

[01:47:54] Speaker 04:
Well, first of all, there's a couple of distinguishing factors here.

[01:47:57] Speaker 04:
There were a lot of mid-trial instructions given on the 404B evidence.

[01:48:03] Speaker 04:
And so to a lot of the evidence, the jury was aware of the purposes for which it could be given, because they were told this is being given to you to explain why they entered into the conspiracy.

[01:48:12] Speaker 04:
So that makes it, I think, slightly different from Merriwether, because you have to view the instructions as a whole.

[01:48:18] Speaker 04:
But another component here is the defendants sort of at the last minute came up and said, well, we want the court to articulate all the different reasons that this evidence came in, but never offered an actual proposed instruction to that effect.

[01:48:29] Speaker 05:
Well, in Merriwether also, was there an instruction to the jury about what they weren't supposed to do with the evidence?

[01:48:36] Speaker 04:
Again, Your Honor, I'm not familiar with Merriwether.

[01:48:39] Speaker 04:
OK, I'm sorry.

[01:48:40] Speaker 04:
But there was not an explicit instruction offered to the court to evaluate.

[01:48:45] Speaker 04:
And I think one of the problems here, and Your Honor sort of touched on this, a lot of these items of evidence could have come in for multiple purposes.

[01:48:53] Speaker 04:
And so once you start articulating, this item of evidence comes in for this reason and that reason, and this item of evidence could come in for any one of these three reasons.

[01:49:01] Speaker 04:
And for an example,

[01:49:03] Speaker 04:
Mr. Seegers, the evidence of his 1993 drug dealing in the area of 8th and 8th Street that was offered to show his connection to the area and that, you know, he had prior drug sales.

[01:49:14] Speaker 04:
That's how he became a part of the conspiracy that was selling in that area.

[01:49:17] Speaker 04:
It also became relevant later in the trial when it became clear that Mr. Seegers was disavowing knowledge or possession of the drugs that were recovered in his house.

[01:49:25] Speaker 01:
I'm sorry, can you go back and just clarify one thing you said?

[01:49:27] Speaker 01:
He'd been doing drug dealing in the area and that showed how he would

[01:49:33] Speaker 01:
Get into the conspiracies.

[01:49:34] Speaker 01:
Oh, you're just then?

[01:49:35] Speaker 01:
What does that mean?

[01:49:36] Speaker 04:
One of the things that I think counsel has confused, quite frankly, the evidence, the ready, willing, and able evidence, Ronald Alford's pre-conspiracy conduct, the Kerry Ball murder, conspiracy requires proof of the meaning of the minds.

[01:49:50] Speaker 04:
There has to be a showing that people got together for a common purpose to do a common thing.

[01:49:54] Speaker 04:
All of that evidence went to explain, and that's why the why, not just that the meeting occurred, but why the meeting occurred is actually very important.

[01:50:03] Speaker 04:
It explained why the conspiracy wanted to do business with Ronald Dauford and why Ronald Dauford wanted to do business with the conspiracy.

[01:50:09] Speaker 01:
I've got that on Kerry Ball.

[01:50:09] Speaker 01:
I'm getting to the more general ready, willing, and able statements.

[01:50:12] Speaker 01:
You had said one about the H Street, not Kerry Ball, but the H Street.

[01:50:16] Speaker 04:
It's a similar rationale.

[01:50:18] Speaker 04:
The fact that Seegers was selling in 8th and 8th Street made him someone that the conspiracy, because it did business in 8th and 8th Street, in fact, that became a primary focus of their operations.

[01:50:29] Speaker 04:
That makes him someone that they wanted to engraft into their organization.

[01:50:32] Speaker 04:
So that's part of the meeting of the minds.

[01:50:35] Speaker 04:
The evidence was that they wanted him.

[01:50:38] Speaker 04:
Well, I think the jury could infer that from the fact that he is working in that area.

[01:50:41] Speaker 04:
And it also puts him.

[01:50:44] Speaker 01:
Doesn't that mean that any time you find someone who is engaged in criminal activity in the same geographical area, the years later a conspiracy develops that you go, well, now we know why.

[01:50:54] Speaker 01:
But you have to have the other part of the meeting of the minds.

[01:50:56] Speaker 04:
I mean, you have to show both parties are coming together.

[01:50:58] Speaker 10:
So what's the other part here?

[01:50:59] Speaker 04:
And the other part here is that Seeger's

[01:51:01] Speaker 04:
became involved in drug dealing out of Williams's house and was being supplied by Moore and Gray, and then eventually was approached by Moore to murder Diane Luther.

[01:51:11] Speaker 04:
So you have all of that put together.

[01:51:13] Speaker 01:
Well, that might go to its efficiency point, but I'm not sure why it goes to making the fact that years before he'd been dealing drugs in the area anything other than propensity evidence.

[01:51:25] Speaker 04:
It wasn't offered for propensity.

[01:51:26] Speaker 04:
It wasn't argued as propensity.

[01:51:27] Speaker 04:
It was offered to show how he came in connection with the

[01:51:31] Speaker 01:
with the conspiracy, it may have been... How many years before was the dealing?

[01:51:36] Speaker 01:
Three.

[01:51:37] Speaker 01:
Three.

[01:51:37] Speaker 01:
Because I can see, like, you know, someone sort of doing it a year before, and then you could sort of say, well, they must have bumped into each other.

[01:51:45] Speaker 01:
They were all there in the same area doing it.

[01:51:47] Speaker 01:
But three years before, she was a bit more of a stretch.

[01:51:50] Speaker 04:
Well, there was this evidence that, and I believe this came in, Your Honor, it came in that he had been away and had come home.

[01:51:56] Speaker 04:
I don't know that it was explicit that he had been jailed, but he had been away and had come home.

[01:52:02] Speaker 04:
So, you know, that gap in between is explained by the fact that there was an absence of his presence, but he comes back to the same neighborhood and then becomes part of this conspiracy, which now in the meantime has become very active in that area.

[01:52:15] Speaker 04:
So it does show the connection, and it was offered for that purpose.

[01:52:20] Speaker 04:
And my point is simply that a lot of these items of evidence could have had multiple purposes.

[01:52:24] Speaker 04:
When you start detailing all of that, beyond the fact that you get a very confusing instruction that I actually think would not have been helpful to the jury, it also tends to highlight the significance of the evidence.

[01:52:34] Speaker 04:
And I thought I heard counsel say that he would object to that kind of an instruction, because it would heighten and highlight the evidence.

[01:52:40] Speaker 01:
One question I had about this instruction, though,

[01:52:43] Speaker 01:
And again, they don't want it all in.

[01:52:46] Speaker 01:
Would a jury not be, when they hear an instruction and then there's references to specific pieces of evidence, would they not think that instruction only applies to those, naturally think it only applies to those pieces of evidence, so you had an exclusion by failure to reference problem here?

[01:53:04] Speaker 04:
I don't believe so, Your Honor, because you have argument.

[01:53:07] Speaker 04:
And the argument elucidates

[01:53:10] Speaker 04:
what the instruction is about.

[01:53:12] Speaker 01:
So the judge says, don't pay any attention to those arguments, pay attention to my instructions.

[01:53:15] Speaker 01:
And my instructions are, here's what you do with this 404B evidence, and here are the 404B things that I'm mentioning to you.

[01:53:23] Speaker 01:
And he doesn't say, for example, or anything like that.

[01:53:26] Speaker 01:
The long list seems bad.

[01:53:28] Speaker 01:
The short list seems bad.

[01:53:30] Speaker 01:
No reference seems bad.

[01:53:32] Speaker 04:
Conduct that occurs during the course of the conspiracy is not 404B evidence.

[01:53:36] Speaker 04:
It's intrinsic to the conspiracy.

[01:53:38] Speaker 04:
So we're talking here about pre-conspiracy conduct.

[01:53:40] Speaker 04:
The jury was told none of these defendants are on trial with respect to any of the evidence that predated their entry into the conspiracy.

[01:53:47] Speaker 04:
So when you view all of the instructions as a whole, that evidence is, that's the other crime's evidence.

[01:53:52] Speaker 04:
That's the evidence they're not on trial for.

[01:53:54] Speaker 04:
That's the evidence that they're evaluating under the mode of intent, opportunity,

[01:53:58] Speaker 04:
You do have a couple of other items of evidence that are highlighted, absolutely.

[01:54:03] Speaker 04:
Those were highlighted throughout the trial because at those points, counsel asked for special instructions and they got them.

[01:54:09] Speaker 04:
So, you know, it's just repeating that.

[01:54:11] Speaker 04:
I don't think as a whole reading this instruction and the way the instructions were given, the jury was going to misunderstand that it was only those items of evidence that the

[01:54:20] Speaker 04:
the mode of intent opportunity instruction applied to, because they were told the date at which each defendant entered into the conspiracy, and they weren't charged with any of that pre-conspiracy conduct.

[01:54:31] Speaker 01:
Can I ask just to clarify one thing, too?

[01:54:33] Speaker 01:
I'm a little confused about it.

[01:54:34] Speaker 01:
So notice was given for a few of these pieces of what were clearly pre-conspiracy conduct, like the Kerry Ball.

[01:54:45] Speaker 01:
But my understanding is the government said there wouldn't be any others, and then there seems to have been a lot of others.

[01:54:50] Speaker 01:
Can you clarify that for me?

[01:54:51] Speaker 04:
Sure.

[01:54:51] Speaker 04:
The government's theory was that this was all intrinsic evidence, because all of it tended to show the relationships between the conspirators, the way the conspiracy developed, the relationship between conspirators and victims.

[01:55:05] Speaker 04:
After Moore, Moore, I think, curtailed somewhat what is intrinsic evidence.

[01:55:10] Speaker 04:
And specifically in Moore, we had put in evidence about Raphael Edmond and Moore's connection with him to explain how Moore learned to set up his own conspiracy.

[01:55:19] Speaker 04:
And the court specifically said, you know, it's just too far afield.

[01:55:22] Speaker 04:
That can't be intrinsic.

[01:55:23] Speaker 01:
What about the, I'm sorry, I think I've got it right.

[01:55:27] Speaker 01:
In my brief, it's R. Alfred.

[01:55:30] Speaker 01:
The evidence about the so-called police shooting

[01:55:35] Speaker 01:
Right.

[01:55:36] Speaker 01:
You didn't think that was part of the intrinsic conspiracy, right?

[01:55:38] Speaker 04:
Under our pre-moor understanding of the law, yes, we did.

[01:55:42] Speaker 01:
That was intrinsic to this conspiracy?

[01:55:45] Speaker 04:
The police shooting was just a comment that was made that wasn't emphasized.

[01:55:52] Speaker 04:
We did not put in evidence of a police shooting.

[01:55:54] Speaker 04:
We put in evidence of possession of a gun.

[01:55:56] Speaker 04:
In connection with the evidence about possession of a gun, one of the officers mentioned that... How many years before the conspiracy?

[01:56:01] Speaker 01:
I'm sorry?

[01:56:02] Speaker 01:
How many years was that before the conspiracy?

[01:56:03] Speaker 04:
I don't remember if that was the 1994 or the 1991 incident.

[01:56:06] Speaker 04:
I believe it was the 1994 incident, and that had a whole separate 404B basis for admission, which was...

[01:56:13] Speaker 04:
I can get into it if the court wants.

[01:56:15] Speaker 04:
But the 1994 gun possession related to the motive for the Kerry Ball murder and the later motive for the Joseph Thomas murder, because in connection with possession of that gun, he was arrested, he gave a statement to his probation officer and explained, I have the gun because these people have been harassing me and I've got it for my protection.

[01:56:35] Speaker 04:
That shows he had a gun, he was willing to take violent action against these people if necessary, and later indeed did kill

[01:56:42] Speaker 04:
arranged to kill Kerry Ball and Joseph Thomas.

[01:56:45] Speaker 04:
In the connection of that evidence coming in, a comment was made about this was at the scene of a police shooting.

[01:56:52] Speaker 04:
There was no indication that he fired at the police.

[01:56:55] Speaker 04:
There was some discussion about whether or not there should be further instruction on it.

[01:56:59] Speaker 04:
Ultimately, counsel said, let's leave it alone.

[01:57:01] Speaker 01:
And just one question.

[01:57:02] Speaker 01:
It's your position, the United States position, that it is perfectly fine to argue to juries that are ready, willing, and able?

[01:57:09] Speaker 04:
In the context of this case and given the instructions that were given, remember that ready, willing, and able language.

[01:57:15] Speaker 04:
relates to the evidence as to which there have been instructions.

[01:57:19] Speaker 04:
This relates to their entry into the conspiracy.

[01:57:22] Speaker 04:
And yes, that does.

[01:57:23] Speaker 04:
It does show that they're ready, willing, and able.

[01:57:25] Speaker 04:
That is the meeting of the minds.

[01:57:27] Speaker 04:
They are in a position where they can come into this conspiracy and offer something that's of value to the co-conspirators.

[01:57:35] Speaker 04:
And I just wanted to complete my answer, Your Honor, on the intrinsic.

[01:57:38] Speaker 04:
So my point was, we had offered it as intrinsic evidence.

[01:57:41] Speaker 04:
I think under more, it looks like some of this may have been too far afield, but it's still admissible in Harvey under 404B.

[01:57:48] Speaker 04:
But that's why there wasn't a 404B analysis.

[01:57:52] Speaker 09:
briefly on ready, willing, and able.

[01:57:56] Speaker 09:
That's okay because it relates to particular skills the defendant has or because

[01:58:08] Speaker 09:
One's going through the mind of the people already in the conspiracy who are assessing this person, and we infer that they're making a judgment that he is ready and willing.

[01:58:24] Speaker 09:
Ready, willing, and able, as he has, which could be said to be, has a propensity for doing good drug dealing.

[01:58:31] Speaker 04:
Right.

[01:58:31] Speaker 04:
It's a little bit of both.

[01:58:33] Speaker 04:
It's the ready, willing, and able on the part of the conspirators

[01:58:37] Speaker 04:
to combine with him because he has something that they need, right?

[01:58:41] Speaker 04:
The testimony is that around this time, if I'm recalling it correctly, Gray and Moore had been falling out intermittently.

[01:58:50] Speaker 04:
And so Gray is looking for regular sources of big supply, and Ronald Alford can fill that gap.

[01:58:56] Speaker 04:
It's also from Ronald Alford's point of view because he's now in trouble with Gray because of the Kerry Ball murder.

[01:59:01] Speaker 04:
He has something he can give Gray that will get Gray off his back.

[01:59:05] Speaker 04:
He is a big-time dealer, so he can supply this.

[01:59:08] Speaker 09:
I understand that in this specific context, but just the phrase, ready, willing, and able, sounds to me very like has a propensity to do these things.

[01:59:19] Speaker 04:
Given that the jury was instructed that they can't use it for the bad-act propensity, I mean, I think it's a principle of this court's always followed that you can't take the worst construction of the argument and assume that the jury glommed onto that.

[01:59:32] Speaker 04:
I think here, given the fact that they were properly instructed,

[01:59:35] Speaker 04:
They couldn't have used it for propensity.

[01:59:40] Speaker 04:
If the court has no further questions on that issue.

[01:59:44] Speaker 04:
Moving on to the confrontation clause issue.

[01:59:46] Speaker 04:
I just wanted to clarify one thing.

[01:59:49] Speaker 04:
I believe Judge Williams, you asked about the Diane Luther issue.

[01:59:51] Speaker 04:
Yes.

[01:59:52] Speaker 04:
I just wanted to say this.

[01:59:53] Speaker 04:
The testimony that the medical examiner gave about

[01:59:56] Speaker 04:
the fact that Diane Luther had not been engaged in a struggle, that was based on a photograph of Diane Luther's hand showing her intact false nails.

[02:00:05] Speaker 04:
And the medical examiner said the nails would have come loose if she'd been engaged in a conflict.

[02:00:10] Speaker 04:
That photograph was independently authenticated by Shelley Dabney, which was Diane Luther's daughter.

[02:00:16] Speaker 04:
So that had nothing really to do.

[02:00:18] Speaker 04:
That's not affected by the admission of autopsy.

[02:00:22] Speaker 04:
I think this case is governed by more on the fact that for the narcotics conspiracy and the RICO conspiracy, circumstantial evidence of the drug dealing is sufficient.

[02:00:31] Speaker 04:
There was more than enough circumstantial evidence of the drug dealing in this case.

[02:00:35] Speaker 04:
And even on the specific items of evidence as to which Agent Walker testified, as to each item of those evidence, and we laid it out in our brief, there was other evidence about what the substance was.

[02:00:47] Speaker 04:
Some by admissions, for example, the kilo brick of cocaine that Ronald Alfred

[02:00:52] Speaker 04:
uh, was seized from Ronald Alfred by the Park Police.

[02:00:55] Speaker 04:
Albert Martinez testified that Alfred admitted to him that the police had seized tequila from him.

[02:01:01] Speaker 04:
So there was other evidence on each of those points, and that circumstantial evidence is enough to survive even the confrontation clause violation here.

[02:01:13] Speaker 04:
So moving on to the closing argument,

[02:01:19] Speaker 04:
to the extent, and we indicated this in our brief, that the playbook motif

[02:01:27] Speaker 04:
could be taken as a suggestion that the defendants and their attorneys had read the playbook and were following it.

[02:01:32] Speaker 04:
There's no facts and evidence as to that, and we agree with that.

[02:01:35] Speaker 04:
But the motif overall was just a rhetorical device to frame the evidence, and it framed what the jury had seen.

[02:01:42] Speaker 05:
It framed what the jury had heard.

[02:01:44] Speaker 05:
I take the point that that's the way you're describing it now.

[02:01:47] Speaker 05:
And I also take the point that, in theory, it could have been a way to use the playbook.

[02:01:52] Speaker 05:
But what was actually said about the playbook

[02:01:56] Speaker 05:
It doesn't square with that.

[02:01:57] Speaker 05:
At least it certainly doesn't square with that in all the statements.

[02:02:00] Speaker 05:
I mean, the very first statement says, and this is at JA 53-72, we're going to talk about how it is a number of the defendants and some of the defense attorneys took advantage of Patrick Andrews' playbook on how to put together a false defense.

[02:02:13] Speaker 05:
It's hard to read that without thinking that the assertion being made is that somebody actually looked at the thing and took lessons from it on how to put together a false defense.

[02:02:20] Speaker 05:
And then later on, I think this is also in the morning,

[02:02:23] Speaker 05:
before the break, to varying degrees and to varying extents, you saw each of the defendants following pages from the playbook.

[02:02:30] Speaker 05:
And what I want to do is to go through an order in which the defendant presented their cases, each defense case, each defense argument, and then highlight some of the defense witnesses.

[02:02:38] Speaker 05:
And so there is this flavor, recurring flavor, that it's not just that I'm going to use this as an analytical rubric for descriptive purposes.

[02:02:45] Speaker 05:
It's that this is a thing that actually people looked at, and they got their cues from it.

[02:02:50] Speaker 05:
And as counsel argued, it lends force to the notion that there was a collusive aspect to this and that everybody was operating off the same map on how to put together arguments in this sort of situation.

[02:03:05] Speaker 04:
I think it is fair comment for the

[02:03:08] Speaker 04:
government to say, or for any party to say, you can look at the tactics that were employed by the other side and ask yourself whether or not there's any credence to what they've done and what they presented to you.

[02:03:18] Speaker 04:
And a good portion of the playbook, I think, falls within that.

[02:03:22] Speaker 04:
I agree, Your Honor.

[02:03:23] Speaker 05:
It could.

[02:03:24] Speaker 05:
I don't disagree with you at that level of generality that that's within the domain of appropriate argumentation, particularly if there's an instruction, as there was in here, that arguments of counsel are not evidence.

[02:03:37] Speaker 05:
But where are the assertions being made, not just that their arguments don't make any sense, but that the reason their arguments don't make any sense is because they were following this playbook.

[02:03:49] Speaker 05:
This playbook told them how to construct a defense.

[02:03:52] Speaker 04:
This is the interesting thing about this case.

[02:03:55] Speaker 04:
A good part of the defense case was to attack the government's cooperating witnesses, who they called the collaborators.

[02:04:01] Speaker 04:
They were all over at the jail.

[02:04:02] Speaker 04:
There was plenty of opportunity at the jail for them to get together.

[02:04:05] Speaker 04:
people could pass notes under the jail doors and share information.

[02:04:10] Speaker 04:
All you needed to know what someone was indicted for, and then you could make up a story to support that indictment.

[02:04:16] Speaker 04:
Well, that goes the other way as well.

[02:04:18] Speaker 04:
Most of the defense witnesses were incarcerated individuals.

[02:04:21] Speaker 04:
The defendants were incarcerated, and then actually one of the defense witnesses revealed that, specifically as to, I believe, Segers, Oliver, and McGill.

[02:04:33] Speaker 04:
This notion that they could be together cooking up a defense absolutely had support in the record through the defense that the defendants themselves put in, that the jail walls are permeance, information flows back and forth, people make things up.

[02:04:45] Speaker 04:
Patrick Andrews' letters were an example of that, and certainly I think it would be permissible by inference to say what you see Patrick Andrews doing, that's what anyone in the jail can do.

[02:04:55] Speaker 04:
And we see by the conduct here and by the testimony you had here and some of the falsehoods that were displayed to you here that that's exactly what they did.

[02:05:02] Speaker 05:
But do you think it doesn't add anything to a mode of argument that says that what you heard from that witness doesn't make any sense?

[02:05:11] Speaker 05:
Here's what they were really trying to do.

[02:05:13] Speaker 05:
This is what anybody would do in that kind of situation.

[02:05:15] Speaker 05:
Here's the type of thing you try to show that it could have been anybody else.

[02:05:18] Speaker 05:
You try to show that everybody's out to get you.

[02:05:20] Speaker 05:
You try to intimidate witnesses.

[02:05:21] Speaker 05:
You try to get them to stop testifying that way.

[02:05:23] Speaker 05:
That's all generic stuff that we can understand, but do you not think it adds anything to say, and actually, there was actually a guide

[02:05:30] Speaker 05:
that told everybody how to do that.

[02:05:32] Speaker 05:
And they all gathered around and they looked at the guide and they took lessons from that guide and then they used that guide in the way they presented their case.

[02:05:41] Speaker 05:
Doesn't it add something to go the latter step?

[02:05:44] Speaker 04:
Going back to the Don Lee de Cristoforo point that you can't assume that the jury takes the worst case construction.

[02:05:51] Speaker 04:
I think the rhetorical device here is

[02:05:54] Speaker 04:
I don't think he was actually saying, and I don't think that Jerry would have taken it as he was actually saying, they literally read this.

[02:06:01] Speaker 04:
Because he said this was authored by Patrick Andrews and Ernest Stark.

[02:06:05] Speaker 04:
No question about that.

[02:06:06] Speaker 04:
These guys didn't author the playbook.

[02:06:08] Speaker 04:
It's more by comparison.

[02:06:10] Speaker 04:
Look at all these things that Patrick Andrews is talking about.

[02:06:13] Speaker 05:
You don't have to author something to take use from it.

[02:06:17] Speaker 04:
That's correct.

[02:06:18] Speaker 04:
But I think the argument was really more, isn't it interesting that all of these sorts of things are happening?

[02:06:23] Speaker 04:
And again, given that they put in evidence that there's collusion at the jail, that people can talk, that people transmit information, there is a factual basis for an argument that they would know these kinds of arguments existed.

[02:06:35] Speaker 04:
Patrick Andrews was a defense witness.

[02:06:38] Speaker 04:
He did say these things.

[02:06:39] Speaker 04:
This was his mindset.

[02:06:40] Speaker 04:
about how to go about conducting a defense.

[02:06:43] Speaker 01:
You see that circle of collusion following the playbook.

[02:06:49] Speaker 01:
That's what he said.

[02:06:50] Speaker 01:
Right.

[02:06:50] Speaker 01:
Does that not sound like alleging that the defense, first of all, of all the defendants, they all got together, putting them all together, not looking at them individually, and there was a conspiracy amongst them to lie to you jurors in this court?

[02:07:13] Speaker 04:
and i actually believe we're going to have a great to to join the defense together for governments argument the defect the jury has to do each defendant individually but this is a conspiracy case our whole theory was that conspiracy wasn't i didn't understand the conspiracy to be too

[02:07:30] Speaker 01:
commit perjury and fraud on the court and that included defense counsel.

[02:07:35] Speaker 04:
The jury had evidence that a defense file belonging to Dion Oliver passed through the hands of a witness from Ronald Alford and ended up in the hands of a witness for Franklin Seegers and it was photographs of that witness's death.

[02:07:47] Speaker 01:
How does that apply to all the defendants?

[02:07:48] Speaker 01:
That suggests collusion.

[02:07:50] Speaker 01:
And that applies to all the defendants?

[02:07:52] Speaker 01:
That's the problem here is you're sweeping everybody together

[02:07:55] Speaker 01:
And you are now arguing a whole nother conspiracy that wasn't proven, and the conspiracy is their defense.

[02:08:04] Speaker 04:
Given the fact that there was a conspiracy proven,

[02:08:07] Speaker 04:
of the conduct of these individuals, the narcotics and RICO conspiracy, the continuing nature of even some of the co-conspirators during the trial, I certainly think the jury could infer from that that that conspiracy is continuing.

[02:08:19] Speaker 01:
I guess it's a little bit of a cart before the horse because he hasn't gone to the jury yet.

[02:08:24] Speaker 01:
And so the way you're telling them to even look at that decision about whether there was a narcotics conspiracy or a RICO conspiracy,

[02:08:31] Speaker 01:
is to keep in mind that there was this defense strategy conspiracy.

[02:08:35] Speaker 01:
Take that with you in there before you start voting on these other conspiracies.

[02:08:41] Speaker 04:
The fact that some of the conduct that we saw did suggest that they were continuing to conspire throughout the trial, I think that's fair game.

[02:08:49] Speaker 01:
So you think, I guess I'm going to confuse them because I thought you didn't agree with this, this rebuttal argument, but now you're saying that it was fair game, the whole playbook?

[02:08:57] Speaker 04:
The point that I don't agree with is that they actually, to the extent, and that's why we say the remarks are ill-advised, to the extent we're saying they actually read it, there's no factual basis for that.

[02:09:06] Speaker 04:
But the inference that they got together, and that's what I thought Your Honor was asking.

[02:09:10] Speaker 04:
I'm sorry, that they actually read?

[02:09:12] Speaker 04:
The notion that they actually read Patrick Andrews' letters and operated chapter and verse from it specifically, I think is an unfair inference because there's no evidence that they read the letters.

[02:09:24] Speaker 04:
Well, I'm getting confused.

[02:09:25] Speaker 01:
But it was perfectly fine to argue that they were all having their own playbook and were conspiring together out of that.

[02:09:30] Speaker 04:
I think it's fine to say that what they saw in the behavior of the witnesses, in the defense that was presented,

[02:09:37] Speaker 04:
was a conspiracy to put together false evidence.

[02:09:43] Speaker 04:
What's happening is what the juries have to evaluate is this defense case that the defense has put on.

[02:09:48] Speaker 04:
The government's position is these witnesses are lying to you.

[02:09:51] Speaker 04:
They're all lying to you.

[02:09:52] Speaker 04:
And you know they're lying to you because they're engaging in the kinds of patterns of behavior that a

[02:09:57] Speaker 04:
a witness called by the defense has suggested is okay to do to try to get past the government's case.

[02:10:03] Speaker 05:
So can I put it in the following way?

[02:10:04] Speaker 05:
So suppose that what counsel does is argues the following.

[02:10:08] Speaker 05:
Look, we've argued this entire case that all these people were in cahoots with one another.

[02:10:13] Speaker 05:
This was a nefarious conspiracy that

[02:10:15] Speaker 05:
transpired over the course of years, and here's the various things that they did in coordinated fashion.

[02:10:21] Speaker 05:
It's no surprise that they would also have a coordinated outlook on how to defend themselves in the event that their actions were uncovered.

[02:10:29] Speaker 05:
And here's the source of things that they might do.

[02:10:32] Speaker 05:
And then the last step is, and you know what?

[02:10:35] Speaker 05:
We don't even have to ask about that, whether that's possible to infer, because we actually have something that shows that they knew what they were doing.

[02:10:41] Speaker 05:
And here's some letters that show that there was in fact a coordinated strategy.

[02:10:44] Speaker 05:
Doesn't that last

[02:10:45] Speaker 05:
piece of it add materially to the suggestion that they might well conspire and confederate on how to put together a coordinated defense strategy to say, in fact, they had a guide on how to do it.

[02:11:00] Speaker 04:
And I know I'm sort of slicing hairs here, but it would be okay to say

[02:11:06] Speaker 04:
And you know, because here's a defense witness that the defense called, that this is the kind of things people in the jail talk about to cook up a defense.

[02:11:13] Speaker 04:
And all these people were in the jail together.

[02:11:15] Speaker 04:
And we know from the defendant's own testimony that the walls of the jail are permeable and that all this information gets transmitted.

[02:11:21] Speaker 04:
So the fact that Patrick Andrews, a defense witness, is talking about doing all these things, and you've seen all these things happening in the trial,

[02:11:28] Speaker 04:
You can certainly infer from that that they all got together and cooked this up.

[02:11:32] Speaker 04:
That, I think, would be perfectly appropriate.

[02:11:34] Speaker 05:
I hear what you're saying.

[02:11:36] Speaker 04:
So to the extent that it went beyond that, I can't really defend that.

[02:11:41] Speaker 04:
But I can say that it's a small step.

[02:11:44] Speaker 04:
And that small step is not prejudicial error in this case.

[02:11:47] Speaker 05:
That's my question is how small the step is.

[02:11:48] Speaker 05:
Because I think in your brief, you already say that it's problematic if it went the extra step.

[02:11:53] Speaker 05:
And so one material question for us is how big of a step is that from what was in fact argued?

[02:11:57] Speaker 04:
And I would say on that point, Your Honor, I believe this really was a strong case.

[02:12:01] Speaker 04:
I know the defendants think otherwise because they were all cooperating witnesses.

[02:12:04] Speaker 04:
The jury credit those cooperating witnesses.

[02:12:06] Speaker 04:
And once you credit them, there were a lot of them.

[02:12:09] Speaker 04:
There was a lot of evidence here.

[02:12:11] Speaker 04:
You also have on the specific issue of the misconduct, the jury saw unbelievable things on the parts of the defendants in this trial.

[02:12:19] Speaker 04:
They saw Dion Oliver fire his attorney so that he could cross-examine his ex-girlfriend pro se, and then we hire them for closing arguments.

[02:12:27] Speaker 04:
They saw McGill throw up his shirt and reveal his stunt belt.

[02:12:33] Speaker 04:
They had defense witnesses that were impeached left, right, and every which way with all sorts of information.

[02:12:40] Speaker 04:
That added component, I think, would not have added very much to how the jury viewed the government's evidence or the defense's evidence, quite frankly, because the jury saw it all.

[02:12:50] Speaker 04:
And this really was a unique trial in that sense.

[02:13:01] Speaker 05:
Thank you.

[02:13:03] Speaker 05:
Appellant's Council doesn't have a rebuttal time, but we'll give everybody a little bit of rebuttal time since we went substantially over, and I guess we'll do it in sort of proportional fashion.

[02:13:10] Speaker 05:
So we start with Mr. Smith and start out with three minutes for you, and we'll see what goes.

[02:13:16] Speaker 05:
Thank you, Your Honor.

[02:13:17] Speaker 08:
We would agree this is a unique trial, unlike one any of us have ever seen.

[02:13:23] Speaker 08:
If one juror expressing fear of the unknown is enough, God help us all on the Sixth Amendment rights.

[02:13:31] Speaker 08:
Because that accusation can be made

[02:13:34] Speaker 08:
This notion of, I don't know what he's doing, can be made by any majority looking to get rid of a juror.

[02:13:57] Speaker 08:
He was talking about how if he wrote something of his own on blank pieces of paper, there couldn't possibly be anything improper about it.

[02:14:05] Speaker 08:
But then he goes on.

[02:14:06] Speaker 08:
He says, I mean, obviously, it might raise a question of other jurors of what he was doing, but I don't think it would.

[02:14:12] Speaker 08:
As long as it didn't relate to the case, it wouldn't be a problem.

[02:14:16] Speaker 08:
So the mere notion that other jurors might wonder what he's doing

[02:14:22] Speaker 08:
It doesn't raise a safety concern.

[02:14:25] Speaker 08:
And this notion of the fear of the unknown.

[02:14:26] Speaker 08:
One person, government talked about how all the jurors felt this.

[02:14:31] Speaker 08:
The only word of fear or concerns about come from one juror, number 10.

[02:14:36] Speaker 08:
And let's see where this came from.

[02:14:37] Speaker 08:
This whole notion of inquiring came from a meeting between juror 12, the anti-defense juror, and juror 10, who had confronted juror 9 about how he was trying to cause a hung jury.

[02:14:50] Speaker 08:
That's the two people that lead to all this, and those are the only two people that say anything negative about true or not.

[02:14:58] Speaker 08:
Let's look at the Symington case.

[02:15:00] Speaker 08:
Now, let's get back to Brown.

[02:15:02] Speaker 08:
Here's what Simonton says.

[02:15:04] Speaker 08:
In Simonton, there was a finding that the holdout's dismissal was not due to his view on the merits.

[02:15:11] Speaker 08:
But the Court of Appeals still reversed.

[02:15:13] Speaker 08:
They said the district court could not have firmly been convinced of this because the record showed at least there was a reasonable possibility that it was an impetus.

[02:15:23] Speaker 08:
Not the impetus for the removal, but an impetus.

[02:15:27] Speaker 08:
That's the standard.

[02:15:29] Speaker 08:
Does the record reflect

[02:15:30] Speaker 08:
a possibility or reasonable possibility that the impetus for the removal was based on the juror's view of the merits.

[02:15:40] Speaker 08:
And when this impetus arose from a meeting between juror 12 and juror 10 alone, there's of course a possibility of that and a reasonable one.

[02:15:50] Speaker 08:
And in fact, the court noted

[02:15:53] Speaker 08:
in Simington, that even if the jurors may not think so, a juror's difficulties with others can manifest itself in challenges.

[02:16:01] Speaker 08:
In this dismissal, and more importantly, the inquiry was not sufficient.

[02:16:12] Speaker 08:
I noticed that I'm low on time.

[02:16:13] Speaker 08:
I didn't want to just say briefly

[02:16:17] Speaker 08:
The stepping into the jury room, Judge Lambert said this juror was sitting on the back wall, quote, just as the testimony was yesterday.

[02:16:26] Speaker 08:
His personal observations clearly affected his credibility findings and were directly related to it.

[02:16:33] Speaker 08:
The record reflects at least a possibility that the request was removed.

[02:16:39] Speaker 09:
I'm sorry?

[02:16:52] Speaker 08:
My recollection of the record, although I know the government counsel said that, my recollection of the record is juror 10 said he spoke on the back wall, and juror 9 was not specifically asked about that, but I would defer to the record.

[02:17:09] Speaker 08:
This record discloses a positive motivation by both jurors 10 and 12 to get juror 9 kicked off.

[02:17:15] Speaker 08:
In this court, if you don't stand up for holdouts,

[02:17:20] Speaker 08:
The Sixth Amendment is not going to be the same.

[02:17:22] Speaker 08:
Jurors like Geronine need your help because otherwise the notion of being a holdout with all the pressures and bullying that goes on in the jury room, if you give two jurors the chance to sit down and come up with accusations like this and have where there is a reasonable possibility that there

[02:17:43] Speaker 08:
that the request to remove the juror comes from his view of the merits.

[02:17:47] Speaker 08:
And that's what we have here.

[02:17:49] Speaker 08:
Then under Brown, you must not remove that juror.

[02:17:53] Speaker 08:
This court's law is clear.

[02:17:55] Speaker 08:
There was never a finding that there was no possibility.

[02:17:58] Speaker 08:
And because of that, this court needs to reverse.

[02:18:02] Speaker ?:
Thank you.

[02:18:09] Speaker 05:
Mr. Hart, we'll give you one minute as a proportional exercise.

[02:18:14] Speaker 07:
I must confess to the failure in my initial presentation, one of my jobs was to plant the seed with this court about the overwhelming evidence defense that the government usually uses, and for instance, the overview issue.

[02:18:29] Speaker 07:
The argument, fallback argument goes, well, there's overwhelming evidence, so any mistake is harmless.

[02:18:35] Speaker 07:
I want to ask this court to consider

[02:18:39] Speaker 07:
that as we presented it in our brief, we say it was a case of trial by rumor and self-serving stories.

[02:18:49] Speaker 07:
The government says overwhelming.

[02:18:51] Speaker 07:
Well, we say potato.

[02:18:52] Speaker 07:
They say potato.

[02:18:53] Speaker 07:
I know that doesn't help the court.

[02:18:54] Speaker 07:
So what I'm going to ask the court to do is look at the appellant's initial brief.

[02:18:59] Speaker 07:
We devoted a large amount of very precious words to describe to the court what the government evidence was, and it consisted almost entirely of cooperating individuals, and we listed for the court why those could not be believed.

[02:19:15] Speaker 07:
And we suggested to the court, this is not a case of overwhelming evidence.

[02:19:19] Speaker 07:
It should not be used as an excuse for errors.

[02:19:27] Speaker 05:
Mr. Gilbert, two minutes.

[02:19:32] Speaker 06:
I only want to address the point about what the terms of ready, willing, and able, what they brought to the table, what the defendants were up to, all comments made by the government council in both their initial closing and the rebuttal closing.

[02:19:47] Speaker 06:
I just want to point out that although it's true that some of the things about Ronald Alfred were discussed that way in advance, and there was a specific instruction, the whole business about his dealing with Martinez, Alpo, that was not disclosed.

[02:20:04] Speaker 06:
There was no rulings on that, and yet that was also going into

[02:20:09] Speaker 06:
and I list this in our brief at page 139, shows you what he was up to.

[02:20:13] Speaker 06:
He was ready and able to join the conspiracy.

[02:20:16] Speaker 06:
He brought a lot to the table with his experiences.

[02:20:18] Speaker 06:
They're specifically referring his dealings with Martinez.

[02:20:21] Speaker 06:
Same thing with McGill very briefly, again the same page, after they've talked.

[02:20:26] Speaker 06:
They come back.

[02:20:27] Speaker 06:
I mean, they've talked about both of these things in McGill twice.

[02:20:30] Speaker 06:
They come back and they say that he did some violence side by side with Gray and Moore, and that tells you what these defendants were up to.

[02:20:39] Speaker 06:
And I suggest to you that maybe you could construct a proper

[02:20:43] Speaker 06:
explanation to the jury as to how that should be considered.

[02:20:47] Speaker 06:
In this case, with McGill, the government can't, they concede error, but even with Ronald Alfred, and of course all the other stuff that was never mentioned, all the teenage drug dealing, all the admission of the tax forms and so forth, you know, there was never any specific guidance to the jury about what they were supposed to do with that.

[02:21:12] Speaker 05:
And last but not least, also two minutes.

[02:21:16] Speaker 12:
Thank you, Your Honor.

[02:21:18] Speaker 12:
With a last name like Loretta, I'm sensitive to proper pronunciation.

[02:21:23] Speaker 12:
I say that because I'm curious about your question to Government Counsel Judge Srinivasan.

[02:21:28] Speaker 12:
I hope I pronounced that correctly.

[02:21:29] Speaker 05:
You did.

[02:21:30] Speaker 12:
Thank you.

[02:21:32] Speaker 12:
When you mentioned that there could be a process of identifying

[02:21:40] Speaker 12:
points in a case, whether something is found, whether there's a connection between two defendants, whether government counsel can argue, look, you can call into question what that witness is saying.

[02:21:55] Speaker 12:
You can doubt the attack that was made on that witness.

[02:22:01] Speaker 12:
I agree.

[02:22:02] Speaker 12:
In this case, the interesting thing is that we focus on the playbook and what was said and how it was said and how it permeated the closing argument.

[02:22:12] Speaker 12:
But the very first step towards that playbook is really an attack on the constitutional right of a defendant to confront witnesses.

[02:22:23] Speaker 12:
Because if defense counsel all get up and attack a cooperating witness,

[02:22:30] Speaker 12:
We're not going to try and jump on each other's questioning, but it is not fair for government counsel to say, boy, you saw what they did.

[02:22:39] Speaker 12:
They really just hammered that guy.

[02:22:41] Speaker 12:
Well, that's OK.

[02:22:43] Speaker 12:
They can say that they hammered him.

[02:22:44] Speaker 12:
But to say that they hammered him because they got together and they colluded, and that collusion is connected to fraud,

[02:22:54] Speaker 12:
That's where the problem was.

[02:22:56] Speaker 12:
So even before we get to the badness of the playbook, I think the government closing argument started to attack the constitutional right of each of our clients to question that.

[02:23:08] Speaker 12:
And if I just could say one more thing, we had the opportunity, given the court's request last Friday, we kind of went back and detailed everything in that argument, more so than before.

[02:23:21] Speaker 12:
But we came up with some stats.

[02:23:23] Speaker 12:
There were 54 instances where government counsel made specific reference to a playbook, to a false defense, to defense attorneys making a false presentation, to a script, to a chapter.

[02:23:42] Speaker 12:
Government counsel in their argument, in their brief, said that perhaps maybe the initial part of the argument was the one that really kind of got out of line.

[02:23:54] Speaker 12:
It's not the case.

[02:23:55] Speaker 12:
There was lunchtime.

[02:23:57] Speaker 12:
And when lunchtime finished, everybody came back.

[02:24:00] Speaker 12:
Nice to see everybody again, government counsel said.

[02:24:03] Speaker 12:
Let me bring you back first things out of his mouth playbook.

[02:24:07] Speaker 12:
So those 54 instances, when I argue that it permeated this argument, are supported in the record.

[02:24:15] Speaker 12:
In the joint appendix, they're all included in there.

[02:24:18] Speaker 12:
I thank the court.

[02:24:19] Speaker 05:
Thank you.

[02:24:20] Speaker 05:
Court will take a recess, short recess.

[02:32:39] Speaker 02:
Stand please.

[02:32:55] Speaker 02:
Individual issues, appellate presentation.

[02:32:58] Speaker 02:
Keith McGill, issues 7 and 11, Mr. Gilbert.

[02:33:02] Speaker 02:
Dion Oliver, issues 14 and 15, Mr. Smith.

[02:33:05] Speaker 02:
Franklin Seegers, issues 18 and 20, Mr. Retireta.

[02:33:11] Speaker 02:
Kenneth Simon Simmons, issues 22 and 25, Mr. Hart.

[02:33:16] Speaker 02:
James Alford, issues 28, Ms.

[02:33:19] Speaker 02:
Davis.

[02:33:20] Speaker 02:
And Ronald Alford, issues 30A and 30D, Gregory Stuart Smith.

[02:33:27] Speaker 06:
Thank you.

[02:33:28] Speaker 06:
Again, may it please the Court.

[02:33:29] Speaker 06:
My name is Richard Gilbert.

[02:33:30] Speaker 06:
I represent Keith McGill.

[02:33:32] Speaker 06:
I've asked to argue very briefly two issues.

[02:33:36] Speaker 06:
One, what the proper remedy for sentencing remand would be, should you get to that point.

[02:33:42] Speaker 06:
And also a question about Mr. McGill's right to reclaim his right of presence in the courtroom.

[02:33:50] Speaker 06:
Let me discuss – I've asked to save a few minutes for rebuttal.

[02:33:53] Speaker 06:
I don't know if that's going to work out.

[02:33:54] Speaker 06:
Let me just say with request to sentencing, my request to you is that you order a de novo resentencing because the government's admitted several maximum sentences

[02:34:07] Speaker 06:
We agree or we suggest there's an apprentice violation.

[02:34:10] Speaker 06:
There's a sentencing guidelines dispute for you to resolve.

[02:34:16] Speaker 06:
Then there's the whole issue of the fact the judge didn't even respond to arguments to not follow the guidelines.

[02:34:26] Speaker 06:
require him to think about that, not to justify what he did.

[02:34:31] Speaker 06:
Correct.

[02:34:32] Speaker 06:
There's something a little unseemly about saying, OK, we're going to send it back to him, and he's just now going to tell us without giving us a chance to respond.

[02:34:40] Speaker 06:
But let me just add one other point.

[02:34:41] Speaker 06:
There's a certain amount of judicial efficiency in de novo resentencings, not only for Mr. McGill, but even to a lesser degree to other defendants, because since this trial, there's been some

[02:34:52] Speaker 06:
significant changes in the sentencing guidelines.

[02:34:55] Speaker 06:
One, changing the crack powder cocaine sentencing guideline ratios.

[02:35:02] Speaker 06:
And then, of course, most recently, changing the sentencing guideline structure altogether.

[02:35:07] Speaker 06:
And both of those are retroactive.

[02:35:11] Speaker 06:
And if you send it back, then obviously the trial judge can deal with those at the time.

[02:35:16] Speaker 06:
Otherwise, if you don't, then it becomes a separate pleading that's being handled by the Federal Defender Service.

[02:35:23] Speaker 06:
What I also like to, of course, talk about is Mr. McGeele's presence in the courtroom.

[02:35:29] Speaker 06:
We recognize that trials do involve human beings, and of course, that includes judges.

[02:35:37] Speaker 06:
And I don't think there's any question that Judge Lamberth was

[02:35:40] Speaker 06:
upset at Mr. McGill's interruptions and extremely angry at Mr. Gill's subsequent revelation of the stunt belt.

[02:35:51] Speaker 06:
We do not suggest that Judge Lamberth was wrong to have Mr. McGill removed from the courtroom based on his outbursts and certainly by the time he revealed the stunt belt.

[02:36:02] Speaker 06:
I can understand.

[02:36:04] Speaker 06:
We do not contest the judge properly removed him.

[02:36:07] Speaker 06:
But removal from the courtroom is intended to prevent further disruption.

[02:36:14] Speaker 06:
It is not intended to punish the defendant for what the defendant has done.

[02:36:20] Speaker 06:
And that's where the reason to reclaim the right

[02:36:24] Speaker 06:
comes in because the Supreme Court has made it clear that a defendant should, under most circumstances, have a right to reclaim his right to be president if he shows he can comply.

[02:36:35] Speaker 06:
And I think that's what happened with Mr. McGill.

[02:36:38] Speaker 06:
Remember, he comes back into the courtroom

[02:36:40] Speaker 06:
He's allowed to be there except when any deed of the jury collectively or during the individual barter of the jurors, he's not allowed to be there.

[02:36:49] Speaker 06:
He's there.

[02:36:50] Speaker 06:
He sits through the judge denying important instructions that his counsel wanted.

[02:36:57] Speaker 01:
Was he there for his sentence?

[02:37:00] Speaker 01:
Yes, of course he was there for the sentence.

[02:37:01] Speaker 01:
Okay, I just want to make sure.

[02:37:03] Speaker 06:
Yeah, I'm just taking it through the trial.

[02:37:04] Speaker 06:
He was not permitted to be present, really, essentially, from any time after he revealed the stunt belt.

[02:37:10] Speaker 01:
So he wasn't there for the, obviously he was not there then for the verdict, Regan, though?

[02:37:13] Speaker 06:
Correct.

[02:37:16] Speaker 06:
I think it's important, when I said, you know, this deals with human beings, it also deals with defendants as human beings.

[02:37:22] Speaker 06:
And I think that Mr. McGill's counsel was right when she explained how frustrated he was.

[02:37:27] Speaker 06:
That doesn't excuse his behavior, but it does give the judge a reason, or should have given the judge a reason, to say, OK, but he's calmed down now.

[02:37:35] Speaker 06:
Can he behave?

[02:37:36] Speaker 06:
And he did behave in the courtroom.

[02:37:38] Speaker 06:
It was only, you know, but then the judge says, no, you don't get a chance.

[02:37:42] Speaker 06:
This is one strike, and you're out.

[02:37:44] Speaker 05:
And I respectfully suggest... It seems like the trial court's in a little bit of a dilemma here, because if the trial judge readmits a cantankerous person into the courtroom, then you run the risk of potentially inviting a mistrial at the end of the proceedings.

[02:38:02] Speaker 05:
And so I can see why doing so in the presence of the jury is a particular cause for concern on the part of the trial judge.

[02:38:08] Speaker 05:
And he's trying to monitor the courtroom because he's concerned that another outburst might occasion a motion for mistrial.

[02:38:16] Speaker 06:
Well, I think the stun belt, there's no question.

[02:38:20] Speaker 06:
Now, that's obviously not our issue.

[02:38:22] Speaker 06:
And it's not one that we're going to argue today unless you have questions of it.

[02:38:25] Speaker 06:
But there's no question the stun belt provided additional complications than simply the outburst.

[02:38:32] Speaker 06:
But in reality, of course, keeping McGill out of the courtroom, and the co-counsel, I think, have an argument that that just emphasized that something pretty serious was going on, because McGill couldn't even come back in the courtroom for it.

[02:38:44] Speaker 01:
Can I clarify one?

[02:38:44] Speaker 01:
I just want to clarify the impact of the exclusion.

[02:38:47] Speaker 01:
So this was near the end of rebuttal that he went out.

[02:38:51] Speaker 01:
Did the judge, my recollection is, did they do the instructions the next day?

[02:38:55] Speaker 06:
Yes.

[02:38:56] Speaker 01:
OK.

[02:38:56] Speaker 06:
In fact, they discussed the instructions, some of it, because

[02:39:00] Speaker 01:
So he's taken out, but that day is about over.

[02:39:03] Speaker 01:
And then all the juror instructions were completed the next day.

[02:39:07] Speaker 01:
I don't know how long they went on for.

[02:39:09] Speaker 06:
I believe so.

[02:39:10] Speaker 06:
They were all started.

[02:39:12] Speaker 06:
They were started the next day.

[02:39:13] Speaker 06:
I don't recall right offhand whether, I think he finished it all in one day.

[02:39:16] Speaker 01:
OK.

[02:39:16] Speaker 01:
And so that?

[02:39:17] Speaker 06:
He missed all of that.

[02:39:18] Speaker 01:
Right.

[02:39:19] Speaker 01:
So he missed that day.

[02:39:20] Speaker 01:
And then he missed the voir diers about the juror removal and the verdict.

[02:39:26] Speaker 01:
Verdicts.

[02:39:26] Speaker 01:
Yeah.

[02:39:28] Speaker 01:
Okay.

[02:39:28] Speaker 01:
Do we have a sense of how much time that ended up to?

[02:39:31] Speaker 06:
I don't, but it added up to some pretty critical points in the trial, frankly, and that's why I think this court and Gordon found, talked about the prejudice that the jurors might speculate.

[02:39:43] Speaker 06:
Well, why isn't he here?

[02:39:45] Speaker 06:
They might know in this case that he had an outburst, but why hasn't he been allowed to come back?

[02:39:49] Speaker 06:
Because remember, I believe it was Simmons had had an outburst, had been removed and was permitted to come back.

[02:39:55] Speaker 01:
And how does a district court balance the rights of the individual to return with the rights of all the other defendants?

[02:40:04] Speaker 01:
There's argument in this case that your client's outburst had prejudicial impact on all the other defendants.

[02:40:13] Speaker 01:
How does a district court balance the right to return with the obligation to protect all of the other defendants against the risk of outburst?

[02:40:24] Speaker 01:
Well, there's a lot of constitutional rights competing with each other right here.

[02:40:27] Speaker 06:
All right.

[02:40:27] Speaker 06:
Well, of course, all what's done is done.

[02:40:29] Speaker 06:
All right.

[02:40:30] Speaker 06:
The stunt belt was revealed.

[02:40:31] Speaker 06:
The judge handled that the way he thought he should handle it.

[02:40:34] Speaker 06:
You'll decide the propriety of that with respect to the other defendants.

[02:40:39] Speaker 06:
But I think that the Supreme Court jurisprudence indicates that, look, the presence in the courtroom is really a vital right.

[02:40:49] Speaker 06:
McGill forfeited that right for that day, but again, he can't be continually punished.

[02:40:55] Speaker 06:
And for the judge to say, oh, this is nothing you could say to convince me that he wouldn't do that again, I don't think that the case law permits him to do that in the absence of him doing it again.

[02:41:05] Speaker 06:
It's clear that if there's repeated misconduct, you have to go out.

[02:41:09] Speaker 06:
No, OK, now I'm going to be a good boy.

[02:41:11] Speaker 06:
I can come back in.

[02:41:12] Speaker 06:
Oh, then I'm going to have an outburst.

[02:41:13] Speaker 06:
Out you go.

[02:41:14] Speaker 06:
Again, at a certain point, the judge can stop.

[02:41:15] Speaker 06:
But I'm not aware of any case where it's one strike and you're out.

[02:41:19] Speaker 01:
Well, I think, I suspect, and I don't mean to put words in anyone's mouth, but the government is going to get up here and say, this wasn't his first strike.

[02:41:26] Speaker 01:
He'd been saying some stuff in the courtroom and been told a number of times that he needed to be quiet.

[02:41:33] Speaker 06:
And I think that was, that's probably true of a number of the defendants.

[02:41:36] Speaker 01:
Not all of them.

[02:41:37] Speaker 01:
I know that's another issue.

[02:41:38] Speaker 01:
This wasn't his first strike.

[02:41:40] Speaker 06:
But it may have been his first time being told, now you're out.

[02:41:46] Speaker 06:
You don't get to see the jury.

[02:41:48] Speaker 06:
You don't get to see what happens in this trial.

[02:41:50] Speaker 06:
You don't even get to hear what happens in this trial unless you let me tape you with duct tape.

[02:41:56] Speaker 06:
And so that's the point that we're trying to make, is that

[02:42:00] Speaker 06:
the judge needed to give him under the I think the case law the judge needed to give him an opportunity to reclaim his presence in the courtroom when he behaved appropriately in the courtroom out of the presence of the jury there was no reason for the judge at that time to conclude that he was never going to

[02:42:18] Speaker 06:
that he was never going to conform his behavior.

[02:42:21] Speaker 06:
Again, the remover from the court is designed to prevent the disruption.

[02:42:26] Speaker 06:
It is not designed to punish the defendant, and we respectfully suggest the judge's comments indicate that's exactly what happened.

[02:42:47] Speaker 11:
Good afternoon.

[02:42:48] Speaker 11:
I'm David Smith, counsel for Dion Oliver.

[02:42:53] Speaker 11:
I've chosen two of Dion's individual issues to argue, and I don't mean to put aside the first issue, which related to

[02:43:08] Speaker 11:
the improper cross-examination of Oliver by the government using didn't she lie questions throughout the cross-examination.

[02:43:19] Speaker 11:
But I don't even have time to go through the two issues I chose with just four minutes and two.

[02:43:27] Speaker 11:
I think, first of all, I would just urge the Court to look at these two issues, indeed all three of these issues, very carefully because I believe

[02:43:37] Speaker 11:
These are two of the strongest issues in the case, although it's an individual issue.

[02:43:43] Speaker 11:
And the government's behavior with respect to one of them, the first issue, is really one of the most outrageous things that happened in the case.

[02:44:00] Speaker 09:
With respect to the first the Richard Simmons murder I do not make an insufficiency claim

[02:44:16] Speaker 11:
Right.

[02:44:18] Speaker 11:
I mean, the nub of what happened here is the government had what I call a cockamamie theory that when Oliver's paramour, this young woman, Victoria Robles, who was the key witness against him in the case,

[02:44:38] Speaker 11:
when she testified in the grand jury about a completely unrelated murder of a 15 or 16-year-old boy named Demetrius Green, that the government's theory was she was mistaken.

[02:44:55] Speaker 11:
She was actually talking about the murder of Richard Simmons in a completely different quadrant of DC, who was not a boy, not even close to being a boy.

[02:45:08] Speaker 11:
And the government deliberately not just made a mistake.

[02:45:17] Speaker 11:
I accuse the government of bad faith here.

[02:45:21] Speaker 11:
There was no basis for their theory at all.

[02:45:25] Speaker 11:
And number two, they knew there was no basis, and as a result, they

[02:45:31] Speaker 11:
actually got permission from the judge to distort the evidence, to deliberately distort the evidence that was presented to the jury so as to persuade the jury that Ms.

[02:45:43] Speaker 11:
Robles was actually testifying about the Simmons murder rather than the

[02:45:49] Speaker 11:
the Demetrius Green murder.

[02:45:51] Speaker 11:
And the proof of that is that they deliberately, and we go through this in great detail in the brief, they told the judge, we want to exclude from the jury's consideration the fact that the murder happened on Forrester Street, which is in a completely different quadrant of D.C.

[02:46:07] Speaker 11:
than the Simmons murder.

[02:46:10] Speaker 11:
And the judge said, that's fine, go right ahead and do that.

[02:46:13] Speaker 01:
I'm having a little trouble understanding

[02:46:15] Speaker 01:
how this ends up being a constitutional problem because you had the full grand jury testimony and you had they weren't they didn't have the capacity to keep something from the jury because it hadn't been kept from you it was their strategy called maybe not

[02:46:32] Speaker 11:
Not me, but the defense counsel had it.

[02:46:35] Speaker 01:
Yes.

[02:46:35] Speaker 01:
Well, you're staying in for them.

[02:46:36] Speaker 01:
So whether it was a good government or not, there was nothing to keep this from the jury other than strategic decision by defense counsel.

[02:46:46] Speaker 11:
Well, my recollection of the record is that he did ask Miss Robles on cross about, he said, didn't this murder happen on Forrester Street?

[02:46:58] Speaker 11:
And she said, I can't remember.

[02:47:00] Speaker 11:
I can't remember, which may well have been true, that she couldn't remember.

[02:47:06] Speaker 01:
But then you go, well, here's your grand jury testimony.

[02:47:08] Speaker 01:
Let's refresh your mind.

[02:47:09] Speaker 01:
Nothing's kept from the jury, and I bet a good defense lawyer could get in that the government left that out.

[02:47:15] Speaker 11:
Certainly, that's a good point.

[02:47:16] Speaker 11:
And I seriously considered raising an issue about ineffective assistance based on precisely what Your Honor has pointed out.

[02:47:25] Speaker 11:
I didn't, only because,

[02:47:27] Speaker 11:
Despite the 311-page brief, we had to cut out an enormous number of our arguments and also to reduce the size of the arguments to get it even within 311 pages.

[02:47:40] Speaker 11:
That gives you an idea of what a circus trial this was with so many terrible errors.

[02:47:46] Speaker 11:
So it's not included, and you can leave it to Dion Oliver to raise that in the 2255.

[02:47:53] Speaker 11:
Dion Oliver has the mentality of an eight-year-old, he's not going to do very well on his 2255 by himself, where he doesn't have a lawyer to represent him.

[02:48:04] Speaker 11:
But I think it is

[02:48:09] Speaker 11:
ineffective assistance on its face.

[02:48:11] Speaker 11:
And I would ask the court to recognize that in the opinion.

[02:48:17] Speaker 11:
But the lawyer's failure to do what he should have done, Judge, doesn't excuse the government's conduct here.

[02:48:26] Speaker 11:
And it doesn't excuse the judge's decision to allow a patently misleading presentation to be made to the jury by the prosecution.

[02:48:35] Speaker 11:
The prosecutor made his intentions very clear.

[02:48:38] Speaker 11:
He said,

[02:48:39] Speaker 11:
I don't want the jury to be confused by a reference to Forrester Street.

[02:48:44] Speaker 11:
What kind of statement is that?

[02:48:47] Speaker 11:
The confusion was that his cockamamie theory would be discredited by the jury if they knew it didn't take place anywhere near the murder of Richard Simmons.

[02:49:00] Speaker 11:
And moreover, I mean, just look at it on its face.

[02:49:05] Speaker 11:
The Forrester Street murder

[02:49:08] Speaker 11:
was involved a 15 or 16 year old.

[02:49:15] Speaker 11:
Richard Simmons was not, he was a grown man.

[02:49:18] Speaker 11:
There's just no basis for the prosecutor's theory.

[02:49:24] Speaker 11:
So it's not a reasonable inference, that's the test.

[02:49:28] Speaker 11:
The prosecutor could not draw a reasonable inference that Robles's grand jury testimony was actually about the Richard Simmons murder.

[02:49:38] Speaker 11:
And of course, she was the star government witness.

[02:49:41] Speaker 11:
Why didn't he get her to say, oh, yeah, you're right.

[02:49:46] Speaker 11:
That was actually the Richard Simmons murder I was talking about.

[02:49:49] Speaker 11:
She never said that.

[02:49:53] Speaker 11:
And the prosecutor harped on this misleading evidence throughout the case against Dion Oliver in his cross-examination of Dion Oliver

[02:50:05] Speaker 11:
which we say in the first issue we raised was totally improper because of the is she lying questions, which are repeated over and over again, and summarizing the worst parts of the case against Oliver.

[02:50:25] Speaker 11:
He also mentioned it in his rebuttal argument, the same rebuttal argument in which he made the playbook argument that has rightly focused your attention on.

[02:50:42] Speaker 11:
You know, a very serious error.

[02:50:44] Speaker 11:
It's clearly prejudicial because as the description of the evidence shows, the government's murder case on Simmons was not strong at all.

[02:50:56] Speaker 11:
It certainly wasn't overwhelming.

[02:50:57] Speaker 11:
The government doesn't claim it was overwhelming, despite their general comments about the overwhelming evidence in the case.

[02:51:04] Speaker 11:
And so that ought to be reversed.

[02:51:09] Speaker 11:
And then when you combine that with the second issue that I want you to focus on... So can I ask you a question about the second issue since we're running a little short on time?

[02:51:18] Speaker 05:
Let me ask you a question about the second issue since we're running a little short on time, just on the second issue, which is this, that in more

[02:51:26] Speaker 05:
there's this question about the alternative of conspiracy and in Moore the court decided that there was a forfeiture because in the opening brief the conspiracy alternative was only dealt with in a footnote and I'm wondering whether that logic carries over to this case because in this case the alternative of conspiracy wasn't raised in the opening brief at all.

[02:51:51] Speaker 11:
I mean, our opening brief on appeal.

[02:51:53] Speaker 11:
Yes.

[02:51:55] Speaker 11:
No, well, what we suggested the court do is not even address what we call the Yates issue, because you don't have to.

[02:52:05] Speaker 11:
There's simply no evidence, none, zero, that

[02:52:11] Speaker 11:
It was reasonably foreseeable to Oliver that Reiner would use the gun that he had just borrowed from Oliver to shoot somebody right away.

[02:52:21] Speaker 05:
Okay, so you're accepting that the alternative conspiracy could afford a basis.

[02:52:26] Speaker 05:
You're just saying that the evidence is not sufficient even as to that.

[02:52:29] Speaker 11:
Absolutely.

[02:52:30] Speaker 11:
But we don't want to concede the eighth issue.

[02:52:33] Speaker 11:
We did address the eighth issue.

[02:52:35] Speaker 05:
In your reply brief?

[02:52:37] Speaker 11:
In our reply brief, correct, Your Honor.

[02:52:43] Speaker 11:
You know, I mean, we also argue in our reply brief that it was plain error to instruct the jury on the aiding and abetting, to give erroneous instruction on aiding and abetting, because the jury might well have convicted on the aiding and abetting theory

[02:53:06] Speaker 11:
We don't know, but it's a reasonable possibility.

[02:53:11] Speaker 11:
The government, in its argument on this issue, I believe, only talked about the aiding and abetting theory.

[02:53:18] Speaker 11:
So that's another reason to think that the jury might have convicted on the aiding and abetting theory.

[02:53:23] Speaker 11:
They didn't even address, in their argument, the Pinkerton theory, which they now put forward.

[02:53:30] Speaker 11:
The jury was instructed on it, but the government didn't argue it.

[02:53:33] Speaker 11:
So that's an important point.

[02:53:35] Speaker 11:
It makes sense to think that the jury would have convicted on the theory that the government argued rather than a theory they didn't argue.

[02:53:44] Speaker 11:
So that may – well, I don't know exactly what the facts were in the first – the Group 1 appeal more, so that may distinguish

[02:53:57] Speaker 11:
this case from war as well.

[02:54:00] Speaker 11:
But I mean, the government has essentially conceded that there wasn't sufficient evidence to convict on the aiding and abetting theory.

[02:54:08] Speaker 11:
They have explicitly said we were not challenging that.

[02:54:14] Speaker 11:
But there really is no more evidence to support the Pinkerton theory than the aiding and abetting theory.

[02:54:21] Speaker 11:
In fact, we say that all of the evidence presented by both sides in the case supported

[02:54:27] Speaker 11:
the defense theory that he didn't know what was about to happen.

[02:54:32] Speaker 11:
After all, and I mean, it's worth mentioning that he was best friends with Floyd, so there's no, I mean, and this testimony, I've never seen Dion Oliver cry, but there's testimony by the government's star witness, his girlfriend Robles,

[02:54:52] Speaker 11:
that he cried when he heard that, when he saw, when he was recounting how Floyd was shot and how shocked he was.

[02:55:01] Speaker 11:
That's the government's key witness against him testifying to that.

[02:55:04] Speaker 11:
Thank you.

[02:55:05] Speaker 11:
So there's really nothing to support that conviction.

[02:55:10] Speaker 11:
And we also have a spillover argument, which we think is a very strong spillover argument.

[02:55:17] Speaker 11:
It's also a retroactive, misjoinder argument.

[02:55:20] Speaker 11:
And we think it's

[02:55:22] Speaker 11:
It should be weighed in deciding whether to reverse the other murder, the Richard Simmons murder.

[02:55:29] Speaker 05:
We'll give you a little bit of time on rebuttal to spell this out.

[02:55:33] Speaker 05:
Thank you.

[02:55:46] Speaker 12:
the court.

[02:55:47] Speaker 12:
Issue 18 and issue 20 on behalf of Mr. Segers.

[02:55:51] Speaker 12:
Just briefly, just touch on a couple of points.

[02:55:54] Speaker 12:
The issue 18, the issue of Brady Giglio, specifically Lincoln Hunter and his mental evaluation and disciplinary report from the D.C.

[02:56:06] Speaker 12:
Department of Corrections.

[02:56:08] Speaker 12:
I think our brief lays it out.

[02:56:12] Speaker 12:
Clearly, I just want to mention that

[02:56:16] Speaker 12:
The importance of being able to have that habit with sufficient time, being allowed to use it, gained more significance because later on, in the government closing, the government used Lincoln Hunter and painted him as a weak victim that Segers and his counsel were beating up.

[02:56:40] Speaker 12:
That's at the Joint Appendix at 5404.

[02:56:42] Speaker 12:
So the significance of not being able to use that to confront Mr. Hunter on the stand to question him about whether he has propensity for violence, whether he has an attitude towards women, things like that.

[02:57:01] Speaker 12:
didn't allow the defense to.

[02:57:03] Speaker 09:
Didn't that have been true if the government had produced these reports at the outset, I mean in ample time?

[02:57:12] Speaker 09:
In other words, to the extent that you were caught in a sort of switcheroo position, to meet out with the justice as likely if the reports had been available weeks, months before trial.

[02:57:27] Speaker 09:
we still would have been in with that you're on the switcheroo on it.

[02:57:36] Speaker 12:
Well, I can tell you that it was a long trial.

[02:57:41] Speaker 12:
It was in January of the beginning of 2004.

[02:57:44] Speaker 12:
It was as defense government was putting on Mr. Hunter leading up to that series of witnesses and

[02:57:54] Speaker 12:
certainly if we would have had, the defense would have had that about a month or so before, we certainly would have been able to prep the line of questioning, we certainly would have been able to ask other witnesses about what they knew of Lincoln Hunter, because there was a government line of questioning that dealt with Lincoln Hunter, Diane Luther, their relationship, the relationship between them and Mr. Seeger, so it did

[02:58:22] Speaker 12:
leave the defense a little weakened probably.

[02:58:25] Speaker 05:
So the trial court found the evidence inadmissible, the reports inadmissible.

[02:58:29] Speaker 05:
And then how do you get to the second prong of radio reasonable probability if the evidence was inadmissible?

[02:58:35] Speaker 12:
Well, we disagree with the trial court's decision on that.

[02:58:39] Speaker 05:
And did you preserve, is there any appeal of the?

[02:58:42] Speaker 12:
Yes, yes.

[02:58:43] Speaker 12:
The appeal of the admissibility was noted.

[02:58:46] Speaker 12:
We objected to it at the time, and it's noted in the post trial motion.

[02:58:52] Speaker 05:
But is it in your appellate, did you appeal on that issue?

[02:58:58] Speaker 12:
I believe it was incorporated within the Brady Giglio argument.

[02:59:08] Speaker 01:
Can I ask you something on the Brady?

[02:59:11] Speaker 01:
The government in this case requested

[02:59:14] Speaker 01:
Yes, the prison records from, I assume it was the Bureau of Prisons, turned them all over, sort of did the normal things you're supposed to do under Brady with respect to these records.

[02:59:27] Speaker 01:
These just weren't, for whatever reason, weren't included by the Bureau of Prisons people.

[02:59:32] Speaker 01:
It's not that the government had anything they didn't turn over to you or the government didn't submit the appropriate request to the appropriate agencies.

[02:59:38] Speaker 01:
The government sort of did everything it was supposed to do.

[02:59:42] Speaker 01:
And at least the second note didn't have any notice that something was, any reasonable notice at least that something was missing.

[02:59:52] Speaker 01:
What case finds a Brady violation in that context?

[02:59:57] Speaker 12:
I can't tell the court that.

[03:00:00] Speaker 12:
I don't have one.

[03:00:01] Speaker 12:
I don't have one.

[03:00:02] Speaker 12:
I can say that as courts and cases have looked to Brady, there has been a continuing march towards

[03:00:12] Speaker 12:
not allowing government to say, look, just because Homeland Security has adopted, you're not going to be able to walk away from the fact that you should have known, you should have requested, you should have completed that analysis.

[03:00:27] Speaker 01:
No, I get that, if they should have requested, but here they did request.

[03:00:30] Speaker 01:
And they got a whole bunch of records, and you simply have this one couple, two particular records that weren't included, but there's no, at least I take it there's no argument from you that they should have realized something was missing.

[03:00:46] Speaker 01:
So you clearly don't have intent, but I'm not sure you even have.

[03:00:48] Speaker 01:
I mean, does Brady require at least some negligence on the part of the government in its inquiry?

[03:00:55] Speaker 01:
You know, to be honest, I don't know whether... Do we restrict liability if one document exists anywhere in the government?

[03:01:01] Speaker 12:
Yeah, do we go back to just a general analysis, a general intent type of thing, saying, hey, look, it's government, you should have known it should have been there?

[03:01:08] Speaker 12:
I can't answer that.

[03:01:10] Speaker 01:
There's no case law that you're aware of on that issue?

[03:01:13] Speaker 01:
No, no.

[03:01:15] Speaker 12:
The other issue, issue 20, deals with the sufficiency of the evidence, and I think I touched upon that a little bit when we were talking about the government closing.

[03:01:25] Speaker 12:
Mr. Siegers is in a particularly interesting position.

[03:01:31] Speaker 12:
As I noted, we have the narcotics conspiracy, a RICO conspiracy, firearm counts, drug counts.

[03:01:36] Speaker 12:
The drug counts, we asked the court to reverse those.

[03:01:41] Speaker 12:
The drug counts then spill over into the RICO counts and the RICO acts.

[03:01:49] Speaker 12:
I asked the court to look at the narcotics conspiracy, focus on the timing that the government alleged Mr. Seegers was supposed to have participated in that conspiracy.

[03:02:03] Speaker 12:
And if I may, very briefly, the instruction by the district court was November of 1996.

[03:02:11] Speaker 12:
The final instruction was November of 1996.

[03:02:14] Speaker 12:
There was no evidence that the government introduced a trial alleging November 96 activity on forward, with the exception of what they link up to.

[03:02:27] Speaker 12:
violence that occurred with Diane Luther and Lincoln Hutch.

[03:02:32] Speaker 12:
The only other evidence dealt with, 1995, and then there was the other crimes evidence of 1993.

[03:02:39] Speaker 12:
So with that, thank you for it.

[03:02:50] Speaker 07:
If it plays the court down as hard on behalf of Mr. Kenneth Simmons, I say that because we do have a number of Simmons in the case.

[03:02:57] Speaker 07:
I want to make clear that I represent Kenneth Simmons.

[03:03:01] Speaker 07:
I'm on the list for two issues.

[03:03:02] Speaker 07:
I'm going to combine them because they're basically the same, although they involve two different convictions.

[03:03:08] Speaker 07:
The first one is the RICO conspiracy.

[03:03:11] Speaker 07:
And the point I wish to make in my

[03:03:16] Speaker 07:
remaining three minutes is that the government relied in large part for Mr. Simmons' conviction on the testimony of Walter Fleming.

[03:03:26] Speaker 07:
Walter Fleming was convicted on a plea in Virginia for drug conspiracy.

[03:03:33] Speaker 07:
He claimed that Mr. Simmons, Kenneth Simmons, was one of his partners.

[03:03:39] Speaker 07:
We don't challenge that, as far as sufficiency goes.

[03:03:42] Speaker 07:
Our challenge is that the Fleming Kenneth Simmons conspiracy is not part of the Moore-Gray conspiracy.

[03:03:50] Speaker 07:
And we base that on several things.

[03:03:52] Speaker 07:
The government responds that, no, they were interdependent.

[03:03:56] Speaker 07:
They were part of the same conspiracy.

[03:03:58] Speaker 07:
They supported each other.

[03:03:59] Speaker 07:
The facts are that no witness ever claimed that.

[03:04:03] Speaker 07:
There were occasional sales, both from Moore-Gray and to Moore-Gray, of drugs.

[03:04:09] Speaker 07:
These occurred over many years.

[03:04:11] Speaker 07:
They hardly support the conclusion that they were a supplier or a purchaser for more grade.

[03:04:16] Speaker 07:
More importantly, Mr. Kenneth Simmons was never indicted in Virginia with Mr. Fleming.

[03:04:24] Speaker 07:
And significantly, if the court looks, an important part of the government's attempt to convict Kenneth Simmons was the introduction of wiretaps.

[03:04:34] Speaker 07:
These were wire intercepts made of the Fleming Kenneth Simmons conspiracy.

[03:04:40] Speaker 07:
They did contain conversations by Mr. Simmons, Kenneth Simmons, and Mr. Fleming that established a drug conspiracy.

[03:04:48] Speaker 07:
None of the other defendants in this case ever appeared on that wiretap.

[03:04:51] Speaker 07:
It was limited to Mr. Fleming and Mr. Simmons.

[03:04:54] Speaker 07:
But more importantly, and the point I wish to make is, these wiretaps were not disclosed to Mr. Simmons until the start of the trial in this case.

[03:05:03] Speaker 07:
The reason?

[03:05:05] Speaker 07:
The government says they just discovered them.

[03:05:07] Speaker 07:
Yet now they claim that they knew that the Fleming Kenneth Simmons conspiracy was an integral part of the Moore-Gray conspiracy for years before.

[03:05:17] Speaker 07:
Yet they never discovered the wiretaps that essentially proved them wrong in this.

[03:05:21] Speaker 07:
But that was their excuse for late disclosure.

[03:05:24] Speaker 07:
The point I wish to leave with the court is that Fleming, Kenneth Simmons is a separate drug conspiracy.

[03:05:31] Speaker 07:
Yes, they had some interaction.

[03:05:32] Speaker 07:
Yes, they knew each other.

[03:05:34] Speaker 07:
But if you look at the government's own witnesses, they say that Fleming and Moore, I mean, that Fleming and Kenneth Simmons were drug partners together.

[03:05:42] Speaker 07:
They had different suppliers.

[03:05:45] Speaker 07:
They had different customers.

[03:05:47] Speaker 07:
Occasionally, they interacted, but that does not make them interdependent.

[03:05:53] Speaker 07:
The other two points I wish to make is that the murders, both in the RICO conspiracy as racketeering acts and in the Vicar conviction, are for number one, the conspiracy to kill a person named Ra Ra, who supposedly killed Kenneth Simmons,

[03:06:14] Speaker 07:
little brother, but this occurred years before.

[03:06:16] Speaker 07:
The second one is a conspiracy to kill one of the Walker brothers and the actual death of one of the Walker brothers.

[03:06:24] Speaker 07:
This was a bar fight that Mr. Simmons wanted to take revenge on.

[03:06:29] Speaker 07:
I mention these facts because none of them support the RICO requirements for maintenance of an organization.

[03:06:36] Speaker 07:
The government's theory that this was done to maintain his position or reputation is a nice theory.

[03:06:44] Speaker 07:
They advance that in their brief, but there is absolutely no evidence to support that.

[03:06:48] Speaker 07:
No one testified to that.

[03:06:50] Speaker 07:
There were no documents about that.

[03:06:52] Speaker 07:
No evidence at all to support the theory that this was done to enhance his reputation in the organization.

[03:06:58] Speaker 07:
And that goes for both the RICO and the Vicar.

[03:07:01] Speaker 07:
I appreciate the Court's time.

[03:07:03] Speaker 10:
Thank you.

[03:07:10] Speaker 03:
Good morning.

[03:07:11] Speaker 03:
Good afternoon.

[03:07:11] Speaker 03:
May it please the Court.

[03:07:12] Speaker 03:
I'm Mary Davis.

[03:07:13] Speaker 03:
I represent James Alfred, who is an individual.

[03:07:16] Speaker 03:
I don't believe the Court has heard his name yet during the course of these arguments.

[03:07:21] Speaker 03:
I've raised a single issue on appeal, and that deals with whether or not there's sufficient evidence to convict James Alfred of the Thomas and Cardozo murders.

[03:07:29] Speaker 03:
In regard to the Thomas murder, the government argues there's circumstantial evidence to prove knowledge, and they raise the following factors.

[03:07:38] Speaker 03:
That James was aware of Ronald's troubles.

[03:07:41] Speaker 03:
Andrews testified that James would tell Ronald if he had seen Thomas or something like that.

[03:07:48] Speaker 03:
That James shot at Kerry Ball's brother, and that James had a motive to shoot Thomas because Thomas shot at James's girlfriend.

[03:07:56] Speaker 03:
We submit that none of these are proof that James knew that Ronald was going to have Thomas killed.

[03:08:02] Speaker 03:
The government points out that there were conversations about the plot to murder Thomas and they took place at Fresh Gear and that James was present during these conversations.

[03:08:13] Speaker 03:
And they cite to page 1991 of the Joint Appendix.

[03:08:17] Speaker 03:
However, that page discusses only that James, being at First Gear, he would come in and say that he saw Thomas.

[03:08:27] Speaker 03:
There was no testimony anywhere at the trial by any witness that James was present at any time when there was discussions concerning the plot to murder of Thomas.

[03:08:37] Speaker 03:
Moreover, even if James thought there might be something

[03:08:42] Speaker 03:
to be done to Thomas, there is no evidence submitted by any witness that that something was murder.

[03:08:48] Speaker 03:
And I believe the cases to Farrah from this circuit, Juan versus Allen from the Ninth Circuit, and the Salmon case from the Third Circuit, which are discussed in page 130 of the reply brief, require that there be proof that the defendant have knowledge of the specific crime.

[03:09:03] Speaker 03:
And that did not happen here.

[03:09:05] Speaker 03:
In this brief, the government says, well, if you can't convict him on aiding and bedding, there's Pinkerton.

[03:09:11] Speaker 03:
Pinkerton was never argued before the district court.

[03:09:14] Speaker 03:
More importantly, there is no argument on Pinkerton in the government's brief.

[03:09:19] Speaker 03:
Therefore, we submit that they are procedurally blocked from relying on this theory.

[03:09:24] Speaker 03:
But even if the court were to consider this, we submit that there's no argument in the government's brief in district court.

[03:09:32] Speaker 03:
There's no argument in the district court or in the brief before this court.

[03:09:36] Speaker 03:
The government only states that, well, if there was no proof of aiding and abetting, there was Pinkerton.

[03:09:43] Speaker 03:
but there's no argument about how Pinkerton applies.

[03:09:46] Speaker 03:
It's one sentence.

[03:09:48] Speaker 03:
And I believe there's numerous cases that say you can't raise that as an issue without an argument.

[03:09:53] Speaker 03:
There's no argument to support their Pinkerton theory.

[03:09:56] Speaker 03:
Even if this court were to consider Pinkerton, we would submit that there is no evidence that the act was in furtherance of the conspiracy, that it was part of the conspiracy, because the government,

[03:10:07] Speaker 01:
The jury was instructed on Pinkerton liability for this murder?

[03:10:12] Speaker 03:
They were instructed.

[03:10:13] Speaker 01:
For this murder.

[03:10:14] Speaker 03:
They were instructed, but there was no argument.

[03:10:16] Speaker 03:
And there's nothing before this court.

[03:10:18] Speaker 01:
And there's no argument from the government to the jury?

[03:10:21] Speaker 03:
To the jury.

[03:10:22] Speaker 03:
And there's no argument from the government to this court to support Pinkerton.

[03:10:27] Speaker 03:
What the government does say, however, is that the whole dispute regarding Thomas had to do with, I believe it was Terry Ball stealing things from Ronald's store.

[03:10:37] Speaker 03:
That was not part of the conspiracy.

[03:10:39] Speaker 03:
The conspiracy was a drug conspiracy, and there was absolutely no evidence to support that the dispute was related to the conspiracy.

[03:10:48] Speaker 03:
Therefore, even if this court considers Pinkerton, there's nothing to support the Pinkerton theory on any level.

[03:10:58] Speaker 03:
In regard to the Cardozo murder, we argue that there was only mere presence.

[03:11:03] Speaker 03:
The government claims there is more than mere presence because on one occasion, James told Gray he saw Cardoza on Georgia Avenue.

[03:11:11] Speaker 03:
However, there's no testimony about when or where or anything about it, just that he saw him.

[03:11:16] Speaker 03:
The government also said that James alerted Gray that he saw Cardoza at Republic Gardens, which I believe is a nightclub.

[03:11:24] Speaker 05:
Can I just ask you on the prior murder?

[03:11:26] Speaker 05:
Yes.

[03:11:27] Speaker 05:
There was testimony that's recounted in the joint appendix at 2484 and 85.

[03:11:33] Speaker 05:
that says, we got Gangster to hit Froggy.

[03:11:39] Speaker 03:
Yes.

[03:11:39] Speaker 05:
And if it's we, I take it everybody agrees on who the we is.

[03:11:42] Speaker 03:
No.

[03:11:43] Speaker 03:
You don't agree?

[03:11:45] Speaker 03:
Well, no.

[03:11:45] Speaker 03:
I mean, first off, this was a statement supposedly made two or three years after the murder.

[03:11:52] Speaker 03:
And to say we doesn't mean I. I can go back to my office and say, we argued the juror issue, and we argued 44B.

[03:12:00] Speaker 03:
But I did not argue 44B.

[03:12:03] Speaker 03:
I am part of the group, maybe.

[03:12:04] Speaker 03:
But that does not mean that I did anything, that I had any prior knowledge that it was going to happen, only that the group

[03:12:12] Speaker 03:
did something.

[03:12:13] Speaker 03:
It doesn't mean that Mr. Alfred, Mr. James Alfred, did anything.

[03:12:17] Speaker 05:
Well, he's the one who said we.

[03:12:19] Speaker 03:
Right.

[03:12:20] Speaker 03:
He did.

[03:12:20] Speaker 03:
And I think, just as I said, I can go back to my office and say, we argued the jury issue.

[03:12:25] Speaker 03:
I didn't argue the jury issue.

[03:12:27] Speaker 03:
Mr. Smith argued the jury issue.

[03:12:29] Speaker 03:
It's a group.

[03:12:29] Speaker 03:
It's a group saying, it's like, as I put in my brief, we the people believe in this, that, and the other thing.

[03:12:34] Speaker 03:
We should all eat well.

[03:12:36] Speaker 03:
It doesn't mean that everyone eats well.

[03:12:38] Speaker 03:
It doesn't mean that the we is just a theater of speech.

[03:12:43] Speaker 05:
And you think no rational juror could take from that evidence?

[03:12:47] Speaker 03:
Not in light of the other evidence, absolutely not, no.

[03:12:51] Speaker 03:
I think it was a statement that was just gratuitous and it was brought out and there's nothing to support it.

[03:12:56] Speaker 03:
The evidence concerning the murder doesn't support that statement.

[03:13:01] Speaker 03:
Briefly in regard to the Cardoza murder,

[03:13:05] Speaker 03:
We submit that there was absolutely no evidence to support the fact that Mr. Alfred was anything more than merely present during the discussions.

[03:13:17] Speaker 03:
This circuit's decision in Bailey, which relies upon the Supreme Court case of Hicks, which we cited in the opening brief at 283, makes clear that mere presence is insufficient unless the presence is designed to encourage the perpetrator, it facilitates the deed, such as when one acts as a lookout, or the presence stimulates others to render assistance to the criminal act.

[03:13:40] Speaker 03:
None of those factors apply here.

[03:13:42] Speaker 03:
There is only 2,000 comments

[03:13:44] Speaker 03:
that Cardoza was seen at a specific point in time.

[03:13:48] Speaker 03:
In fact, the cooperating witnesses for the government testified that Mr. James Alfred was merely present and he did not actively seek out or look for Cardoza at any time.

[03:14:10] Speaker 08:
I did argue the juror issue, and Judge Williams, I want to correct a comment I made earlier.

[03:14:15] Speaker 08:
Juror Nine did say he'd been sitting in the back of the jury room.

[03:14:20] Speaker 08:
He likely wouldn't have gotten asked at all, and Ten wouldn't have gotten asked either if the judge hadn't seen it, but Nine did acknowledge that he was sitting in the back of the jury room, so I did want to correct that.

[03:14:31] Speaker 08:
Now, moving on to issue 30A, pre-conspiratorial acts against Ronald Alfred.

[03:14:37] Speaker 08:
The government admits the error, that there is error in the indictment because it should not have charged pre-conspiratorial acts as overt acts.

[03:14:45] Speaker 08:
That was inherently confusing to the jury.

[03:14:48] Speaker 08:
They were told they can't consider pre-1995 acts for Ronald Alfred, but also that they must.

[03:14:54] Speaker 08:
The government admits an error but says there's no prejudice, but Ronald Alfred's lawyers three times tried to correct this because they knew how prejudicial this was going to be.

[03:15:02] Speaker 08:
The government fought it every time, and it is not an answer now for them to admit it and say, well, there was no prejudice.

[03:15:09] Speaker 08:
This jury was told that these ancient pre-conspiratorial acts directly relate to the charges, and that was wrong.

[03:15:17] Speaker 08:
So in the 1989

[03:15:19] Speaker 08:
it was six years before he supposedly joined the conspiracy.

[03:15:24] Speaker 08:
They were told that it needed to be considered.

[03:15:26] Speaker 08:
Plus, the fact that Ronald Alfer was acquitted of that was hidden from the jury, even though it was viable impeachment.

[03:15:33] Speaker 08:
And beyond that, the evidence was established

[03:15:37] Speaker 08:
in violation of the confrontation clause.

[03:15:39] Speaker 08:
The evidence that that was cocaine came from laboratory evidence from a lab technician who had never even been working there at the time, never saw the drugs, never saw the photographs, supposed drugs that were no longer available.

[03:15:51] Speaker 08:
There's too much wrong here.

[03:15:54] Speaker 08:
And the prejudice is significant.

[03:15:55] Speaker 08:
This Kelo supposedly was prominently displayed on the government summary chart.

[03:16:00] Speaker 08:
It was argued in the government's closing as proof that Ronald Alford was a major drug dealer, which in turn was cited as the motive for his alleged participation in violent acts.

[03:16:09] Speaker 08:
Plus, they brought in a 1991 firearms charge four years before he supposedly joined the conspiracy.

[03:16:16] Speaker 08:
And there, as Judge Millett noted, they even heard there was a police shooting.

[03:16:20] Speaker 08:
Even though the government had given assurances, that would never come out.

[03:16:24] Speaker 08:
This jury was told that that, too, was directly related to this charge, even though none of these pre-conspiratorial acts involved any of the other people named of any indictment.

[03:16:36] Speaker 08:
They're completely different people.

[03:16:38] Speaker 08:
How did they directly relate to the charges?

[03:16:40] Speaker 08:
This was highly prejudicial evidence.

[03:16:42] Speaker 08:
The government's focus on closing was in reminding the jurors of my client's pre-conspiratorial acts, because it was so thin post-conspiracy.

[03:16:49] Speaker 08:
The only evidence they had was this

[03:16:52] Speaker 08:
photograph of a small cocaine baggie that was never even tested.

[03:16:58] Speaker 08:
All this stuff was pre-conspiracy that they were focusing on.

[03:17:01] Speaker 08:
On issue 30C, the ineffective assistance to counsel, here Ronald Alfred literally watched as his own first appointed lawyer then came back to his own trial in the same case, but this time he was helping an accuser gain sentencing benefits by convincing a jury to convict him.

[03:17:21] Speaker 08:
Clearly, too, this was some of the worst evidence that was ever brought in against Ronald Alford.

[03:17:26] Speaker 08:
This was the only person who said he'd been involved in multiple kilo sales.

[03:17:30] Speaker 08:
And this notion that this showed he was ready and willing and able to join the conspiracy was laughable.

[03:17:37] Speaker 08:
Alpo had been put into prison and was out of commission in 1991, four years before this conspiracy started.

[03:17:44] Speaker 08:
How is he a source for Ronald Alford joining the conspiracy?

[03:17:49] Speaker 08:
Abenante had represented Alpo for more than a decade as a cooperating witness.

[03:17:54] Speaker 08:
Alpo supposedly said Ronald Alfred was one of his top five witnesses.

[03:17:57] Speaker 08:
How could Abenante not realize that conflict?

[03:18:01] Speaker 08:
Worse still, how could the government not realize it as it set up this meeting between Ronald Alfred and Omar Wazia through his attorney?

[03:18:09] Speaker 08:
This, too, was some of the worst evidence.

[03:18:12] Speaker 08:
It allowed Ronald Alford's statements and conversations with Omar Wazir to come into the trial and be used against him.

[03:18:20] Speaker 08:
Worse, the jury was even told, even told, that Ronald Alford had considered a guilty plea during that conversation.

[03:18:28] Speaker 08:
How many lawyers do you see walk their clients into that kind of evidence?

[03:18:32] Speaker 05:
You don't disagree that if the council didn't know of the conflict, that there wouldn't be

[03:18:39] Speaker 05:
a problem with respect to an actual conflict of interest because it was unknown.

[03:18:42] Speaker 08:
Well, the government knew of the conflict that potentially it could be an issue, but yes, I understand what the Court is saying, but no hearing was held on this issue.

[03:18:50] Speaker 08:
The judge denied an ineffectiveness claim without ever holding a hearing, and as we cited, there are cases that show, particularly in a conflict situation, where the facts are beyond the record, you need to hold a hearing.

[03:19:00] Speaker 08:
I appreciate the Court's time.

[03:19:01] Speaker 05:
Can I ask you just one question on ineffectiveness too?

[03:19:04] Speaker 05:
You raised an ineffectiveness claim about sentencing on the Apprendi question.

[03:19:08] Speaker 05:
I think, am I remembering correctly?

[03:19:10] Speaker 05:
On the Apprendi question?

[03:19:11] Speaker 05:
On Arlene?

[03:19:13] Speaker 08:
Yes.

[03:19:13] Speaker 08:
I think perhaps, Rich, do you want to discuss the Apprendi question?

[03:19:20] Speaker 08:
I'm sorry.

[03:19:21] Speaker 08:
Yes.

[03:19:21] Speaker 08:
The jury was never asked to make this specific finding on the firearms charges, not just as to my client, but as to any of the clients, whether there was a discharge.

[03:19:31] Speaker 08:
So yes, the jury never had the element of discharge put before them.

[03:19:35] Speaker 08:
Correct.

[03:19:35] Speaker 09:
Let's assume that.

[03:19:38] Speaker 05:
I guess my only question about that is just that if

[03:19:43] Speaker 05:
At the time that these arguments were being made, I think there was binding Supreme Court precedent under Harris that said that this argument wasn't good.

[03:19:51] Speaker 05:
It was only later that comes along that it gives credence to the argument.

[03:19:55] Speaker 05:
If I'm understanding correctly, maybe I'm misunderstanding, but I thought that was the state of play.

[03:19:59] Speaker 08:
I would defer to Rich on that issue, but I think Apprenti was 1999, and this case was in 2000, tried in the 2000, pre-2004 range.

[03:20:11] Speaker 09:
Okay.

[03:20:13] Speaker 09:
My question is different.

[03:20:17] Speaker 09:
Your, I'm sorry, the government's position there is that the convictions of crimes which could only have been committed by him by discharge of a gun, shooting, fabley shooting.

[03:20:33] Speaker 09:
Are there any cases that you know of, speaking one way or the other, to whether such a jury finding is enough to fill the gap in the absence of an explicit charge of the jury with respect to discharge of a gun for the 924C A3

[03:20:58] Speaker 06:
You want to give me a few minutes for a bottle drop.

[03:21:04] Speaker 08:
I'll be glad to ask.

[03:21:05] Speaker 04:
Okay, we'll get in it.

[03:21:13] Speaker 04:
Sure.

[03:21:13] Speaker 04:
Thank you.

[03:21:28] Speaker 04:
Just briefly on the Apprendi issue since it just came up, but it's not just that these crimes could only have been committed by shooting, but they were specifically charged as RICO and or CCE and or overt acts in which the specific language was killed the victim by shooting.

[03:21:44] Speaker 04:
So it was specific in the charges that the jury was asked to consider.

[03:21:49] Speaker 09:
I understand, but they weren't charged.

[03:21:51] Speaker 09:
They weren't necessary.

[03:21:54] Speaker 09:
Were they?

[03:21:55] Speaker 09:
A finding on shooting.

[03:21:57] Speaker 09:
was not necessary to the conviction.

[03:22:00] Speaker 04:
If the jury found guilt or found the facts as to those allegations of the indictment to have been established, then they necessarily found that they were going to shoot him.

[03:22:08] Speaker 09:
I understand that argument.

[03:22:09] Speaker 09:
That's somewhat different from the question of whether they actually have to find that a gun was discharged.

[03:22:18] Speaker 09:
It may seem like a technical point, but I think in terms of jury focus on issues, it could be important.

[03:22:24] Speaker 04:
In this context where we're in plain error because no objection was made, the fact that the language of the indictment says shooting and you can't shoot someone without discharging a firearm, I think that there is no error here.

[03:22:38] Speaker 04:
So I propose to go through the issues in the order in which the defendants address them.

[03:22:45] Speaker 04:
Turning first to Mr. McGill's being barred from the courtroom, I absolutely agree that the

[03:22:52] Speaker 04:
decision to continue to remove someone has to be to prevent disruption and that is exactly what the court was trying to accomplish here.

[03:22:58] Speaker 04:
He did allow Mr. McGill to be present when the jury was not in the room but Mr. McGill had shown such a propensity to explode and continue to do so and that's a very important factor even after his removal on the 29th.

[03:23:12] Speaker 04:
The next day on the 30th

[03:23:15] Speaker 01:
Could he continue to do anything in the courtroom as opposed to outside the courtroom?

[03:23:21] Speaker 01:
Did he do anything else when he was in the courtroom?

[03:23:24] Speaker 04:
Well, there was the occasion, I believe the 22nd of April, where he knocked over the chair and cursed at, he claimed he was cursing at the prosecutor.

[03:23:32] Speaker 04:
There was some question.

[03:23:33] Speaker 01:
Was this after he was removed?

[03:23:34] Speaker 04:
That was after his removal.

[03:23:38] Speaker 01:
Which proceeding was that?

[03:23:39] Speaker 04:
I believe that that was on April 22nd.

[03:23:41] Speaker 01:
I just don't know what happened on April 22nd.

[03:23:43] Speaker 01:
Was that the jury, was that the, I'm not sure which portion that would be when he was back in the courtroom.

[03:23:51] Speaker 04:
It might have been, I'm sure counsel will correct me, but I think the 22nd might have been one of the verdicts.

[03:23:58] Speaker 01:
I thought he wasn't back in for the verdicts because the jury would have been there for the verdicts.

[03:24:02] Speaker 04:
He came in, he was allowed in whenever there were discussions on the record, so it might have been discussions about the jury, but the jury had been removed by then.

[03:24:10] Speaker 04:
what my counsel would find.

[03:24:12] Speaker 04:
But there was this incident where he got up, the chair fell down.

[03:24:15] Speaker 04:
His attorney said, well, he just got up too suddenly and the chair fell.

[03:24:17] Speaker 04:
But there was a discussion about him saying, you're a bald-headed racist.

[03:24:22] Speaker 04:
And the question was whether he was addressing the judge or the prosecutor.

[03:24:26] Speaker 04:
And he ultimately admitted his remarks were addressed at the prosecutor.

[03:24:28] Speaker 04:
This was clearly after this.

[03:24:29] Speaker 04:
So he was acting out.

[03:24:31] Speaker 04:
And again, outside of the courtroom as well, on the morning of the 30th, which was the day after he had been removed,

[03:24:38] Speaker 04:
there was an incident about him making so much noise in the back that the court had to have him roofed down to the cell block.

[03:24:44] Speaker 04:
So he was just, he had reached his limit and was acting out in ways that were very detrimental in a multi-code defendant case this close to the end.

[03:24:53] Speaker 04:
And I think the court did a very good job of allowing him to be there when there was, you know, the prejudice would have been ignored if he had done something else in front of the jury.

[03:25:00] Speaker 04:
The defense counsel were all, you know, complaining and asking for a mistrial because of the Stun Belt revelation.

[03:25:06] Speaker 04:
The court couldn't risk another

[03:25:08] Speaker 04:
incidents such as that.

[03:25:09] Speaker 04:
So, for all of the legal discussions, Mr. McGill was allowed to be present, but in front of the jury, he was not.

[03:25:18] Speaker 04:
Turning on to the sentencing, which is almost before I have any other questions on that.

[03:25:24] Speaker 04:
We conceded that Mr. McGill has to be re-sentenced on the two counts.

[03:25:27] Speaker 04:
I do not agree that it is a dinover re-sentencing.

[03:25:30] Speaker 04:
His Elaine claim as

[03:25:31] Speaker 04:
We just mentioned, Your Honor, I think that it's harmless or actually I'm in plain error.

[03:25:35] Speaker 04:
I don't think he's established prejudice to substantial rights here on that point.

[03:25:40] Speaker 04:
The other issue as to whether or not the court needed to make an explanation for its rejection of his

[03:25:47] Speaker 04:
crack, powder, cocaine, and career offender questions.

[03:25:51] Speaker 04:
Just to be clear, and I went back and dug through the record on this, because it's actually kind of hard to tell, because as they did in their brief repeatedly below, there was a lot of adoption of people's pleadings without explaining how they applied.

[03:26:03] Speaker 04:
And so in part, Mr. McGill had adopted objections that were made by one of his co-defendants.

[03:26:08] Speaker 04:
And I actually couldn't find that document.

[03:26:11] Speaker 04:
I tried to find it and I couldn't.

[03:26:13] Speaker 04:
But from what I did look at, it does appear that Mr. McGill's objection was just, you shouldn't apply the guidelines.

[03:26:19] Speaker 04:
You should use your discretion and sentence me under 3553.

[03:26:23] Speaker 04:
The court rejected that.

[03:26:26] Speaker 04:
And this court has said a guideline sentence is a presumptively reasonable one.

[03:26:29] Speaker 04:
The court doesn't need to explain that.

[03:26:31] Speaker 04:
But even if it did, and I don't believe it does, but if the court has any question, it can certainly provide an explanation at the time

[03:26:38] Speaker 04:
that Mr. McGill is re-sentenced on the other two counts.

[03:26:43] Speaker 04:
The objection of the career offender guideline, far as I can tell, was not based on a claim that he was not a career offender.

[03:26:50] Speaker 04:
It was simply based on, in your discretion, Judge, you shouldn't sentence me that way.

[03:26:54] Speaker 04:
The fact that he's a career offender, however, means that crack guidelines, amendments, don't apply to him.

[03:27:00] Speaker 04:
They don't apply to career offender, sentencing under the career offender guideline.

[03:27:03] Speaker 04:
So that's another reason why this notion that there should be dame over sentencing.

[03:27:07] Speaker 04:
It's just not necessary.

[03:27:10] Speaker 04:
And unless the court has any questions, I'll move on to Mr. Oliver's issues.

[03:27:13] Speaker 05:
I have one question about it, which is that there's this argument that was raised about McGill's sentencing concerning the application of the two-level increase and whether it's double counting of the firearms charge.

[03:27:23] Speaker 04:
Right.

[03:27:23] Speaker 04:
And I believe we indicated, we believe that that issue is governed by courts indulgence.

[03:27:30] Speaker 04:
I think it's Thomas.

[03:27:35] Speaker 04:
United States versus Thomas.

[03:27:37] Speaker 04:
in which that same enhancement was used in a similar factual setting?

[03:27:41] Speaker 05:
I guess the question is whether it was a similar factual setting because it depends on whether the increase was imposed just in conjunction with the narcotics conspiracy, in which case I think that argument seems right, or whether it was imposed in conjunction with a bunch of offenses in combination, including the two firearms offenses, in which case you'd have double counting.

[03:28:02] Speaker 05:
And I thought that when the reply brief pointed out that

[03:28:07] Speaker 05:
the PSR appeared to apply the two-level increase with respect to all the combined offenses rather than just defense one.

[03:28:18] Speaker 04:
Does the court have the PSR?

[03:28:20] Speaker 04:
We can provide it to the court and go back to that.

[03:28:23] Speaker 04:
I don't know the answer to that question.

[03:28:25] Speaker 04:
My understanding was that it was applied under the narcotics conspiracy.

[03:28:31] Speaker 05:
Okay, so you don't know if the PSR did?

[03:28:33] Speaker 04:
I don't know if they grouped it in that way.

[03:28:36] Speaker 04:
I can certainly get back to the point on that.

[03:28:44] Speaker 04:
On Mr. Oliver's issue, and I think the court was getting there on his questions with counsel, but this was fully vetted before the district court.

[03:28:55] Speaker 04:
The district court was aware of what the issue was.

[03:28:58] Speaker 04:
The government had the relevant transcript pages from Ms.

[03:29:01] Speaker 04:
Robles.

[03:29:01] Speaker 04:
The court looked at it.

[03:29:02] Speaker 04:
The court knew what the government was trying to do.

[03:29:05] Speaker 04:
The court approved of it.

[03:29:06] Speaker 04:
The defendant then had the possibility of eliciting whatever he wanted to do to clarify that, and ultimately testified himself, testified that the statement that Robles overheard was not between him and Timothy Handy.

[03:29:18] Speaker 04:
It was between his cousin, Tyrone Oliver, and Timothy Handy, and that it involved the Demetrius Green murder.

[03:29:23] Speaker 04:
So there was no intent to mislead here.

[03:29:27] Speaker 04:
The government took an inference from the evidence that is a reasonable inference.

[03:29:31] Speaker 04:
It may have a different inference.

[03:29:32] Speaker 04:
The defendant was able to produce that, to explore that.

[03:29:35] Speaker 01:
The government's view at the time was that she was confused and she was maybe collapsing.

[03:29:41] Speaker 01:
She may have been collapsing.

[03:29:42] Speaker 01:
So you thought she was confused at this point.

[03:29:45] Speaker 01:
I guess I'm wondering why it's appropriate for the government.

[03:29:50] Speaker 01:
with its special duties when it looks at testimony and concludes on its own that you're as confused to sort of cherry pick out what it likes.

[03:30:01] Speaker 01:
and leave it on the defense to come in and straighten things out.

[03:30:05] Speaker 01:
Is it better for the government to lay it out there?

[03:30:08] Speaker 04:
Evidence isn't always clear.

[03:30:09] Speaker 04:
There are different inferences that can be taken off.

[03:30:11] Speaker 01:
No, I'm not talking about when different inferences can be made.

[03:30:14] Speaker 01:
When the government itself concludes that a witness was confusing things, which I thought was the understanding here, the government itself had decided she's confusing things.

[03:30:25] Speaker 01:
to then try to make it look unconfused by carefully carving out what you used.

[03:30:31] Speaker 01:
Is that appropriate for the government?

[03:30:34] Speaker 04:
Again, this was all vetted before the district court.

[03:30:36] Speaker 01:
I'm not disputing that.

[03:30:37] Speaker 04:
And I think here the government had a good faith basis for thinking that part of what she heard did relate to the Richard Simmons murder because our evidence has been that Richard Simmons is the only victim in all of the 31 murders involved in this conspiracy in which the victim's mother

[03:30:54] Speaker 04:
actually witnessed the crime.

[03:30:56] Speaker 04:
And the statement that Victoria Robles overheard, she was very clear that, and she testified to this in the grand jury, it was a statement that Dion was making about something he appeared to have participated in.

[03:31:07] Speaker 04:
He didn't participate in the Demetrius Green murder.

[03:31:11] Speaker 04:
So at least a portion of what she's testifying at, in our view, clearly related to the Richard Simmons murder, that there is other information that she may have been folding in there, that's fodder for cross-examination.

[03:31:21] Speaker 04:
And I don't think there's anything unfair about

[03:31:23] Speaker 04:
presenting that as long as everyone knows what the facts are, and the judge had a chance to rule on it, the defendant had a chance to explore it.

[03:31:35] Speaker 04:
And the notion that counsel raises here that this is ineffective assistance on its base, that's not raised in the brief at all, I just think that's something the court can't consider.

[03:31:46] Speaker 04:
Turning to the sufficiency

[03:31:50] Speaker 04:
Council did not preserve the issue of the Pinkerton liability or really even the aiding and abetting liability.

[03:31:57] Speaker 04:
This is pure and simple sufficiency claim.

[03:32:04] Speaker 01:
If you hadn't argued Pinkerton below... That's incorrect, actually.

[03:32:08] Speaker 04:
What we argued were facts.

[03:32:10] Speaker 04:
We didn't argue it as aiding and abetting or Pinkerton.

[03:32:13] Speaker 04:
We argued facts.

[03:32:14] Speaker 04:
We argued facts in the light of, this is a conspiracy.

[03:32:17] Speaker 04:
This is what the conspirators did.

[03:32:18] Speaker 01:
I thought it would be ordinary for the government to go, look, here are the elements for this offense jury, pick out the legal elements, and then go, here are the facts that go with it.

[03:32:28] Speaker 01:
And so was there any effort to show, to say, jury, you need to find reasonable foreseeability as part of this conspiracy and here are the facts that go with it?

[03:32:38] Speaker 04:
No, we just laid out what the facts were of all the offenses.

[03:32:41] Speaker 04:
And I think the jury is capable of sorting through that with the instruction and figuring out where they match.

[03:32:46] Speaker 01:
And was there just one thing, was there just one sort of general Pinkerton instruction or was the judge with respect to each of these murders?

[03:32:55] Speaker 01:
It was one Pinkerton instruction.

[03:32:56] Speaker 01:
Just one general instruction.

[03:32:58] Speaker 04:
I will also say this, too.

[03:32:59] Speaker 04:
We are not conceding on aiding and abetting either.

[03:33:01] Speaker 04:
We just think that the shorter way home is on the Pinkerton theory here.

[03:33:05] Speaker 04:
But this was an unusual aiding and abetting instruction.

[03:33:09] Speaker 04:
But again, counsel hasn't challenged the aiding and abetting instruction.

[03:33:11] Speaker 01:
When you say unusual, does that mean it was an improper aiding and abetting instruction?

[03:33:14] Speaker 04:
No, I think it was a combination of the Wilson Bay instruction, which was given in district court, and the Wilson instruction that complies with this court's ruling in Wilson.

[03:33:24] Speaker 04:
So it had language that did sort of tend to, you have to have intent.

[03:33:31] Speaker 04:
I don't know if I have the exact language.

[03:33:31] Speaker 01:
I just didn't understand you as actually defending the legality of that aiding and abetting instruction, not just that you were

[03:33:38] Speaker 01:
arguing both, but that you were not defending that instruction, but instead were trying to defend this verdict just on the Pinkerton theory.

[03:33:44] Speaker 04:
We're simply saying this is a sufficiency claim.

[03:33:46] Speaker 04:
They didn't challenge the aiding and abetting instruction.

[03:33:48] Speaker 04:
We don't need to defend it.

[03:33:50] Speaker 04:
We defended the sufficiency claim on the Pinkerton point, because it's the easier point here.

[03:33:54] Speaker 04:
I just don't want the Court to walk away with the notion that we conceded on aiding and abetting, because we have not.

[03:34:05] Speaker 04:
The court asked the question, I believe this is the issue that relates to Yates.

[03:34:09] Speaker 04:
This case is just like Moore on that regard, because there was no preservation of the issue of Pinkerton.

[03:34:18] Speaker 04:
I mean, they simply didn't raise it.

[03:34:19] Speaker 04:
They raised the sufficiency claim.

[03:34:20] Speaker 04:
They didn't even address how Pinkerton might have affected the sufficiency of the evidence.

[03:34:24] Speaker 04:
They didn't challenge the Pinkerton instruction.

[03:34:26] Speaker 04:
As in Moore, this court doesn't even need to get to the Yates issue, because it's a plain error standard of review.

[03:34:36] Speaker 04:
It would be plain error review for that.

[03:34:39] Speaker 04:
I'm sorry, Your Honor.

[03:34:40] Speaker 04:
I'm totally confused.

[03:34:42] Speaker 04:
It's been a long morning.

[03:34:48] Speaker 04:
In any event, this is governed by Moore.

[03:34:57] Speaker 04:
If the Court has no further questions, move on to the next issue.

[03:35:01] Speaker 07:
Sure.

[03:35:03] Speaker 04:
Okay, the Lincoln Hunter jail records issue.

[03:35:06] Speaker 04:
There was no suppression here.

[03:35:09] Speaker 04:
The defendant got the records, had the records, had them in time to use them, had they been admissible.

[03:35:14] Speaker 04:
They do not raise an admissibility challenge in this brief.

[03:35:17] Speaker 04:
I know counsel says he did.

[03:35:18] Speaker 04:
There is a footnote in which he attempts to incorporate by reference all of the pleadings that were filed in the district court on this issue.

[03:35:25] Speaker 04:
That is completely in contravention of the rules of appellate procedure, and particularly in a case of this

[03:35:30] Speaker 04:
massive length with such an extraordinary record and so many issues to attempt to address an issue by incorporation in that way is improper, unfair to the government, unfair to the court, and it's just it's not preserved.

[03:35:43] Speaker 04:
So you have simply a situation where there was an admissibility ruling against them because of that and because that's never been challenged.

[03:35:50] Speaker 04:
They cannot make out that they were prejudiced and there was before no Brady out violation.

[03:35:55] Speaker 04:
This could not have made a difference in the outcome if they'd had it sooner because it was an innocent.

[03:36:02] Speaker 01:
Any case law on whether Brady even applies when the government did request documents from all relevant agencies?

[03:36:10] Speaker 01:
They don't argue that you didn't request documents from all relevant agencies and turned over all the documents you had and had no basis that they allege at least for knowing that something was missing?

[03:36:20] Speaker 01:
Does Brady still apply in that context?

[03:36:23] Speaker 04:
I don't, I'm not aware of a case, Your Honor.

[03:36:27] Speaker 04:
But more particularly, when they actually have possession of the documents, there's just not a Brady violation.

[03:36:32] Speaker 04:
They had been in time to use them.

[03:36:34] Speaker 01:
We can have a Brady violation if things come late, if they show that the lateness caused them, the timing caused them prejudice.

[03:36:42] Speaker 01:
We're just trying to figure out whether we even need to get to the Constitution here.

[03:36:52] Speaker 04:
There was sufficient evidence of Mr. Sievers' involvement in the narcotics conspiracy in November 1996, and I would point the court to the testimony of Eugene Williams.

[03:37:00] Speaker 04:
Among other things, Williams testified that Sievers acted as an overseer for Peewee Oliver, who in turn was being supplied by Rodney Moore.

[03:37:08] Speaker 04:
Peewee Oliver was a conspirator in this group.

[03:37:12] Speaker 04:
That Sievers was acting in that capacity around the time Diane Lucas was killed, which is November 1996.

[03:37:19] Speaker 04:
He also testified that shortly after Luther's murder,

[03:37:22] Speaker 04:
Seegers was selling crack at 5th and I Street and was being supplied by, quote, the nephews Rodney, those guys, which is, again, a reference to Rodney Moore and Peewee Oliver.

[03:37:31] Speaker 04:
His testimony was corroborated by the testimony.

[03:37:34] Speaker 05:
Whose testimony is this again?

[03:37:35] Speaker 05:
You're citing whose testimony?

[03:37:36] Speaker 04:
This is Eugene Williams.

[03:37:39] Speaker 04:
I don't have, actually, the joint appendix page, but it's the November 13, 2003 AM transcript, specifically pages 109, 118, 121, 22.

[03:37:53] Speaker 04:
That testimony was corroborated by the fact that I believe it was two days after Luther's murder.

[03:37:58] Speaker 04:
His place was searched and the police found, among other things, drugs.

[03:38:03] Speaker 04:
And the court can consider that even with the Confrontation Clause issue under Alexander.

[03:38:08] Speaker 04:
All admitted evidence is considered in reviewing sufficiency.

[03:38:11] Speaker 04:
So that corroborates.

[03:38:13] Speaker 04:
And then there's also...

[03:38:16] Speaker 09:
You just read Lockhart.

[03:38:21] Speaker 09:
Lockhart, which Alexander relies, is entirely in the context of how you go about drawing a distinction.

[03:38:31] Speaker 09:
double jeopardy purposes, a reversal of conviction for absence of sufficient evidence versus reversal for such a thing as admission of evidence erroneously.

[03:38:47] Speaker 09:
I think you're right about Alexander.

[03:38:49] Speaker 09:
Followed that, purported to apply it in an area where it didn't belong.

[03:38:56] Speaker 09:
But I don't think it's part of the whole thing about Alexander.

[03:39:01] Speaker 04:
Well, that was my understanding of Alexander, Your Honor, but that's just corroborative evidence.

[03:39:06] Speaker 04:
Williams' testimony alone is sufficient.

[03:39:08] Speaker 04:
Viewing evidence in the light most favorable to the defendant, that would get us over it.

[03:39:13] Speaker 04:
The evidence from the search warrant is sort of icing on the cake.

[03:39:17] Speaker 04:
There's also the testimony about Seeger's involvement in the shooting of Lincoln Hunter and the murder of Diane Luther.

[03:39:26] Speaker 04:
The jury hung on the Diane Luther counts,

[03:39:30] Speaker 04:
essentially a hung jury is kind of a non-event.

[03:39:32] Speaker 04:
There's certainly still evidence out there, and we don't know what use the jury might have made of that in assessing his involvement in the conspiracy.

[03:39:38] Speaker 04:
But certainly that undertaking, finding that he assaulted Lincoln Hunter with the intent to murder him means they accepted some of those facts.

[03:39:47] Speaker 04:
And that incident also is corroborative of his involvement in the conspiracy.

[03:39:54] Speaker 04:
The court has no further questions on that.

[03:39:58] Speaker 04:
On Mr. Simmons' issues, and I would point the court again to the Rodney Moore opinion, the fact that Simmons may have had a drug partnership with Fleming doesn't mean that he didn't participate in this conspiracy.

[03:40:11] Speaker 04:
And there was a wealth of evidence from Fleming and others that he did participate in this conspiracy.

[03:40:16] Speaker 04:
Fleming testified that Simmons told him many times that he got cocaine from Rodney Moore, one to three kilos at a time.

[03:40:25] Speaker 04:
He arranged

[03:40:26] Speaker 04:
Simmons arranged for Fleming to cook cocaine for Rodney Moore at Dion Oliver's apartment.

[03:40:32] Speaker 04:
Fleming testified that Simmons was supplying Oliver, Dion Oliver, with crack.

[03:40:36] Speaker 04:
Fleming testified that Simmons was dealing with Gray and giving him 62s and eighths of crack on occasion.

[03:40:42] Speaker 04:
Andrews testified about Simmons' narcotics dealings with Gray in late 1998.

[03:40:49] Speaker 04:
Omar Wazir talked about a specific incident involving a phone conversation between Gray and Simmons about drugs.

[03:40:56] Speaker 04:
Victoria Robles testified that during the period of her relationship with Dion Oliver, which was 97 to 2000, Kenny Simmons was supplying Dion Oliver with crack cocaine.

[03:41:06] Speaker 04:
So there was just a lot of evidence indicating that he was involved in this RICO and narcotics conspiracies.

[03:41:14] Speaker 04:
The murders

[03:41:16] Speaker 04:
were, you know, again, I get into this at whatever detail the court wants, but our position is given the nature of this conspiracy, the way it was charged, among other things, the conspirators were committed murders to protect their position in the organization.

[03:41:32] Speaker 04:
For the Rico murder, they had to show that it was expected of them as part and parcel of their participation in the organization.

[03:41:39] Speaker 04:
And we think that all of these murders meet that criteria, both the Walker murder and the Simmons murder.

[03:41:51] Speaker 04:
Mr. Alford's individual issues, next.

[03:41:54] Speaker 04:
I think Mr. Alford's involvement in the Joseph Thomas murder is pretty much resolved by the statement that Omar Wazir reported, James Alford having said, we got gangster to hit froggy.

[03:42:07] Speaker 04:
We is first person plural.

[03:42:09] Speaker 04:
He's acknowledging his involvement.

[03:42:11] Speaker 04:
And just to use the example counsel gave,

[03:42:15] Speaker 04:
We argued 404B evidence doesn't mean I personally did.

[03:42:18] Speaker 04:
Yes, but you are one of the appellants on this brief.

[03:42:20] Speaker 04:
You wrote this brief.

[03:42:21] Speaker 04:
You're presenting this argument.

[03:42:22] Speaker 04:
And if the court reverses on 404B evidence, they're going to take advantage of that.

[03:42:26] Speaker 04:
So we means we were involved.

[03:42:28] Speaker 04:
This is a conspiracy under Pinkerton.

[03:42:33] Speaker 04:
This is clearly an admission.

[03:42:35] Speaker 04:
And it is corroborated.

[03:42:37] Speaker 04:
It's corroborated by the fact that Gangster did kill Froggy.

[03:42:40] Speaker 04:
When Gangster himself was killed, the gun found on his body

[03:42:43] Speaker 04:
was ballistically matched to Froggy's murder.

[03:42:46] Speaker 04:
It's corroborated by the facts.

[03:42:47] Speaker 04:
There's a great deal of evidence about Ronald Alfred's role in having Froggy killed, and that corroborates the we.

[03:42:53] Speaker 04:
It was more than one person.

[03:42:54] Speaker 01:
What exactly was, or could the jury have inferred or found, was Kenny Simmons' position in the Graymore conspiracy?

[03:43:02] Speaker 04:
in the Graymore Conspiracy.

[03:43:03] Speaker 04:
He alternately supplied and was supplied by Graymore and some of the other co-defendants.

[03:43:09] Speaker 01:
When I say was supplied by, does that mean then when you do sales you're doing that as part of the conspiracy too?

[03:43:14] Speaker 04:
They weren't doing street-to-street sales.

[03:43:16] Speaker 04:
They weren't doing hand-to-hand sales on the street.

[03:43:18] Speaker 04:
They were supplying quantity to one another so that it could be distributed out to the street-level sellers.

[03:43:23] Speaker 04:
As I said, he was talking about 60 tooths and eighths of cocaine and a kilo on occasion.

[03:43:27] Speaker 01:
I mean, these were quantities.

[03:43:28] Speaker 01:
So he gave it to them.

[03:43:31] Speaker 01:
He was, I guess, one of their suppliers.

[03:43:33] Speaker 01:
And then they sometimes supplied to him, which he then put out on the street.

[03:43:36] Speaker 01:
And that was part of his conspiracy actions as well as the allegation?

[03:43:39] Speaker 04:
Yeah, to the extent that they're

[03:43:42] Speaker 04:
buying and selling from one another on a repeated basis, and then doing things like bringing flooding in to cook cocaine for more.

[03:43:48] Speaker 04:
I mean, it shows a level of involvement in the workings of this conspiracy that goes beyond Mirabai herself.

[03:44:00] Speaker 04:
In any event, the statement we thought gangster hit Frogger was well corroborated.

[03:44:03] Speaker 04:
It was also corroborated by evidence that

[03:44:05] Speaker 04:
Alfred shot at Kerry Ball's brother, Amon, and two other young men on an occasion.

[03:44:10] Speaker 04:
And that all relates to the Froggy murder because it was the interactions between those two groups.

[03:44:15] Speaker 04:
So that admission is alone sufficient evidence.

[03:44:21] Speaker 04:
The court doesn't even need to reach, if it agrees on the Thomas murder, that there was sufficient evidence.

[03:44:26] Speaker 04:
The court doesn't even need to reach the Cardoza murder.

[03:44:29] Speaker 04:
But again, evidence that Alfred was involved

[03:44:33] Speaker 04:
by giving information about Cardoza's whereabouts is enough.

[03:44:37] Speaker 04:
It's not necessary that he actually go out looking for him.

[03:44:39] Speaker 04:
If he's reporting back about what Cardoza is doing and helping the conspirators locate Cardoza, that's sufficient.

[03:44:53] Speaker 04:
So turning now to Mr. Alfred's issues.

[03:44:58] Speaker 04:
We've talked a lot about the 1989 conviction already.

[03:45:01] Speaker 04:
Again,

[03:45:03] Speaker 04:
The government included all that evidence because originally it was intrinsic.

[03:45:07] Speaker 04:
That was our theory that it was intrinsic.

[03:45:09] Speaker 04:
It was included in the indictment, and we have conceded in our brief that it can't be an overt act of a conspiracy that he hadn't yet joined.

[03:45:16] Speaker 04:
It's part of the process of him joining the conspiracy.

[03:45:20] Speaker 04:
That being said, he was not substantially prejudiced by that.

[03:45:25] Speaker 04:
The jury was instructed that he was not being charged with any

[03:45:31] Speaker 04:
event that preceded his entry into the conspiracy.

[03:45:34] Speaker 04:
They were instructed that they didn't even have to find an overt act.

[03:45:37] Speaker 04:
There were other overt acts that included some of the violent crimes in which he participated.

[03:45:41] Speaker 09:
The reply says you used their language, conveniently omit the RICO conspiracy.

[03:45:49] Speaker 04:
It was not charged as part of the RICO conspiracy.

[03:45:51] Speaker 04:
It was not one of the racketeering acts.

[03:45:53] Speaker 04:
It was just in the narcotics conspiracy.

[03:45:58] Speaker 01:
If you didn't really need it, then wouldn't the prejudicial impact far outweigh any probative value?

[03:46:05] Speaker 01:
If you didn't need this evidence of the overt acts, and they were so far removed in time from the conspiracy, and they were pretty, certainly the police shooting one, prejudicial, on what basis did the probative force outweigh the prejudicial impact?

[03:46:23] Speaker 04:
I don't believe, Your Honor, I've said that we don't need it.

[03:46:25] Speaker 04:
I simply said it couldn't be an overt act.

[03:46:26] Speaker 04:
I thought your brief said it was surplusage.

[03:46:29] Speaker 04:
surplusage in the indictment because it can't be an overt act.

[03:46:31] Speaker 04:
It can't be an overt act because he hadn't yet joined the conspiracy.

[03:46:34] Speaker 04:
But as we argued in the 404b context, it comes in nonetheless because it's probative of how he came to join the conspiracy and what his role was in the

[03:46:45] Speaker 04:
what he brought to the table, as we argued.

[03:46:47] Speaker 01:
But 1989 we're talking about?

[03:46:49] Speaker 01:
Yes, Your Honor.

[03:46:49] Speaker 01:
And that's, I'm just having a little trouble.

[03:46:52] Speaker 01:
How far back do you get to go?

[03:46:53] Speaker 04:
There's another aspect of this, too.

[03:46:54] Speaker 04:
There were forfeiture claims in this indictment, and I actually don't know that they were ever resolved.

[03:46:59] Speaker 04:
The jury verdict doesn't include the forfeiture counts, but they were there, and evidence was presented on them.

[03:47:04] Speaker 04:
Ronald Alfred, a lot of the forfeiture items came from Ronald Alfred.

[03:47:11] Speaker 04:
Ronald Alfred's defense and part of what he argued to the jury in closing was, you know, I'm a businessman.

[03:47:16] Speaker 04:
I own several stores and I gamble a lot as an explanation for where all this wealth comes from.

[03:47:22] Speaker 04:
The fact that he's got this long continuing engagement as a narcotics conspirator with Gray and even before negates that.

[03:47:34] Speaker 04:
Because that wealth has got to be coming from somewhere, and it's not coming from his pre-conspiracy conduct, and it's got to be coming from his conspiracy conduct, if the court follows.

[03:47:43] Speaker 04:
And I think it's directly relevant to the forfeiture count for that basis.

[03:47:47] Speaker 04:
In any event, he simply wasn't prejudiced by the fact that it was included in this indictment.

[03:47:54] Speaker 04:
To the extent there was any confusion at all, the jury would logically have thought, if it's charged in the indictment, we have to find it as proof beyond a reasonable doubt, which was not the standard for 404B evidence.

[03:48:06] Speaker 04:
And the last issue, if I may, is the ineffective assistance.

[03:48:13] Speaker 04:
I think I may have misheard counsel because I thought him say that his client had to endure Mr. Abernanti, his former attorney, coming and testifying on behalf of another cooperator who was trying to get time off.

[03:48:25] Speaker 04:
That's simply untrue.

[03:48:26] Speaker 04:
Mr. Abernanti testified for Mr. Alford.

[03:48:29] Speaker 04:
And the information that he provided about the conversation that Mr. Alford and Mr. Abernanti and Mr. Wazir had had

[03:48:36] Speaker 04:
was powerful evidence for Mr. Alfred.

[03:48:40] Speaker 04:
And so he made use of that testimony.

[03:48:42] Speaker 04:
That was no wrongdoing on anyone's part.

[03:48:45] Speaker 04:
He had an opportunity if he thought that there was something to this conflict.

[03:48:49] Speaker 04:
He certainly had the opportunity to voir dire Mr. Abernanti about it.

[03:48:52] Speaker 04:
Mr. Abernanti was there.

[03:48:53] Speaker 04:
He could have

[03:48:54] Speaker 04:
Vardir Mr. Martinez about it when Martinez testified.

[03:48:59] Speaker 04:
He didn't ask to do that.

[03:49:00] Speaker 01:
There's nothing on the record.

[03:49:01] Speaker 01:
Sorry, I've been representing Mr. Martinez for a long time, I take it.

[03:49:05] Speaker 01:
He had started representing Mr. Martinez like 10 years before.

[03:49:08] Speaker 01:
Had the government interacted with Mr. Martinez in his representation?

[03:49:13] Speaker 01:
Sorry, Mr. Abinatti in his representation of Mr. Martinez?

[03:49:16] Speaker 01:
Yes.

[03:49:17] Speaker 01:
In that time period?

[03:49:18] Speaker 04:
I don't know if it was, I actually don't know, Your Honor.

[03:49:21] Speaker 04:
I could find out whether it was in this jurisdiction or elsewhere, because I think Mr. Martinez, I'm not sure where he was originally convicted.

[03:49:28] Speaker 04:
I want to say, Virginia, that I could be wrong.

[03:49:31] Speaker 01:
So you're not aware that the government here had talked to Mr. Abinanti in any respect involving Mr. Martinez in any of that tenure period?

[03:49:41] Speaker 01:
I don't know if we did.

[03:49:42] Speaker 01:
We may have, but we certainly... So we just don't know yet.

[03:49:46] Speaker 04:
Right.

[03:49:47] Speaker 04:
But Mr. Abinanti's involvement in this case was pretty brief.

[03:49:50] Speaker 04:
It was about two months very early on.

[03:49:53] Speaker 04:
As soon as he realized the conflict, he got out.

[03:49:55] Speaker 04:
There's no indication

[03:49:57] Speaker 04:
that he transmitted any information to Mr. Martinez.

[03:50:00] Speaker 04:
There's just nothing to suggest that.

[03:50:02] Speaker 04:
And without that, under Kyler, there's just nothing to the conflict of interest claim.

[03:50:06] Speaker 01:
Just to be clear, did he represent Mr. Martinez when he testified?

[03:50:11] Speaker 01:
When he testified, he still represented Mr. Martinez.

[03:50:13] Speaker 04:
In the trial.

[03:50:17] Speaker 04:
So if the court has no further questions.

[03:50:21] Speaker 04:
Thank you.

[03:50:21] Speaker 05:
Thank you.

[03:50:23] Speaker 05:
We'll give each counsel one minute in rebuttal and see where that goes.

[03:50:30] Speaker 06:
I want to get a little reference because I'm going to respond to some of your questions.

[03:50:35] Speaker 06:
First of all, Judge Srinivasan, I make a practice when sentencing issues.

[03:50:40] Speaker 06:
I do include the pre-sentence report redacted of all of the personal information.

[03:50:46] Speaker 06:
And so it does appear in the appendix for Mr. McGill.

[03:50:49] Speaker 06:
It starts at page 1639.

[03:50:52] Speaker 06:
It runs effectively to 1652.

[03:50:55] Speaker 06:
And in particular, you'll want to look at page 1642, especially paragraph 120.

[03:51:03] Speaker 06:
But that is the page where the Senator Fortrider talks about grouping offenses.

[03:51:08] Speaker 06:
And on the next page, at paragraph 122,

[03:51:11] Speaker 06:
That's page 1643.

[03:51:13] Speaker 06:
That talks about increasing the offense level on what is already one base offense level.

[03:51:22] Speaker 05:
Okay.

[03:51:22] Speaker 05:
Thank you.

[03:51:22] Speaker 06:
So at least you have that to make that decision.

[03:51:25] Speaker 06:
Thank you.

[03:51:25] Speaker 06:
To answer Judge Williams' question about Aline.

[03:51:29] Speaker 06:
The Supreme Court in that case made it clear that anything that raises the mandatory minimum sentence is an element of the offense and therefore it has to be charged and proved beyond a reasonable doubt.

[03:51:45] Speaker 06:
I absolutely understand.

[03:51:46] Speaker 05:
Was it an, I may be getting confused, was the sentencing argument an aline argument or was it an Apprendi argument?

[03:51:52] Speaker 05:
Was the argument that the floor was raised or was the argument that the ceiling was raised?

[03:51:57] Speaker 06:
Well, let me be clear.

[03:51:58] Speaker 06:
If this is a plain error issue, all right, it was not raised by the parties below.

[03:52:05] Speaker 06:
But Alene is essentially more of the progeny of a Apprendi.

[03:52:10] Speaker 06:
So when I wrote the initial brief, I styled it as an Apprendi violation.

[03:52:14] Speaker 06:
In the meantime, Alene comes down that I think answers the question very clearly that you can't bump up the mandatory minimum sentence unless it's an element.

[03:52:24] Speaker 06:
And, of course, under Henderson, what's plain error is at the time of the appeal, it doubled a consecutive sentence.

[03:52:30] Speaker 06:
This was not part and parcel of the big ones.

[03:52:32] Speaker 06:
It doubled a consecutive sentence.

[03:52:33] Speaker 06:
I can't see how you cannot find plain error.

[03:52:36] Speaker 09:
Within the realm of plain error, given that shooting to death is the failure in terms of the verdict form for the 924C,

[03:52:57] Speaker 09:
I take it that was the government's argument.

[03:52:58] Speaker 06:
Well, the 924C is a consecutive sentence to all of these other life and 30-year sentences.

[03:53:06] Speaker 06:
So it's something they have to do in addition.

[03:53:08] Speaker 06:
It's 10 years consecutive.

[03:53:11] Speaker 06:
And under a lien, it should only be five.

[03:53:14] Speaker 06:
I understand that.

[03:53:14] Speaker 09:
But what if it's a practical matter?

[03:53:17] Speaker 09:
Maybe one shouldn't examine this.

[03:53:19] Speaker 09:
The government's argument, essentially, is that it's a practical matter, a jury that found fatal shooting by the defendant.

[03:53:31] Speaker 06:
Well, I understand what you're saying, Your Honor, but I think frankly the terminology used by the Supreme Court to say it is an element

[03:53:43] Speaker 06:
I think really requires this court to conclude that it has to be charged and proved beyond a reasonable doubt and found by a reasonable doubt by a jury.

[03:53:53] Speaker 05:
But I thought on plain error this happens in drug quantity cases where there's a failure to submit to the jury the element of having a particular drug quantity but then on plain error review an appellate court will say well there's no way the jury could have found

[03:54:08] Speaker 05:
the defendant guilty unless it had found the requisite drug quantity based on the testimony of x, y, and z, and therefore it's not plain error.

[03:54:16] Speaker 05:
Doesn't this seem comparable to that?

[03:54:18] Speaker 06:
Judge, usually those are still coming in the context of sentencing guidelines, in other words, sentences well before, well below the maximum sentence, which is frequently life or longer, and it's usually not a question of the mandatory minimum.

[03:54:33] Speaker 05:
I'm talking about Apprendi cases.

[03:54:36] Speaker 05:
I think in cases where there's an error because there was a failure to submit to the jury something that the jury had to find that nonetheless on plain error review appellate courts will say well if it's in the case of drug quantity at least we can reconstruct the evidence and we see that there's no way the jury could have found the defendant guilty unless it would have found the requisite drug quantity and therefore it's not plain error.

[03:55:02] Speaker 06:
I guess I'll just have to...

[03:55:04] Speaker 06:
I guess I'll just have to defer to the court on that.

[03:55:06] Speaker 06:
I think the reading of the line is just plain error.

[03:55:11] Speaker 06:
Let me just clarify a question by Judge Millett.

[03:55:15] Speaker 06:
It is true that we are not arguing with respect to the armed career criminal, that it does not legally apply.

[03:55:22] Speaker 06:
Our argument is solely that the judge had the discretion to depart from it.

[03:55:28] Speaker 06:
That's ever since the Vasquez case, the Supreme Court case.

[03:55:33] Speaker 06:
judges do it all the time.

[03:55:34] Speaker 06:
They don't.

[03:55:36] Speaker 06:
They do it frequently.

[03:55:37] Speaker 06:
They don't do it all the time.

[03:55:39] Speaker 06:
It's a permissible request that some judges granted.

[03:55:42] Speaker 06:
There's no indication this judge considered it.

[03:55:44] Speaker 06:
Um, and the only let me just say one thing about presence.

[03:55:48] Speaker 06:
This business about knocking over the chair.

[03:55:50] Speaker 06:
It occurs on the 22nd of April.

[03:55:52] Speaker 06:
He's already been excluded from the final instructions.

[03:55:55] Speaker 06:
He's already been excluded from the voir dire of the jurors concerning the jury issue, and it doesn't occur while the jury's in the room.

[03:56:03] Speaker 06:
In fact, the judge only hears a noise as the judge is going out of the room, and there's a debate as to what exactly happened.

[03:56:10] Speaker 06:
But I don't think any of that vitiates the argument that while he was in the courtroom, Mr. McGill demonstrated an ability to control himself.

[03:56:19] Speaker 01:
Did the court make any fact findings about that incident?

[03:56:22] Speaker 06:
No, the court had made up its mind from the next day, Mr. McGill's attorney says, please let him come back.

[03:56:29] Speaker 06:
He'll behave.

[03:56:30] Speaker 06:
And the judge says, I've never had that happen in 16 years, what Mr. McGill did.

[03:56:35] Speaker 06:
He's not coming back.

[03:56:37] Speaker 06:
There's nothing you can say to me that will convince me that he'll behave himself.

[03:56:41] Speaker 06:
And I respectfully suggest, under the case law, he should have been given an opportunity.

[03:56:45] Speaker 06:
It's not one strike and you're out.

[03:56:47] Speaker 05:
Can I just ask you one follow-up question, which is that on Ronald Alfred, which I know you're arguing Oliver McGill's issues, but I think Mr. Smith had looked to you on Ronald Alfred's sentencing, and are you prepared to address that?

[03:57:02] Speaker 06:
I think he looked to me on the question of the 924 and the application of a line.

[03:57:07] Speaker 05:
On that question, on Ronald Alfred, it's an ineffective assistance claim.

[03:57:14] Speaker 05:
vis-a-vis sentencing because of the Apprentice Question.

[03:57:18] Speaker 05:
And as to that, if it's an Alleen claim, and this is just what I'm not sure it is, but if it's an Alleen claim, how can it have been division performance if at the time of the sentencing, the law was Harris, not Alleen?

[03:57:30] Speaker 06:
Judge, let me be very careful about this.

[03:57:33] Speaker 06:
I don't really want to, it's not really my place, I think, to comment on whether Mr. Alfred has such a claim.

[03:57:39] Speaker 06:
I have made it clear in our brief that we concede that your standard review is for plain error, and I tried to make my arguments as to why I believed it was plain error.

[03:57:47] Speaker 05:
Okay, thank you.

[03:57:55] Speaker 11:
I hope I get the same one minute he got.

[03:57:58] Speaker 11:
Let me make a couple of quick points as quickly as I can.

[03:58:02] Speaker 11:
All of these are addressed to the second issue I raised, the sufficiency issue regarding the Floyd murder.

[03:58:11] Speaker 11:
The government argued that the court's aiding and abetting instruction was correct or close to being correct.

[03:58:20] Speaker 11:
We strongly disagree.

[03:58:23] Speaker 11:
Look, I thought that's what they were arguing.

[03:58:26] Speaker 11:
But the court did give a natural and probable consequences instruction, which Moore held was plain error.

[03:58:34] Speaker 11:
Second, the government argues that we somehow waived our argument by not addressing the Yates issue in our opening brief.

[03:58:46] Speaker 11:
We talked about this.

[03:58:48] Speaker 11:
But think about this.

[03:58:51] Speaker 11:
How was I supposed to anticipate that the government's rather unusual argument that the general Pinkerton instruction, which was never argued to the jury, somehow saved the Floyd murder conviction?

[03:59:07] Speaker 05:
I mean... So how is it different from Moore in that respect?

[03:59:12] Speaker 05:
Because I take your point, but I thought essentially the same sequence of events happened in Moore.

[03:59:17] Speaker 05:
where there was also a claim like this about aiding and abetting a potential interaction with conspiracy.

[03:59:23] Speaker 05:
What the Moore Court said was that the failure of appellate counsel to raise conspiracy in the opening brief apart from a footnote meant that there was forfeiture and here there was no raising of conspiracy at all.

[03:59:35] Speaker 11:
I understand, Your Honor, but what's different about my appeal is that basically this is a sufficiency issue that we raised.

[03:59:43] Speaker 11:
We didn't even address the jury instruction error in our opening brief because we were raising a sufficiency issue rather than a jury instruction issue.

[03:59:53] Speaker 11:
It was only when the government came up with this Pinkerton argument, which really has no merit, that we even had to address the Yeats issue, which was addressed in Moore.

[04:00:06] Speaker 11:
So that's why it only appears in the reply brief.

[04:00:09] Speaker 11:
I'm replying to a rather clever argument that Ms.

[04:00:13] Speaker 11:
Gerardo came up with to try to save the Floyd murder conviction.

[04:00:18] Speaker 11:
We weren't raising a, even though we knew that the aiding and abetting issue was there, again, space limitations prevented me from wanting to raise that as a separate issue.

[04:00:31] Speaker 11:
So it was only when the government came up with this Deus ex machina of the Pinkerton instruction, which nobody argued,

[04:00:40] Speaker 11:
you know, to the jury, that's when I had to address Yates.

[04:00:46] Speaker 11:
And so I would argue strongly that that issue is preserved, and there was no reason to address it, since unlike the situation in Moore, I was not raising an issue about the aiding and abetting instruction.

[04:01:01] Speaker 11:
I was raising a sufficiency issue.

[04:01:03] Speaker 09:
And that clearly distinguishes the case.

[04:01:06] Speaker 09:
Does the sufficiency have to be evaluated by the legal principles?

[04:01:09] Speaker 09:
Excuse me, Your Honor?

[04:01:10] Speaker 09:
Does sufficiency have to be evaluated in light of the legal principles?

[04:01:14] Speaker 11:
Oh, absolutely it does.

[04:01:16] Speaker 09:
Well, it does include Pinkerton.

[04:01:18] Speaker 11:
Well, our argument is that under either the aiding and abetting instruction or under the Pinkerton theory, there's no evidence to support it.

[04:01:27] Speaker 09:
I understand how you put it on that.

[04:01:29] Speaker 09:
But that makes the error about aiding and abetting irrelevant.

[04:01:37] Speaker 09:
And the omission of Pinkerton, I guess.

[04:01:39] Speaker 11:
Right.

[04:01:40] Speaker 11:
We're not raising the – we're raising a sufficiency issue.

[04:01:45] Speaker 11:
And our argument is that even though the government came up with this Pinkerton theory, the evidence is insufficient on that as well.

[04:01:52] Speaker 11:
And I would again just urge that I didn't get a chance to go into the spillover argument for lack of time, but I think it's a very strong argument and basically that's our argument for reversing another argument for reversing the conviction on the Simmons murder because the two of them

[04:02:13] Speaker 11:
the two errors spill over into each other very strongly, but also his remaining convictions, for example, on the drug conspiracy.

[04:02:24] Speaker 11:
There's so much – frankly, I'm surprised that other people didn't raise spillover issues, maybe lack of space – but there's so much spillover prejudice in this case against all the defendants because of, you know, the

[04:02:37] Speaker 11:
what was it, 42 different murders that were mentioned, only seven of which pertained to these defendants.

[04:02:43] Speaker 11:
But, you know, they got in all the murders from the first, the Group 1 trial, which resulted in the Moore appeal.

[04:02:50] Speaker 11:
And not only that, but the huge amount of prejudice from all these

[04:02:57] Speaker 11:
404B issues, which I just want to say, even though I did work on the 404B issue, too, I've been a prosecutor and a defense attorney in the federal court for over 35 years.

[04:03:12] Speaker 11:
I've never seen a case this bad with respect to the 404B issue.

[04:03:17] Speaker 11:
This was, as we said, a tsunami of which occupied at least half of the trial.

[04:03:25] Speaker 11:
the 404B, and none of the rules were followed by the judge.

[04:03:29] Speaker 11:
You know, the argument sort of focused on his jury instructions, but we didn't even list all the 404B evidence that improperly came in because, again, space limitations precluded it.

[04:03:41] Speaker 11:
But I had a draft, which had a lot more 404B evidence improperly admitted.

[04:03:47] Speaker 11:
And it was all am... The most outrageous thing of all was something the government did.

[04:03:51] Speaker 11:
It said, before trial, it announced, we have no 404B evidence, Judge.

[04:03:56] Speaker 11:
That's why we're not giving any notice, because we don't have any.

[04:04:01] Speaker 11:
Well, it seems... How can they say that?

[04:04:05] Speaker 11:
I mean, it just boggles the mind.

[04:04:07] Speaker 11:
So I think that's a great issue, and I hope the Court

[04:04:12] Speaker 11:
Thank you.

[04:04:13] Speaker 11:
Does justice to it.

[04:04:14] Speaker 11:
And I really appreciate the length of time you've heard our arguments.

[04:04:18] Speaker 11:
It's been a wonderful argument.

[04:04:20] Speaker 11:
Thank you all.

[04:04:21] Speaker 12:
Thank you.

[04:04:28] Speaker 12:
Just returning to Mr. Seeger's Brady issue.

[04:04:34] Speaker 12:
Just to clarify, Lincoln Hunter's psychological evaluation, the prison records were

[04:04:42] Speaker 12:
discovered after he had testified.

[04:04:44] Speaker 12:
I think I had mentioned that maybe it was right before.

[04:04:47] Speaker 05:
On that question, is your argument on preservation, is it the footnote about a blanket preservation of anything?

[04:04:53] Speaker 12:
Mr. Gerardo is correct.

[04:04:55] Speaker 12:
When the court asked me that, I hesitated because it was not the official appeal issue, the language.

[04:05:03] Speaker 12:
We have the Brady violation because what we did was

[04:05:08] Speaker 05:
But your argument on preservation at this point of the underlying admissibility question, is that blanket footnote?

[04:05:14] Speaker 05:
Yes.

[04:05:14] Speaker 05:
Okay.

[04:05:15] Speaker 12:
So beyond that, we thank the Court for the time, for the work on this style of a case.

[04:05:21] Speaker 12:
On behalf of Mr. Sievers, we appreciate it very much.

[04:05:23] Speaker 12:
Thank you.

[04:05:24] Speaker 05:
Thank you.

[04:05:33] Speaker 05:
Thank you.

[04:05:38] Speaker 03:
Very briefly, in regard to whether there is any Pinkerton theory raised below during argument, I would point the court to pages 52, 67 through 68 of the Joint Appendix, where that is when the government is talking about Mr. James Alfred's involvement in the murder of Thomas.

[04:05:58] Speaker 03:
And I would note that there is nothing

[04:06:01] Speaker 03:
that they argue that the dispute was relevant to the conspiracy.

[04:06:05] Speaker 03:
It was merely a dispute because of Kerry Ball's death and fighting back and forth.

[04:06:10] Speaker 03:
It had nothing to do with the conspiracy.

[04:06:12] Speaker 03:
So therefore, I think that forecloses any Pinkerton argument.

[04:06:16] Speaker 03:
Additionally, I point the court to the case of Jones v. Horn.

[04:06:19] Speaker 03:
where it says that legal theories raised for the first time on appeal will not be heard on appeal.

[04:06:24] Speaker 03:
And this is the first time that the government has raised Pinkerton, and that's all they have done is they have raised it, they have not argued it.

[04:06:32] Speaker 03:
Finally, in regard to the statement that we got froggy,

[04:06:35] Speaker 03:
That, as I stated before, is not supported by anyone who had first-hand knowledge of the murder of Thomas.

[04:06:42] Speaker 03:
Second of all, it was made after the fact two or three years later.

[04:06:45] Speaker 03:
And finally, again, there's no evidence that James Alfred had prior knowledge of the plan to kill Thomas.

[04:06:52] Speaker 03:
And the case law requires prior knowledge, not just him finding out after the fact that Thomas had been murdered as opposed to something else being done to him.

[04:07:08] Speaker 08:
Thank you for your time.

[04:07:08] Speaker 08:
I'll keep it short.

[04:07:10] Speaker 08:
Five of these six defendants now have life sentences based on this trial, and the six seekers has 40 years.

[04:07:17] Speaker 08:
All of them are going to die in prison.

[04:07:20] Speaker 08:
You should have confidence in a trial before you give that firm that sort of a sentence.

[04:07:24] Speaker 08:
Now imagine a trial without an overview witness prevouching for all these nefarious witnesses, with real notice of the tsunami of 404B evidence so that there's fair preparation and proper 404B instructions, without confrontation clause violations, without McGill revealing his stunt belt and yelling 50,000 watts before the jury begins its deliberations, right before they walk out to deliberate.

[04:07:47] Speaker 08:
without the jury being told that all the Gray 1 defendants were convicted by another jury of this same conspiracy, without these outrageous playbook arguments on closing that made all the defense evidence and all the defense attorneys' arguments radioactive, without the individual issues

[04:08:06] Speaker 08:
that all of these defendants have oriented, some of which have even been conceded as error and without a holdout juror removed.

[04:08:14] Speaker 08:
That would be a fair trial.

[04:08:15] Speaker 08:
That you can get if you remand.

[04:08:18] Speaker 08:
True, this trial didn't need to be perfect.

[04:08:23] Speaker 08:
But it did need to have the basics that you expect in any reasonable trial.

[04:08:28] Speaker 08:
Leslie Ann has done a great job trying to defend this thing.

[04:08:31] Speaker 08:
But this is a bad trial.

[04:08:34] Speaker 08:
This is not a fair trial.

[04:08:35] Speaker 08:
This is the zoo of a trial.

[04:08:37] Speaker 08:
It's unlike anything any of us have ever seen, and I suspect anything you've ever seen.

[04:08:42] Speaker 08:
You need to reverse.

[04:08:44] Speaker 05:
Thank you.

[04:08:45] Speaker 05:
This was a complicated case with a great many issues and the court appreciates the work of counsel from both sides in helping to clarify for us and in particular for Mr. Smith, Mr. Hart, Mr. Gilbert, Mr. Retireta, the other Mr. Smith, Ms.

[04:09:00] Speaker 05:
Stavis, you are all appointed by the court to represent the appellants in this case and the court greatly appreciates your assistance.

[04:09:07] Speaker 05:
Case is submitted.