[00:00:00] Speaker 00:
Case number 12-3029 at L, United States of America versus Rico Rodgers Williams appellant.

[00:00:07] Speaker 00:
Mr. Kramer for the appellant, Ms.

[00:00:09] Speaker 00:
Bates for the appellee.

[00:00:12] Speaker 04:
Good morning.

[00:00:13] Speaker 04:
We're operating under a little unusual circumstance.

[00:00:15] Speaker 04:
We're so glad to have Judge Henderson join us.

[00:00:18] Speaker 04:
We can see you, Judge Henderson.

[00:00:20] Speaker 04:
Can you see us or you can see counsel, I presume?

[00:00:24] Speaker 04:
Okay, okay, okay.

[00:00:30] Speaker 04:
Judge Henderson is the senior member of this panel and by right she's the presiding officer today, but she's asked me to preside so that she can join from

[00:00:40] Speaker 04:
an undisclosed location.

[00:00:43] Speaker 04:
So with that in mind, if you'll bear with us, we'll try and get this technology right.

[00:00:48] Speaker 04:
We've practiced it a little bit.

[00:00:49] Speaker 04:
It seems to work just fine.

[00:00:52] Speaker 04:
But we'll need to make certain that Judge Henderson gets the opportunity to ask her questions and to make sure this runs well.

[00:01:00] Speaker 04:
But with that, let's begin, Mr. Kramer.

[00:01:03] Speaker 02:
Thank you, Your Honors.

[00:01:05] Speaker 02:
And may it please the Court, good morning.

[00:01:08] Speaker 02:
In a case, because of time limitations, there's several issues in the case, and if I don't get to any, I don't want, Your Honors, to think that I think they're less important.

[00:01:16] Speaker 02:
I think all the issues are equally meritorious in this case.

[00:01:19] Speaker 02:
They always are.

[00:01:20] Speaker 02:
There are a lot of issues, so I agree that you should take your time.

[00:01:24] Speaker 02:
Sometimes they're not always, but in this case, I think they are.

[00:01:27] Speaker 02:
Let me put it that way.

[00:01:29] Speaker 02:
So my main theme or theory is Mr. Williams, for several reasons, because of the actions of the government and the district court, Mr. Williams did not receive a fair trial in this case.

[00:01:42] Speaker 02:
And in the appellate stage, I have to say the government makes a number of mischaracterizations and omissions on important issues from the record, the main one being

[00:01:53] Speaker 02:
They argue at several points that because of evidentiary issues should not be reversed because of the strength of their case they talk about.

[00:02:02] Speaker 02:
Yet in the district court, both the governments, when asked by the district court, do you think the evidence was close between

[00:02:08] Speaker 02:
murder and manslaughter.

[00:02:10] Speaker 02:
And they said, absolutely.

[00:02:12] Speaker 02:
And they acknowledged that the evidence was very close in this case.

[00:02:15] Speaker 02:
And the district court twice expressed that he thought the evidence was very close in this case between murder and manslaughter.

[00:02:23] Speaker 02:
That's mentioned nowhere in their brief.

[00:02:26] Speaker 02:
And it's very important, it seems to me, in this court's review of the various issues in the case.

[00:02:31] Speaker 02:
The first issue, though, is one that would just simply require outright reversal for sufficiency of the evidence.

[00:02:37] Speaker 02:
For whatever reason, the government never presented any evidence that Mr. Williams lived with his wife on July 3rd, the date of the offense that it's required for on the media and the military.

[00:02:50] Speaker 04:
Well, they didn't identify that date with precision, but you couldn't a reasonable juror looking at all the evidence about the relationship between Williams and his wife.

[00:03:02] Speaker 04:
where he lived and he'd been seen there.

[00:03:04] Speaker 04:
Isn't that a reasonable inference for them to draw on?

[00:03:06] Speaker 02:
No, for a number of reasons.

[00:03:07] Speaker 02:
First of all, they didn't identify really any date when they lived together.

[00:03:12] Speaker 02:
Not only did they have to reside with each other, they didn't even prove where Mrs. Williams lived on July 3rd.

[00:03:21] Speaker 03:
But in June,

[00:03:23] Speaker 03:
a reasonable juror could have concluded that they were living together in June based on the meeting.

[00:03:29] Speaker 03:
And I know you have a response to that, but taking the evidence in the light that we have to take it, couldn't a reasonable juror think at least in June they were living together?

[00:03:38] Speaker 02:
No, not at all.

[00:03:39] Speaker 02:
That's the month when the evidence was, there was, not only was there no evidence they lived together, the evidence was that, contrary,

[00:03:45] Speaker 02:
testimony.

[00:03:47] Speaker 03:
We have the chair's testimony, too.

[00:03:54] Speaker 02:
And there is absolutely the government, when they say there was an inference, there was a meeting in June or early July at Mr. Williams' house, wherever that might have been.

[00:04:06] Speaker 02:
first of all, there was evidence of a meeting in June that was not at Mr. Williams' house.

[00:04:11] Speaker 02:
Both Sims and Cheris testified.

[00:04:14] Speaker 02:
That was a meeting where evidence was given into a book to be kept, and the testimony was that was not at Mr. Williams' house.

[00:04:22] Speaker 02:
There was no testimony of any other meeting in June anywhere, never mind Mr. Williams' house.

[00:04:29] Speaker 02:
The meeting in July was the meeting on the third when these unfortunate events took place.

[00:04:34] Speaker 02:
So there's no testimony at all that he lived with her in June or early July.

[00:04:39] Speaker 02:
Early July would have had to have been the first, second, or third.

[00:04:43] Speaker 02:
And it would be very strange indeed.

[00:04:45] Speaker 03:
But Charis, doesn't Charis put a meeting at his house?

[00:04:51] Speaker 03:
at some point in the time frame there.

[00:04:53] Speaker 03:
And I realize you're going to then say that doesn't extend to July 3rd.

[00:04:55] Speaker 03:
We can deal with that.

[00:04:56] Speaker 03:
But Charis puts himself in a meeting at their house.

[00:05:01] Speaker 02:
In March, April, or May.

[00:05:04] Speaker 02:
Unclear.

[00:05:05] Speaker 02:
Could have been March 1st.

[00:05:06] Speaker 02:
Could have been April 1st.

[00:05:08] Speaker 02:
Could have been as late as possibly May 31st.

[00:05:11] Speaker 02:
But he says the meeting in June was not at his house.

[00:05:16] Speaker 02:
So I guess the simple answer is

[00:05:19] Speaker 02:
It could have, given every influence, in most cases, of the government, it could have been a meeting on May 31st, I guess.

[00:05:26] Speaker 02:
But there's no evidence, you've got to remember, there is no evidence of that.

[00:05:30] Speaker 02:
But in June, the evidence was he was not living with this woman.

[00:05:34] Speaker 04:
But does that then mean that no rational juror could find that he was residing with his wife?

[00:05:40] Speaker 04:
I think that's right, because... The fact, I mean, so what's the sense of, what does residence mean here?

[00:05:48] Speaker 02:
I think we all agreed in the end in the district court that it means living with and that he was living with his wife.

[00:05:55] Speaker 02:
So there was first of all, they were separated.

[00:05:57] Speaker 03:
Pardon me if they're separated temporarily.

[00:06:00] Speaker 02:
Well, that's the key word.

[00:06:01] Speaker 03:
I guess temporarily legal question now than a factual question.

[00:06:05] Speaker 03:
If they're temporarily separated with an unclear intent about the future.

[00:06:10] Speaker 02:
I think the future has to be taken into account because there is the Spencer case where the guy was separated temporarily but then went back to live with his wife or girlfriend in the Spencer case.

[00:06:27] Speaker 02:
In this case, what happened was he left – Mr. Williams left Germany.

[00:06:32] Speaker 02:
His mother testified, came to live with her, and stayed with her.

[00:06:36] Speaker 02:
No mention of Octavia at all, his wife at all.

[00:06:39] Speaker 02:
So you could – a separation could – I think a separation could be permanent or temporary.

[00:06:45] Speaker 02:
In this case, all the evidence is that it was permanent, because the testimony from Sims was that in June he was living elsewhere.

[00:06:52] Speaker 03:
But if it was temporary,

[00:06:54] Speaker 03:
what's the law in your view on whether you're still residing?

[00:06:58] Speaker 03:
Say you move out for a few weeks from your spouse because you're having problems, and your male's still coming there, though, and you still have some possessions there.

[00:07:08] Speaker 02:
I think the law is that you're not residing there when you move out, whether it's for a week or... I think you're talking about a separation.

[00:07:16] Speaker 02:
It would be different for a vacation.

[00:07:18] Speaker 02:
But for a separation, I think you're not living with her anymore.

[00:07:22] Speaker 02:
whether it's temporary or permanent.

[00:07:25] Speaker 02:
I admit that it may be a tougher case if it's temporary, but we don't have that in this case.

[00:07:30] Speaker 02:
It's permanent.

[00:07:31] Speaker 02:
Is that what the statute's trying to get at?

[00:07:33] Speaker 04:
Trying to exclude from its jurisdiction people who are temporarily separated.

[00:07:40] Speaker 02:
Yeah, well, the statute says residing with.

[00:07:43] Speaker 02:
The legislative history emphasizes must, they use the word, must reside with to come within the statutory scheme.

[00:07:53] Speaker 02:
So for whatever reason, and it's not clear why, for whatever reason, Congress was actually emphatic that the person must reside with the Armed Services member to come within the statutory.

[00:08:08] Speaker 02:
Yes, I'm sorry.

[00:08:09] Speaker 01:
Great.

[00:08:10] Speaker 01:
Let me ask you, is there anything in the legislative history or anything in the evidence that wherever he was residing, it was on the base?

[00:08:21] Speaker 01:
It seems to me that the requirement that a citizen reside with an active member of military means on the base as opposed to somewhere else in a foreign country.

[00:08:34] Speaker 02:
It says reside with and has to be independent.

[00:08:39] Speaker 02:
Actually, the house that's in the evidence was not on the base.

[00:08:44] Speaker 02:
There is nothing in the evidence to show that he ever lived on the base, I think, actually, with or without his wife.

[00:08:55] Speaker 01:
All right, so we don't know that a paid resident was on the base.

[00:08:59] Speaker 02:
The house that was identified by the witnesses was not on the base.

[00:09:03] Speaker 02:
It was in a town a little ways away from the base.

[00:09:06] Speaker 02:
When Sim said that Mr. Williams was moving around, living with other people, he didn't say who they were, but there was certainly no evidence that they were on the base either, and there's actually no evidence that they were active-duty military at the time either, but he clearly wasn't a dependent of those people in any event.

[00:09:24] Speaker 02:
So the case was tried by the government on the theory that he lived with Octavia.

[00:09:30] Speaker 02:
And the government didn't even present any evidence that Octavia still lived in Germany on July 3rd, the crucial date.

[00:09:38] Speaker 02:
They presented no testimony of where Octavia lived on that date.

[00:09:42] Speaker 02:
So it's not just

[00:09:44] Speaker 02:
It has to be residing with they have to be living together so They just presented absolutely no evidence of that and there's nothing that would allow an inference either There was no meeting no testimony that there was a meeting at their house in June in fact the testimony about potentially may you're willing to

[00:10:02] Speaker 02:
Sims said April or May is when he – although he had said in earlier testimony that he admitted he had said he had been initiated in March.

[00:10:12] Speaker 02:
So I have to concede that it could have been as late as May, yes, but he was quite – they were both – he and Sims were very specific that the June meeting that they referred to with the book was not at Mr. Williams' house.

[00:10:26] Speaker 02:
So that's as close as the government can get, and the Sixth Amendment requires proof beyond the reasonable doubt.

[00:10:34] Speaker 02:
I mean, the Supreme Court's been pretty emphatic about that in the past.

[00:10:41] Speaker 04:
Could you address the issue of consent or assent?

[00:10:46] Speaker 02:
Absolutely.

[00:10:46] Speaker 04:
Is that what you were going to say?

[00:10:49] Speaker 02:
Okay.

[00:10:49] Speaker 03:
The consent, I also do want to say before... The pregnancy too, I want to get to that.

[00:10:55] Speaker 02:
The issue of consent, that was the whole...

[00:10:58] Speaker 02:
The difference between murder and voluntary manslaughter, which we know the government and the district court conceded was very close, the whole difference is the state of mind, the recklessness.

[00:11:08] Speaker 02:
And that's a subjective, one of the main components of recklessness is a subjective component.

[00:11:14] Speaker 02:
And our whole defense was based on the fact that when

[00:11:19] Speaker 04:
Is that right?

[00:11:20] Speaker 04:
Is it always subjective?

[00:11:22] Speaker 04:
Can't there be instances where the nature of the conduct is just inherently extremely reckless?

[00:11:35] Speaker 02:
to find that the government must prove beyond a reasonable doubt that the defendant acted restricted.

[00:11:43] Speaker 02:
So I think the answer is yes.

[00:11:44] Speaker 04:
There's always a subjective component.

[00:11:46] Speaker 04:
Well, no, but wouldn't there be some circumstances in which the nature of the conduct in which the defendant participates is inherently

[00:11:55] Speaker 02:
uh... reckless inherently excessively reckless but the government still has to prove that the defendant knew that and the jury instructions said that in this case and the government hasn't disputed that and I think the case law is pretty unanimous on that that the government has to prove that there's a the subjective component and there's an objective a little bit of an objective component but the instructions were the fact that a reasonable person would have been

[00:12:22] Speaker 02:
aware of the risk, would not sustain a finding of malice.

[00:12:26] Speaker 02:
So in fact, the jury's instructed that they have to find the defendant had this reckless state of mind, had this subjective state of mind.

[00:12:33] Speaker 04:
So I think the answer is... And as I understand your argument, you're relying on the fact that when Williams was involved in this attack, initiation, hazing, whatever, the fact that Johnson

[00:12:48] Speaker 04:
did not show signs that he was going to die.

[00:12:54] Speaker 04:
But that ought to factor into our analysis of the state of mind of Williams as he's participating with eight other people in beating him up.

[00:13:06] Speaker 02:
It's a little bit more than that.

[00:13:08] Speaker 02:
Well, I guess it's a lot more than that.

[00:13:09] Speaker 02:
First of all, there have been as many as 15 prior initiations and nobody had ever even needed medical attention, never mind been seriously injured.

[00:13:20] Speaker 02:
The testimony was that Sergeant Johnson had no bruising, no blood, other than a little bit of a cut lip, no black eye, no any outward signs.

[00:13:29] Speaker 02:
But the main thing is he was repeatedly asked, both Sims and Sara who testified, he was repeatedly asked, are you OK?

[00:13:37] Speaker 02:
Do you want this to continue?

[00:13:39] Speaker 02:
And they were both testified if he had ever said no, it would have stopped.

[00:13:44] Speaker 02:
That's what I'm getting.

[00:13:45] Speaker 04:
You're relying on Williams' assessment of his state, right?

[00:13:50] Speaker 04:
That Williams is saying, I'm not dying.

[00:13:52] Speaker 04:
I'm not dying.

[00:13:53] Speaker 04:
Go ahead.

[00:13:54] Speaker 04:
And that ought to factor into the state of mind that

[00:14:00] Speaker 04:
I'm sorry, I said it wrong.

[00:14:02] Speaker 04:
The Johnson said, I'm not going to die, and that ought to factor into the state of mind of Williams.

[00:14:08] Speaker 02:
I think there's no better evidence, I think, of whether what a person perceives is the risk than the person who

[00:14:18] Speaker 02:
than Sergeant Johnson's repeated affirmation that he... Well, is that right?

[00:14:22] Speaker 04:
Because there are some areas where we don't care what the victim says, right?

[00:14:26] Speaker 04:
I mean, the whole law of consent, the controversy of the instructions, there's some type of activity that we never look to the victim's state of mind to determine the culpability of the perpetrators, isn't that right?

[00:14:40] Speaker 02:
Yes, and I'm not talking about Sgt.

[00:14:43] Speaker 02:
Johnson's state of mind.

[00:14:44] Speaker 02:
I'm talking about what Mr. Williams observed when Sgt.

[00:14:47] Speaker 02:
Johnson was asked, are you OK, in his... When I say Sgt.

[00:14:52] Speaker 04:
Johnson's state of mind, Sgt.

[00:14:53] Speaker 04:
Johnson's making an assessment that has entered the way you see it.

[00:14:59] Speaker 04:
Sgt.

[00:14:59] Speaker 04:
Johnson is saying, in effect, I'm not going to die.

[00:15:02] Speaker 04:
You're not engaged in an activity that is going to kill me.

[00:15:06] Speaker 04:
So therefore,

[00:15:08] Speaker 04:
Therefore Williams doesn't have the state of mind where he should have known that the person's gonna die I don't I don't mean to misstate your argument.

[00:15:16] Speaker 04:
It's a little bit more nuanced than that, but that's basically it but it is but there's aren't there some types of activities some types of conduct that we just really don't

[00:15:27] Speaker 04:
care about the assessment that's being made by the victim, right?

[00:15:33] Speaker 02:
And that, we agreed when we proposed the instruction, we said that it's, we proposed the instruction that they could consider his actions as consent with respect to the murder charge because of the extreme recklessness that's required for murder.

[00:15:51] Speaker 02:
We didn't say it wasn't anything to do with manslaughter.

[00:15:54] Speaker 02:
And I think the answer to your question is,

[00:15:56] Speaker 02:
No, although I don't remember whether it's yes or no at this point.

[00:16:01] Speaker 02:
But the answer is, in determining the degree of recklessness, what the victim does, we're claiming he couldn't be convicted of manslaughter because of this.

[00:16:13] Speaker 02:
But we claim that the difference between the extreme indifference and wantonness of first degree murder, when you see the person who's participating repeatedly saying, yes, I'm OK.

[00:16:27] Speaker 02:
I want this to continue.

[00:16:28] Speaker 02:
And actually, he was described at various times as hyper, very excited.

[00:16:31] Speaker 04:
What I'm trying to get at, and maybe I'm not doing it well, I mean, it seems to me that when you look at the way the district court treated this, they put this case in the consent box.

[00:16:41] Speaker 04:
And we all know you can't consent.

[00:16:42] Speaker 04:
I'm trying to understand why the district court did that and it seems to me there's a strong argument why they did that because this case looks an awful lot like those consent cases and in those cases we don't

[00:17:02] Speaker 04:
We don't care the state of mind of the victim.

[00:17:05] Speaker 04:
We don't care that they assented to it because there's a certain type of behavior that crosses a line.

[00:17:10] Speaker 04:
And when you cross that line, we don't look at.

[00:17:14] Speaker 04:
the victim and what they're saying.

[00:17:15] Speaker 04:
And so that's what I'm getting at is why don't you think this case is in that fact?

[00:17:22] Speaker 04:
Why can't we say this is the type of activity that is so inherently dangerous that it shows such utter disregard

[00:17:33] Speaker 04:
for the life of another.

[00:17:36] Speaker 04:
You got eight people, not just one person.

[00:17:38] Speaker 04:
This isn't a bar room brawl between two people.

[00:17:41] Speaker 04:
This is eight people ganging up on someone.

[00:17:44] Speaker 04:
Why can't the district court say, why can't we say in that type

[00:17:49] Speaker 04:
of scenario, we don't really care what the victim is saying and the victim showing that, oh, I'm not going to die from this.

[00:17:59] Speaker 04:
It seems to me you put a lot of emphasis on that.

[00:18:02] Speaker 04:
And I'm just wondering how you can get out from under the doctrine of consent, which seems to me to be speaking to a situation where there's just an inherently dangerous activity going on that we don't look to the state of mind of the victim.

[00:18:18] Speaker 01:
Before you answer that, Mr. Kramer, this consent that you talk about

[00:18:24] Speaker 01:
is the consent to me that someone who is either drunk or punch drunk would give.

[00:18:31] Speaker 01:
I don't see why we should give any credibility to it.

[00:18:37] Speaker 01:
He's been hit over and over again.

[00:18:40] Speaker 01:
The first hit knocks him to the ground.

[00:18:42] Speaker 01:
I don't know whether he keeps saying, continue it when he's actually on the ground and they're kicking him.

[00:18:48] Speaker 01:
But to me, it was senseless from the first hit

[00:18:54] Speaker 01:
And what do you do with consent when consent is given by someone on drugs, drunk, or punch drugs?

[00:19:05] Speaker 02:
Well, the problem is it was absolutely, I'll answer both questions, I guess.

[00:19:10] Speaker 02:
Maybe yours first, Judge Henderson.

[00:19:13] Speaker 02:
There was no evidence of that.

[00:19:14] Speaker 02:
In fact, he was described as very hyper at the beginning, and he was described as very hyper throughout, although it lessened somewhat and excited.

[00:19:22] Speaker 02:
Absolutely no testimony that he was ever impaired in any way.

[00:19:27] Speaker 02:
In fact, just the opposite.

[00:19:28] Speaker 02:
Both Sims and Saraglu said he looked just like everybody else through this whole thing, and that he never wheezed, was short of breath, and at the end he looked just like everybody else.

[00:19:40] Speaker 02:
It's not like somebody under the there was absolutely no testimony that any of his Expressions, please.

[00:19:48] Speaker 02:
Yes.

[00:19:48] Speaker 02:
I want this to continue in the excitement and he used different words that I won't use but the excitement that it was anyway the effect had that the

[00:19:59] Speaker 02:
there's absolutely no testimony about that.

[00:20:05] Speaker 02:
To answer your question, Judge Griffin, there is a distinction between the states of mind for murder and manslaughter.

[00:20:12] Speaker 02:
That's always been a distinction, the extreme and wanton disregard that's required for a murder conviction.

[00:20:18] Speaker 02:
And I think it's important to understand that

[00:20:20] Speaker 02:
To do that you have to assess the person's state, the defendant's state of mind.

[00:20:25] Speaker 02:
To do that you have to look at what he viewed was going on and every time Sergeant Johnson was asked he said yes or hell yes or another word and

[00:20:37] Speaker 02:
It's not excluded because we didn't try to exclude it from the manslaughter.

[00:20:42] Speaker 02:
We understood that.

[00:20:43] Speaker 02:
But the cases the government cites, there's one case called Durr where there was an initiation.

[00:20:48] Speaker 02:
It's actually a manslaughter conviction.

[00:20:51] Speaker 02:
And the court said you can't consent to a battery.

[00:20:54] Speaker 02:
Yes, you can't consent to the activity, but the state of mind that distinguishes murder and manslaughter, it's not the consent itself.

[00:21:04] Speaker 02:
It's Johnson's actions and repeatedly saying, yes, I'm OK.

[00:21:08] Speaker 03:
And that's why I think the word consent has gotten everything on the wrong track, perhaps, in the district court.

[00:21:15] Speaker 03:
Because it's really the statements that the victim made about his condition

[00:21:21] Speaker 03:
would show the defendant, in your view, that further punching was not going to kill him or further kicking was not going to kill him or cause him extreme bodily injury.

[00:21:37] Speaker 03:
So it's not consent.

[00:21:38] Speaker 03:
I think consent

[00:21:39] Speaker 02:
I think you're absolutely right.

[00:21:42] Speaker 02:
It was used as a shorthand term, but the district court clearly understood it in pages 368 and 370 of the appendix.

[00:21:50] Speaker 02:
The district court said, I suppose in fairness, it goes beyond the word yes.

[00:21:55] Speaker 02:
Mr. Johnson was asked, are you all right?

[00:21:57] Speaker 02:
Do you want to keep going?

[00:21:58] Speaker 02:
He responded, hell yes, a number of times.

[00:22:00] Speaker 02:
not just once.

[00:22:02] Speaker 02:
The question is whether those responses or statement constitute acquiescence and whether acquiescence can ever be considered.

[00:22:09] Speaker 02:
And then he said about our argument, Judge Friedman said, what he says it's not the issue of consent, it's the difference between the nature of the reckless disregard for second degree murder and the reckless disregard for manslaughter.

[00:22:23] Speaker 03:
When he's saying

[00:22:25] Speaker 03:
Uh, keep going or, you know, I'm paraphrasing now.

[00:22:31] Speaker 03:
Uh, if he had been saying, stop, stop, I can't breathe.

[00:22:34] Speaker 02:
Clearly, the government would have presented that as Exhibit A, and the want and recklessness from her.

[00:22:40] Speaker 03:
Right.

[00:22:40] Speaker 03:
So the fact that he's saying, I'm fine, and again, I'm paraphrasing, perhaps overstating, would be also, it would seem, relevant.

[00:22:50] Speaker 03:
But then the question becomes, are the instructions really flawed, or are you complaining about the way the colloquy proceeded in the closings?

[00:22:58] Speaker 03:
And you say what you say, and then the government comes back and says,

[00:23:04] Speaker 03:
you're wrong on the law, and then that never gets, I guess, cleaned up, is your view, right?

[00:23:09] Speaker 02:
I guess all of the above.

[00:23:10] Speaker 03:
The government came—I said— Let me—I'm sorry.

[00:23:13] Speaker 03:
That's a bad way to phrase it.

[00:23:14] Speaker 03:
If you just had the instructions without what happened in the closing between you and the government counsel, did you have any problem with the instructions standing alone?

[00:23:25] Speaker 02:
Yes, we wanted it to add this thing.

[00:23:28] Speaker 02:
You may consider consent in determining whether the defendant had the necessary malice of forethought to establish the crime of second degree murder.

[00:23:36] Speaker 02:
In other words, we made it clear that it went, we tried to make it clear that it only went to the

[00:23:42] Speaker 02:
distinction between second degree murder and manslaughter.

[00:23:45] Speaker 02:
That was foreclosed.

[00:23:46] Speaker 02:
The district court refused to give it.

[00:23:48] Speaker 02:
The government told the jury the district court's instruction precluded that argument, and that they could not consider the consent, meaning that short, for any purpose, having to do with Mr. Williams' consent.

[00:24:01] Speaker 03:
So I guess my concern, this will be a question for the government, is it possible that the jury went back there and someone in the jury room says,

[00:24:10] Speaker 03:
Well, he kept saying he was OK, so I think it should be manslaughter, not murder.

[00:24:14] Speaker 03:
And another juror says, well, we can't consider that.

[00:24:17] Speaker 02:
That's exactly the argument we made to Judge Freeman and that the government objected to and was rejected.

[00:24:22] Speaker 02:
We made that very argument that said, this is our defense.

[00:24:26] Speaker 02:
We're worried that a juror will go back there and say,

[00:24:30] Speaker 02:
that they could – we can't consider this for any purpose because the government just told them they can't consider it for any purpose.

[00:24:37] Speaker 02:
You denied our instruction that they could consider it.

[00:24:39] Speaker 02:
And therefore, it not only did – so they were precluded from considering it according to the government and according to the instruction.

[00:24:47] Speaker 02:
So that's exactly the argument we made that was rejected.

[00:24:51] Speaker 02:
And I don't see how

[00:24:53] Speaker 02:
It seems to me the most crucial piece of evidence in assessing Mr. Williams' recklessness, state of mind, is if Sergeant Johnson was bleeding everywhere, had a broken arm sticking out, the government would have put that on as clear evidence that Mr. Williams knew he was in great danger and was very reckless and continuing.

[00:25:16] Speaker 02:
If he had said, no, I can't take it anymore, I can't breathe, I'm about to die, I'm going to fall down,

[00:25:23] Speaker 02:
the government would have presented that as Exhibit A. The converse has to be true.

[00:25:28] Speaker 02:
If that's relevant to Mr. Williams' recklessness for first-degree murder, it has to be relevant that Sergeant Johnson's kept saying, I'm fine, hell yeah, continue, I want this to go on, and not just once, but a number of times.

[00:25:42] Speaker 02:
And Judge Friedman

[00:25:44] Speaker 02:
I recognize the very argument we were trying to make and said, no, you can't make that argument.

[00:25:49] Speaker 03:
How do we factor in what happened afterwards and not going, saying not to go to the hospital?

[00:25:53] Speaker 03:
I know there's some testimony that he originally did a phone call.

[00:25:58] Speaker 02:
Right after the initiation, he said, take him to the hospital if he needs to go.

[00:26:02] Speaker 02:
That's hours later, and I don't think you can factor that in at all, frankly.

[00:26:09] Speaker 02:
The state of mind has to be when the acts were committed, and I think it may be... What's your authority to that?

[00:26:19] Speaker 01:
Well, I... We can't... Let me just finish.

[00:26:22] Speaker 01:
We can't consider the depravity in instructing his subordinates, no, don't take him to the hospital.

[00:26:31] Speaker 02:
I think it's a Supreme Court case that talks about that the recklessness is at the time of the offenses, but I will try to find it in, well, for rebuttal if I have any time left, I apologize.

[00:26:50] Speaker 02:
But it's clear that the recklessness is state, I mean, you can,

[00:26:53] Speaker 02:
There's a couple of cases the government sites where they beat up a person threw him in a ditch and Left and they said leaving and failing to get a medical care, but that's right at the time of the events There's no case that talks about hours later And and again cherish could have taken them to the hospital.

[00:27:11] Speaker 02:
It's just mr Williams at that point is is scared But I don't think it has anything to do with his state of mind at the time and matter of fact at the time

[00:27:20] Speaker 02:
Saraglu and Simms both said Sergeant Johnson looked the same as everybody else did after these initiations, and no difference.

[00:27:29] Speaker 02:
He was winded.

[00:27:30] Speaker 02:
I mean, he was a little tired, but he wasn't wheezing or gasping for breath or out of breath.

[00:27:35] Speaker 02:
Saraglu, who had medical training, said,

[00:27:37] Speaker 02:
I never would have left if I thought he was in any danger and said that he looked fine.

[00:27:42] Speaker 02:
Even Cheris, who was his friend, said when he first saw him on the ground, he looked fine.

[00:27:47] Speaker 02:
He was joking.

[00:27:48] Speaker 02:
It wasn't until later.

[00:27:50] Speaker 02:
So I don't think that you can, that that goes toward the state of mind at the time of the events, what happened, I guess, three or four hours later, depending on the timeframe.

[00:28:00] Speaker 03:
Can you talk a bit about the pregnancy issue?

[00:28:03] Speaker 03:
In most of the cases, the victim was pregnant.

[00:28:07] Speaker 02:
I think it's about half.

[00:28:09] Speaker 02:
But the courts equate that.

[00:28:11] Speaker 02:
There's two major cases where the family where it talks about the Illinois case is a good one for you.

[00:28:20] Speaker 02:
And the courts don't seem to distinguish between the two.

[00:28:23] Speaker 02:
They find the two equally irrelevant and equally extremely prejudicial.

[00:28:29] Speaker 02:
Judge Friedman admitted in the post trial proceedings that he had made a mistake, that this evidence was irrelevant.

[00:28:35] Speaker 02:
The government doesn't even acknowledge that in their brief.

[00:28:38] Speaker 02:
They just, they argue it was, they continue to argue it was relevant under a theory that Judge Friedman said they had abandoned in the district court.

[00:28:46] Speaker 02:
This theory that it meant Sergeant Johnson didn't want, was not in it to be killed, which is totally irrelevant.

[00:28:54] Speaker 02:
his reasons for wanting to have the initiation or his state of mind as to why he wanted to have the initiation or how he went into it.

[00:29:02] Speaker 02:
But so Judge Friedman admitted afterwards it was irrelevant.

[00:29:06] Speaker 02:
So the government doesn't even address the prejudice issue in their brief.

[00:29:09] Speaker 02:
They pretend as if

[00:29:12] Speaker 02:
judge Friedman had said it was relevant.

[00:29:15] Speaker 02:
The only thing they do say about prejudice is the strength of their case, which is I just have talked about, I know that in the district court, they admitted it was an extremely close case.

[00:29:25] Speaker 02:
The case law is that this evidence, even when not objected to,

[00:29:29] Speaker 02:
warrants reversal.

[00:29:30] Speaker 02:
There's three cases, I think, that reverse it even when there was no objection to it because it's so prejudicial.

[00:29:37] Speaker 02:
And they brought out these, by the way, Judge Friedman said we had objected to it.

[00:29:41] Speaker 02:
We didn't need to object anymore.

[00:29:43] Speaker 02:
We had done exactly what we needed to do.

[00:29:45] Speaker 02:
The government doesn't acknowledge that in their brief either.

[00:29:48] Speaker 02:
But this evidence is of no relevance at all.

[00:29:53] Speaker 02:
utterly irrelevant and extremely prejudicial.

[00:29:56] Speaker 02:
There was difference of opinion, but even Judge Friedman said he heard the wimp ring when Mrs. Johnson walked out of the courtroom.

[00:30:04] Speaker 02:
She was asked how she told him that she got pregnant, which was irrelevant, on their anniversary.

[00:30:11] Speaker 02:
He came home to help out while she was pregnant on the first doctor visit, and then they brought out the date of birth and the name.

[00:30:19] Speaker 02:
They had even told Judge Friedman they wanted to put in two pictures to show that the baby looked like Sergeant Johnson when he was a baby.

[00:30:28] Speaker 02:
I mean, I think that tells you why they were trying to put it in, because it was so prejudicial.

[00:30:33] Speaker 02:
Now, those two pictures didn't come in, but this testimony, I cannot

[00:30:38] Speaker 02:
you cannot overstate how prejudicial this testimony was.

[00:30:42] Speaker 02:
And the courts, every court we've cited has recognized it, and the government doesn't cite one case because they ignore the cases that talk about that.

[00:30:52] Speaker 02:
So they don't have any counter case that says that it's okay.

[00:30:55] Speaker 02:
The two cases

[00:30:56] Speaker 02:
that don't reverse on it.

[00:30:58] Speaker 02:
One was because the testimony came from the medical examiner and the government never referred to it in their opening or closing.

[00:31:05] Speaker 02:
And then there's another case where there was overwhelming evidence of a drunk driving with multiple eyewitnesses.

[00:31:12] Speaker 02:
This case, again, a close case, and the testimony was extensive, very dramatic, can't be overstated.

[00:31:20] Speaker 02:
And the other thing was the government started its closing argument by saying he went home to his pregnant wife.

[00:31:26] Speaker 02:
I mean, that's the way they started the closing argument.

[00:31:28] Speaker 02:
That was the first thing they said in closing.

[00:31:31] Speaker 02:
So the prejudicial value of this was extreme, to say the least.

[00:31:35] Speaker 02:
And as I said, the government in their brief doesn't address any of the cases or even acknowledge that Judge Friedman said I made a mistake here.

[00:31:44] Speaker 02:
It was irrelevant testimony.

[00:31:47] Speaker 02:
I guess I'll leave it at that.

[00:31:48] Speaker 02:
Do you have any more questions?

[00:31:50] Speaker 04:
Judge Henderson, do you have any more questions for Mr. Kramer?

[00:31:52] Speaker 04:
No.

[00:31:52] Speaker 04:
Okay.

[00:31:52] Speaker 04:
Thank you.

[00:31:53] Speaker 04:
Thank you very much.

[00:31:54] Speaker 04:
We'll give you some time back on that.

[00:31:55] Speaker 04:
Thank you so much.

[00:32:08] Speaker 00:
is based morning it is the part market on behalf of the United States I'd like to address the three issues that appellant address and I'll start with the efficiency question on the residing with here the evidence that the government presented was sufficient for a rational juror to conclude

[00:32:32] Speaker 00:
A parent lived with his wife and resided with her at the time, the relevant time, the time of the offense.

[00:32:38] Speaker 04:
Do you agree, though, that the latest date that we can definitely get them together is May?

[00:32:44] Speaker 00:
No.

[00:32:45] Speaker 04:
What's the later date and what's the basis for it?

[00:32:47] Speaker 00:
So I would point to two separate pieces.

[00:32:50] Speaker 00:
First is that there was unqualified testimony from three separate witnesses identifying the house, that that was their house, and that appellant's wife, Octavia, lived at that house.

[00:33:00] Speaker 04:
But there was never a time frame associated with that, right?

[00:33:03] Speaker 04:
I mean, at the very least, this is pretty poor evidence of a jurisdictional element here, right?

[00:33:14] Speaker 00:
I agree that there could have been additional evidence.

[00:33:17] Speaker 04:
This isn't hard to do.

[00:33:19] Speaker 04:
This isn't hard to put on evidence of presence.

[00:33:21] Speaker 03:
Unless they didn't live together.

[00:33:22] Speaker 04:
Yeah, exactly.

[00:33:24] Speaker 00:
I agree that there could have been additional evidence.

[00:33:26] Speaker 00:
And the way that this played out at this trial, I mean, I think that at the time the MJOA was made, I'm

[00:33:32] Speaker 00:
sure that a prosecutor in that position would wish that they could turn the clock back and ask an additional question.

[00:33:38] Speaker 00:
But the question that this court has to address is whether, given the evidence that there was, was it sufficient?

[00:33:44] Speaker 00:
And it's a sufficiency review, all of the inferences drawn in the light most favorable to the government.

[00:33:50] Speaker 00:
And where there are three witnesses who testify and there is a time frame,

[00:33:53] Speaker 00:
There's a 2004 to 2005 time frame that's generally put over the, that's their house, that's where a pellet was living and his wife was living.

[00:34:02] Speaker 00:
And then you add on top of that a narrowing down the time frame using Charles' testimony.

[00:34:09] Speaker 00:
And I would say that... And that gets us to... June, at least, and possibly into July.

[00:34:15] Speaker 03:
Mr. Kramer says it only gets you to May because the meeting in June was not there.

[00:34:20] Speaker 00:
Well, and I think that's a flaw in Appellant's argument.

[00:34:23] Speaker 00:
He's assuming that there is one meeting in June when, again, drawing the inferences in the light most favorable of the government, there is direct testimony from Sims that they met at least twice a month.

[00:34:35] Speaker 00:
There is no testimony that June was different somehow.

[00:34:39] Speaker 00:
You have Charis, who's testified that he's joined the gangster disciple organization, the group, in April or May.

[00:34:49] Speaker 00:
and that he attended a meeting at Appellant's house.

[00:34:52] Speaker 00:
I mean, he's clear.

[00:34:52] Speaker 03:
I attended a meeting.

[00:34:54] Speaker 03:
But Sim says Williams is living elsewhere, moving around.

[00:34:58] Speaker 03:
And that's what creates a bit of a problem here for you.

[00:35:04] Speaker 00:
So I think looking at the words that Sim's testified to, he says that they're having marital problems.

[00:35:14] Speaker 00:
I think we were talking about, are they separated?

[00:35:16] Speaker 00:
And what would the effect of a separation be?

[00:35:19] Speaker 00:
somewhat telling that no one is suggesting that they are separated or divorced.

[00:35:23] Speaker 00:
They're having some problems, marital problems.

[00:35:25] Speaker 00:
That he's staying with people and he was all over the place.

[00:35:28] Speaker 00:
I think from that statement, you can draw from that, that he has not moved out.

[00:35:34] Speaker 00:
He doesn't have a new residence.

[00:35:36] Speaker 00:
You know, he's

[00:35:38] Speaker 00:
getting in some whatever it may be that he's fighting with his wife and you know on this night he's staying doesn't want to stay there and is staying somewhere else.

[00:35:46] Speaker 03:
Do we know that Octavia still lived in Germany as of July 3rd?

[00:35:50] Speaker 00:
What we know is, again, the testimony was unqualified, that that's their house where Appellant lived with Octavia, not that it became Appellant's house.

[00:35:59] Speaker 00:
We know that at the time Appellant has separated from the military, which is in May of 2005, that Octavia gets dependent status for her husband, for Appellant, which places her still

[00:36:14] Speaker 00:
To be a dependent of someone, they must still be located there and serving in the military.

[00:36:18] Speaker 00:
And then we have added on top of that, that Charles testified that that meeting, again, as Judge Friedman parsed through that evidence with the inferences, that meeting in June or very beginning of July, Charles testifies that not only was it at Appellant's house, but that Octavio was actually present at that meeting.

[00:36:37] Speaker 00:
Appellant has tried to point to the evidence of what happens after.

[00:36:43] Speaker 00:
Sergeant Johnson has died to suggest that that is an indication that appellant had no intention to continue residing with the remain.

[00:36:54] Speaker 00:
That moment, that's a game changer.

[00:36:57] Speaker 00:
The fact that he, at that point, goes to one of the other members of the organization and says, I need the dues because I've got to get out of here because they're going to come out after me and leaves the country,

[00:37:07] Speaker 00:
I don't think that has any bearing or relevance on the question of before he found out that Sergeant Johnson had died as a result of this initiation and jump in, that he was planning, in fact it shows he wasn't planning before that to leave Germany.

[00:37:26] Speaker 00:
And that's an inference that again the jury could have drawn.

[00:37:33] Speaker 00:
No one has suggested that reside with requires that the person be on every night surrounding the critical time frame, be physically present in the house.

[00:37:48] Speaker 00:
It must be that you have a place where you regularly live or have a home, an established abode, and that is what the evidence and the inferences from the evidence established.

[00:38:00] Speaker 00:
I'd like to address the second issue, the consent issue.

[00:38:03] Speaker 00:
I think in looking at the consent question, it's important to step back and understand how this all played out over the course of the trial.

[00:38:15] Speaker 00:
Everyone was very clear before the trial began that consent was not a defense.

[00:38:24] Speaker 00:
And consent is a term that has a particular meaning

[00:38:30] Speaker 00:
And what Appellant then attempted to do was to make the argument that he's now referring to.

[00:38:38] Speaker 00:
I wanted to have the jury consider the facts, the circumstances, how Sergeant Johnson looked at the time of the jump in.

[00:38:45] Speaker 00:
But he tried to make that argument by calling it consent.

[00:38:50] Speaker 00:
And that's where I think there's an issue here in what the government picked up on in rebuttal and said, the judge is going to tell you consent is not a defense.

[00:39:01] Speaker 00:
So understanding that is also, I think, important.

[00:39:05] Speaker 00:
If you look at Appellant's closing, he was not foreclosed from making these factual arguments that he is now advancing.

[00:39:13] Speaker 03:
But then the government comes in and says that that's all wrong, I think.

[00:39:20] Speaker 03:
And that's where it's left.

[00:39:23] Speaker 03:
And so what concerns me is what I said to Mr. Kramer.

[00:39:26] Speaker 03:
Is it possible that when they go back in the jury room, a juror says,

[00:39:31] Speaker 03:
Well, I think it should be manslaughter, not second degree, because Johnson kept saying, I'm paraphrasing now, I'm okay.

[00:39:40] Speaker 03:
And another juror says, well, we can't consider that.

[00:39:44] Speaker 03:
That's what it seems to me, that there's a possibility of that, and that concerns me.

[00:39:49] Speaker 00:
So how do you respond to that?

[00:39:53] Speaker 00:
both parties here were asking the jury to consider these objective facts and circumstances about kind of what unfolded at this jump in.

[00:40:01] Speaker 00:
And that the objection, or it's an objection, the

[00:40:05] Speaker 00:
comment that the government made in rebuttal was very closely tied to the use of the word consent.

[00:40:11] Speaker 00:
It's unquestioned that in closing, appellant argued, the judge is going to tell you consent is not a defense, but you can consider that in assessing state of mind.

[00:40:21] Speaker 00:
And that's what the government picked up on and argued, no, no, no, you can't consider consent.

[00:40:26] Speaker 00:
But both parties then went on, and appellant went on separate from that passage that kind of

[00:40:31] Speaker 00:
Spurred the comments from the government in rebuttal to it multiple times during closing argued to the jury consider The fact that his appearance during the jump-in consider that Sarah glue said that he didn't think that he needed any treatment consider that he was telling you know, essentially telling

[00:40:49] Speaker 00:
the members of the group at that time did, he was okay.

[00:40:53] Speaker 00:
And Appellant had the opportunity to make that argument.

[00:40:56] Speaker 00:
The government's rebuttal comments were very focused on consent.

[00:41:00] Speaker 00:
And then you look at the judge's instructions.

[00:41:02] Speaker 03:
The government says, Mr. Kramer gave you some incorrect law.

[00:41:10] Speaker 03:
Consent is never a defense to murder, but then it goes on.

[00:41:14] Speaker 03:
Under no circumstances is consent a defense to the crime of homicide, so remember that.

[00:41:18] Speaker 03:
You can't even consider it in its intent or anything else.

[00:41:23] Speaker 03:
You just cannot.

[00:41:25] Speaker 03:
Was that correct?

[00:41:28] Speaker 00:
I don't know if this is closing.

[00:41:30] Speaker 00:
I don't know that we're always our most eloquent at that time.

[00:41:32] Speaker 00:
But the idea, you cannot consider consent.

[00:41:35] Speaker 00:
But that's the key.

[00:41:36] Speaker 03:
This is the key point on which I think a juror could say, well, that's going to sway me one way or another between manslaughter and murder, is this exact point, which is the defendant's appreciation of how hurt Johnson already was.

[00:41:56] Speaker 03:
I'm not sure what the juror would think based on how this transpired.

[00:42:01] Speaker 00:
So I have two responses.

[00:42:03] Speaker 00:
First, the comment, again, is you can't consider consent.

[00:42:06] Speaker 00:
If consent was a defense as to the mens rea element, it'd be a defense.

[00:42:10] Speaker 00:
Yeah, consent's the wrong word, right?

[00:42:11] Speaker 00:
It's the wrong word.

[00:42:12] Speaker 03:
Right.

[00:42:12] Speaker 03:
But that doesn't mean, I think what happened potentially, at least this is what I'm thinking about, is that Mr. Kramer in the closing was talking about

[00:42:25] Speaker 03:
the appreciation of the condition of the victim.

[00:42:29] Speaker 03:
And then that got lumped into the word consent.

[00:42:32] Speaker 03:
And Judge Friedman recognized this then in the argument in the questions when you had an argument outside the presence of the jury.

[00:42:40] Speaker 03:
But then when the prosecutor comes back in closing and really lumps it all together and says you can't consider any of that in intent for anything else, the juror would probably walk away from that thinking, well, if the prosecutor's right about that, I can't consider it at all.

[00:42:55] Speaker 00:
Well, so I think, stepping away for a moment, but I want to come back to the arguments that appellant was able to make in closing.

[00:43:03] Speaker 00:
The court did not endorse the prosecutor's statements in rebuttal, but in fact suggested to the jury that after the arguments and after what they heard as this debate over what the judge was going to instruct them, instruct the jury, since the jury had not yet been instructed, the judge was very clear with the jury that we've made some minor changes after these arguments and I'm going to tell you the law and you are to follow the law as I instruct you.

[00:43:27] Speaker 00:
And the court's instructions were that consent was not a defense.

[00:43:31] Speaker 00:
The court, I think both in the instructions that were given, separately instructs the jury that they can consider all of the evidence direct and circumstantial, and that the attorney's arguments are not evidence, and that it's the judge's instructions that are the instructions the jury should follow.

[00:43:50] Speaker 00:
And I think it's important to factor into the consideration here.

[00:43:53] Speaker 00:
Judge Friedman also offered to appellant in the discussion that was happening after closing arguments, offered saying, look, the curative instruction that you're proposing, I'm not going to give it, because it has the same problem.

[00:44:08] Speaker 00:
It uses the word consent.

[00:44:09] Speaker 00:
I think what you're trying to get at is the facts that go to mens rea.

[00:44:14] Speaker 00:
Would you like the state of mind instruction?

[00:44:17] Speaker 00:
And appellant says no.

[00:44:19] Speaker 00:
And so I think even without that instruction, which appellants declined, the instructions here in limiting Judge Friedman made modifications.

[00:44:30] Speaker 04:
And how would that instruction have helped the jury?

[00:44:34] Speaker 00:
To the extent that there was, and I think it could have helped,

[00:44:39] Speaker 00:
I think it helps flesh out this difference.

[00:44:41] Speaker 04:
I understand that you think the jury didn't need any help.

[00:44:43] Speaker 04:
Everything was fine.

[00:44:45] Speaker 04:
But what would the state of mind instruction have done?

[00:44:49] Speaker 00:
Helping to inform the jury about the fact that they can consider all of the facts and circumstances in assessing appellant's state of mind, in those facts and circumstances, as appellant argued to the jury.

[00:45:02] Speaker 00:
And I'm looking at pages 42 and 43 of his closing, which is separate from the consent piece.

[00:45:08] Speaker 00:
He argued no one said he needed medical attention.

[00:45:12] Speaker 00:
He said he wasn't confused.

[00:45:13] Speaker 00:
Sarah Glue was not concerned.

[00:45:16] Speaker 00:
It specifically said because Sergeant Johnson kept responding and saying he was okay.

[00:45:20] Speaker 00:
He had no idea that anything like this would happen.

[00:45:23] Speaker 00:
He was elated that he made it through.

[00:45:25] Speaker 00:
Those types of facts and circumstances and the government may disagree that that's really what the evidence showed here and I think that's another piece that's relevant to

[00:45:34] Speaker 00:
the court's consideration of the consent issue.

[00:45:36] Speaker 00:
But the appellant had the opportunity, and by the judge instructing the jury that consent was not a defense, yet telling the jury that they were free to consider all of the evidence, not striking evidence or arguments as improper, not endorsing the government's rebuttal, that that would allow the jury to have understood that to the extent the appellant was asking them to look at how everything played out,

[00:46:02] Speaker 00:
not whether Johnson subjectively consented to this, but how the circumstances played out, that that was before the jury and that they could have considered it.

[00:46:14] Speaker 03:
You agree it's relevant if he's saying, I'm fine, the victim is saying, I'm fine, I'm okay.

[00:46:21] Speaker 03:
That's relevant to the juror's evaluation of manslaughter versus second degree.

[00:46:26] Speaker 00:
I agree that that, I mean, I think this is all depending on the facts and circumstances, but that that could be

[00:46:33] Speaker 00:
a fact that is relevant depending on the other facts and circumstances in assessing a pellet state of mind.

[00:46:41] Speaker 03:
And I'd say picking up on- Because if he was saying, stop, I can't breathe,

[00:46:47] Speaker 03:
I can't breathe, you would surely say that that's relevant.

[00:46:52] Speaker 00:
I agree.

[00:46:53] Speaker 03:
So the opposite has to be the same, too, if you say I'm fine, keep going, as part of this process that they've done many times before.

[00:47:00] Speaker 00:
But then let's step back and look at this distinction between second degree murder and manslaughter and how it was presented to this jury based on the evidence and based on the arguments.

[00:47:10] Speaker 00:
The distinction that

[00:47:11] Speaker 00:
between those two, the government, the argument that the government made to the jury was look at after those statements of I'm, you know, hell yeah, the kind of I'm fine type statements, after that, what happens?

[00:47:23] Speaker 00:
During this six minute jump in, he's falling back into the other members of the group, being held up while the punches continue, more punches to the face, he's fallen to the ground, he's unable to get up.

[00:47:37] Speaker 03:
The face doesn't show much injury though, right?

[00:47:39] Speaker 03:
There's no broken,

[00:47:42] Speaker 03:
bones, right?

[00:47:43] Speaker 00:
That's true.

[00:47:45] Speaker 00:
But there's blood.

[00:47:47] Speaker 03:
And I say that not to minimize what happened.

[00:47:50] Speaker 03:
I say that only to the evaluation of the defendant's appreciation of the risk.

[00:47:56] Speaker 00:
He's fallen to the ground.

[00:47:58] Speaker 00:
The testimony was that at what the rules of this organization were was that at a jump in, if someone can't get back up, it's done.

[00:48:04] Speaker 00:
That's not what happened here.

[00:48:06] Speaker 00:
He's on the ground.

[00:48:07] Speaker 00:
There's testimony he's curled in the fetal position, while appellant and others following suit kick him and stomp on him.

[00:48:15] Speaker 00:
At this point, there's no suggestion that he's indicating I'm fine.

[00:48:19] Speaker 00:
or keep going, I'm ready to go, but there's testimony that his face, when someone with the flashlight sees his face, he looked terrified, he looked scared.

[00:48:28] Speaker 00:
And that's the kind of piece that the government latches onto and asks the jury, consider those facts in its closing argument.

[00:48:36] Speaker 00:
That's malice.

[00:48:37] Speaker 00:
And so nothing about kind of this consent

[00:48:41] Speaker 00:
issue and whether the jury could have, which again, I don't think that they could have been confused, and they certainly didn't indicate through any questions that they were confused by this.

[00:48:54] Speaker 00:
I think it's somewhat of a red herring to say that that's the core key piece of the issue.

[00:49:01] Speaker 00:
The government, I think, accepted that, elicited that evidence, but latched on to what happened after that, what happened after Sergeant Johnson stopped saying anything indicating that he was okay to continue on.

[00:49:15] Speaker 04:
How far into the six minutes did he stop saying he's okay?

[00:49:22] Speaker 04:
I don't have a precise answer to give that, but I think that there's... How far into the six minutes did Sergeant Johnson stop saying, in effect, continue?

[00:49:36] Speaker 04:
I think you could possibly... Isn't that critical, that question?

[00:49:39] Speaker 00:
Well, there's... No, I think that the evidence shows that it was not...

[00:49:45] Speaker 00:
Certainly not once he had fallen back into the group and was on the ground.

[00:49:49] Speaker 00:
And piecing that together, I think that the evidence was that he said he was ready at the beginning.

[00:49:56] Speaker 00:
After the first punch, he got back up and reaffirmed that.

[00:49:59] Speaker 00:
That he then was knocked down, I believe, again.

[00:50:01] Speaker 00:
And then the next piece of the jump in that's testified to is kind of the mass melee when he's fallen back and being held up

[00:50:10] Speaker 00:
into the group.

[00:50:11] Speaker 00:
And at that point, which I don't know precisely how many seconds, but I think the inference and the evidence there is that it wasn't very far in, at that point, there's no more testimony or suggestion that he's saying or being asked, are you ready to keep going?

[00:50:27] Speaker 00:
And certainly not once he's on the ground.

[00:50:30] Speaker 01:
This day, is the autopsy report an evidence?

[00:50:39] Speaker 01:
Was it used?

[00:50:40] Speaker 00:
I believe, no it is not in evidence.

[00:50:44] Speaker 00:
There was testimony, but the report itself was not.

[00:50:48] Speaker 00:
I think there were certain photographs were introduced, but not the report itself.

[00:50:55] Speaker 00:
So unless there are further questions on consent, I'd like to address the third issue, which is the testimony about the pregnancy.

[00:51:01] Speaker 00:
The government has made in its brief and made before the trial court its arguments as to relevance, and we stand by that.

[00:51:07] Speaker 00:
But I think this court does not need to address that issue, because you can resolve this issue on the fact that the evidence that was admitted here was harmless.

[00:51:19] Speaker 03:
And that is because- Does any other court said that?

[00:51:23] Speaker 03:
In a case where there's pregnancy evidence like this?

[00:51:29] Speaker 00:
Yes.

[00:51:30] Speaker 00:
I think the two cases that Judge Friedman cited, I believe are Lewis and Oronoa Randall, both find

[00:51:41] Speaker 00:
no prejudice given the facts and circumstances of those cases.

[00:51:45] Speaker 03:
Different circumstances there, but it's gotta be somewhat prejudicial.

[00:51:52] Speaker 03:
It's the lead-off, and the prosecutor knows it because it's the lead-off and the closing statement.

[00:51:57] Speaker 00:
So it's the lead-off to the closing statement because the closing starts with a story, which was kind of one of the issues that Appellant had created in this case of why, how did we get here?

[00:52:08] Speaker 00:
How did we get to this jump in?

[00:52:10] Speaker 00:
And the story is not to incite the jury with any suggestion that they should be thinking about a child left behind.

[00:52:21] Speaker 00:
But the story is simply to understand, why does Sergeant Johnson want to join the gangster disciples?

[00:52:27] Speaker 00:
Why did he?

[00:52:29] Speaker 00:
you know, start this process.

[00:52:30] Speaker 00:
And it's because he was about to separate from the military.

[00:52:34] Speaker 00:
He was planning for how he was going to start this business at home, where his family was going to be.

[00:52:40] Speaker 00:
And I think that it is the first reference, but it is not highlighted in any sense as in the manner in which this testimony could become prejudicial.

[00:52:51] Speaker 00:
It's simply part of that background piece of the story.

[00:52:56] Speaker 04:
What's your response to the whimpering?

[00:53:00] Speaker 00:
So first, there's no suggestion in the record that there was any emotion at the time that these particular questions were asked.

[00:53:07] Speaker 00:
They were asked on direct.

[00:53:08] Speaker 00:
She then goes through cross and redirect.

[00:53:12] Speaker 00:
And there's no further mention of the pregnancy testimony.

[00:53:17] Speaker 00:
At the time that Kenneka Johnson is leaving the courtroom,

[00:53:22] Speaker 00:
I think it's understandable and perhaps to be expected that this was highly emotional both for her to testify in a trial related to her husband's death and that there are other family there.

[00:53:33] Speaker 00:
I'm not sure that the whimpering, it's not connected to this piece of pregnancy testimony.

[00:53:40] Speaker 00:
It's separated in time.

[00:53:42] Speaker 04:
from that and the record judge Friedman said that he thought this was a close case.

[00:53:47] Speaker 04:
The distinction between murder and manslaughter.

[00:53:51] Speaker 04:
In what sense was he speaking?

[00:53:55] Speaker 00:
I think the context in which that statement and the statement by the trial prosecutor were made were in discussing the legal distinction, the degree of recklessness in a sufficiency argument about what needs to be shown for second degree murder as opposed to involuntary manslaughter.

[00:54:14] Speaker 00:
And I think it's possible understanding that those comments are motivated by the idea that it is a fine distinction.

[00:54:22] Speaker 00:
It's a distinction of degree, of is it reckless or extreme recklessness.

[00:54:29] Speaker 00:
Even if you take the comments to be

[00:54:33] Speaker 00:
somewhat of a comment on the strength of the evidence as a whole.

[00:54:37] Speaker 00:
I think you also can look to the fact that Judge Friedman, who understands, you know, harmlessness analysis himself, even after he, you know, goes to the analysis of questioning what the relevance of the pregnancy testimony, he himself, having sat through this entire trial and understanding his view of the evidence,

[00:54:56] Speaker 00:
would find that this was harmless given the context of this case.

[00:55:01] Speaker 00:
So to the extent that you are looking again,

[00:55:04] Speaker 00:
prosecutor's view, the district court judge's view are not binding on this court.

[00:55:09] Speaker 00:
It's this court's view of the evidence that is what matters.

[00:55:13] Speaker 00:
But to the extent you are looking, he himself thought that this pregnancy testimony in context was, he said, it would have been harmless.

[00:55:21] Speaker 04:
Is it your argument that this type of activity was inherently excessively reckless?

[00:55:32] Speaker 04:
that when eight people are going to beat up on someone that we're dealing with the type of activity in which

[00:55:39] Speaker 04:
we can infer that the requisite malice is there, because it's just such a dangerous activity.

[00:55:45] Speaker 00:
I think the jury absolutely could have found that, and that it would be just based on the activity.

[00:55:53] Speaker 00:
And that's what the government was asking, essentially, the jury to do.

[00:55:55] Speaker 00:
And the case law is clear that even though the government must also prove that the defendant was for second degree murder, aware of that risk, that awareness

[00:56:03] Speaker 00:
can be proven by the nature of the acts themselves here.

[00:56:08] Speaker 00:
And I think in what the government, the nature of that activity, it wasn't even just the group.

[00:56:13] Speaker 00:
It was at the point that he is held up by others and on the ground.

[00:56:19] Speaker 00:
That is the key piece that pushed this over the leg.

[00:56:23] Speaker 03:
I'm not defending it, but they've done it 15 times before.

[00:56:27] Speaker 03:
And there's been no medical issues with that.

[00:56:30] Speaker 03:
Presumably, they're doing the same kind of thing here.

[00:56:33] Speaker 00:
Well, the evidence showed exactly the contrary, which was there were descriptions from Sims and Sergalos.

[00:56:38] Speaker 03:
There was some taking here that didn't occur in the others, I understand.

[00:56:41] Speaker 00:
I mean, they described this as unusual.

[00:56:43] Speaker 00:
There was testimony that there were.

[00:56:44] Speaker 04:
Did this last longer, or this just lasted longer than the way that it did in Chicago?

[00:56:48] Speaker 04:
Remind me.

[00:56:49] Speaker 00:
So I think that the evidence showed that the Ramstein set of the gangster disciples had a standard six-minute jump in.

[00:56:57] Speaker 00:
This lasted slightly longer.

[00:56:58] Speaker 00:
There was testimony about once the timekeeper was calling time, it was still going, and time had to be called multiple times.

[00:57:07] Speaker 00:
But there was very clear testimony.

[00:57:09] Speaker 01:
weren't there twice as many people participating in this?

[00:57:14] Speaker 00:
There were, I think, possibly twice as many, if not more, based on the various pieces of four to six and nine here.

[00:57:23] Speaker 00:
There was testimony that there was no kicking before, that there was, in prior jump-ins, that you weren't allowed to be held up, that once you hit the ground and couldn't get back up, that ended the jump-in.

[00:57:35] Speaker 00:
All of those things led to witness his characterizations that this was unusual, that this wasn't the norm.

[00:57:42] Speaker 00:
So to the extent that you're looking at what was the standard jump in, the standard one, the evidence was that Appellant knew that that was dangerous because he thought it might kill the female member of the group, but that this was so much more than just the standard jump in.

[00:58:00] Speaker 04:
So would you speak to the issues surrounding the use of the expert?

[00:58:05] Speaker 04:
Why was there an expert needed here?

[00:58:07] Speaker 04:
What was the point of the expert?

[00:58:08] Speaker 00:
I think that part of the evidence in what came in in the theory in this case was that you have this organization, and you have a client who is the head of this.

[00:58:20] Speaker 00:
And there's some significance of that as the testimony.

[00:58:22] Speaker 04:
Did you need an expert to show that Williams was the head of this group?

[00:58:24] Speaker 04:
Didn't the fact witnesses do that just fine?

[00:58:30] Speaker 00:
Perhaps we could have reached the same outcome, but that's not the standard here.

[00:58:33] Speaker 00:
The expert was relevant to put that in context, to explain kind of the significance when members were refusing to cover up their tattoos and appellant was sending messages, threatening them if they didn't cover the tattoos, why those tattoos were relevant, why it is in this organization

[00:58:53] Speaker 00:
It's not appropriate to cover your tattoos.

[00:58:56] Speaker 04:
The reasons that appellant as the expert ever make any connection between the Gangster Disciples International and the one in Ramstein.

[00:59:06] Speaker 00:
I think the expert was asked questions about the specific tattoos on the Ramstein members, the jewelry, the pictures, the stances and clothing colors that they wore and said that those were all consistent with the broader gangster disciple.

[00:59:20] Speaker 00:
But you have here an evidence, separate from the expert also, a connection.

[00:59:25] Speaker 00:
which is that you have specific evidence that Latisha Ellis, for her jump in, learned about, and then Appellant wanted the other members of the group to learn about this broader gangsters, disciples group.

[00:59:38] Speaker 00:
So I think that that was connected here, both with the physical evidence of the tattoos, the jewelry, the stances, the jump in procedure, use of the term governor for Appellant, the head of the organization,

[00:59:51] Speaker 00:
the universal handshake, all of that was here and all of that factored in to the relevance of the expert's testimony here.

[01:00:01] Speaker 04:
But that was just to establish that Williams was the leader.

[01:00:07] Speaker 00:
And to put in context the testimony about the structure that the authority that Williams had to make it understandable and aid the jury in

[01:00:20] Speaker 00:
crediting testimony that Williams would have been the one to, first he denied that he was there.

[01:00:26] Speaker 00:
That was one of the defenses.

[01:00:28] Speaker 00:
That a jump in was led by the governor, these

[01:00:32] Speaker 00:
that his presence would be likely and that that defense was unlikely, and that he was the one who would have been directly involved in setting the tone for this.

[01:00:43] Speaker 00:
And I think that the expert was relevant to all of that, as well as understanding the witness's testimony and allowing the jury to understand and make those credibility determinations based on their testimony about the interactions between appellant and the subsequent

[01:01:02] Speaker 00:
tampering charges in this case.

[01:01:05] Speaker 00:
Unless there are any further questions.

[01:01:10] Speaker 00:
Any further questions, Judge Henderson?

[01:01:12] Speaker 04:
No.

[01:01:12] Speaker 00:
Okay.

[01:01:12] Speaker 00:
Thank you.

[01:01:12] Speaker 00:
We ask that the judgment of the district court be affirmed.

[01:01:14] Speaker 04:
Thank you, Ms.

[01:01:14] Speaker 04:
Banks.

[01:01:16] Speaker 04:
Mr. Cramer, we'll give you back three minutes.

[01:01:19] Speaker 00:
Thank you, Your Honor.

[01:01:20] Speaker 02:
I'll try to just touch on the points.

[01:01:22] Speaker 02:
With respect to the major and whether he lived with, and the government says at the time of the motion for judgment of acquittal, you gotta remember they incorrectly state in their brief that the court just reviews it as of that time.

[01:01:33] Speaker 02:
We renewed our motions.

[01:01:35] Speaker 02:
And the defendant's mother, Mr. Williams' mother, and his commanding officer testified, and they never asked either one of them did Mr. Williams still live with Octavia either.

[01:01:44] Speaker 02:
So they had ample opportunity, if Mr. Williams in fact lived with Octavia, to ask more witnesses about that.

[01:01:51] Speaker 02:
And this court's law is clear that the court can consider the evidence that came up after the motion for judgment of acquittal if it's renewed.

[01:02:00] Speaker 03:
I'm not the fact that there was an evidence he moved to another place, as Ms.

[01:02:04] Speaker 03:
Bates says.

[01:02:06] Speaker 03:
Sims actually said he moved two or three times.

[01:02:08] Speaker 03:
No, he moved around, but not to, there wasn't, and I realize the burden's on the government, I get that, but just, you would have thought if he had moved out, there would be a place to which he had moved.

[01:02:20] Speaker 02:
Sims actually said,

[01:02:22] Speaker 02:
Rico moved a couple of times, page 88 of the transcript of October 25th in the afternoon.

[01:02:29] Speaker 02:
He moved a couple of times.

[01:02:30] Speaker 02:
Every time he moved, he moved about three times.

[01:02:33] Speaker 02:
So he had initiations at each house he's been to and each apartment.

[01:02:36] Speaker 02:
So he actually said he did move several times.

[01:02:39] Speaker 02:
He didn't give timeframes and whether that was meant in June to, and the government never tried to narrow it down.

[01:02:47] Speaker 02:
With respect to the meeting, Simms did say they met twice a month.

[01:02:51] Speaker 02:
What he didn't say was that one of those June meetings, if there were two meetings, first of all, he didn't say there were two meetings in June.

[01:02:56] Speaker 02:
There was only reference to one.

[01:02:58] Speaker 02:
And he didn't say, and that was not at the House, he didn't say there was another meeting.

[01:03:02] Speaker 02:
Sarah Lewis said they met sporadically.

[01:03:05] Speaker 02:
So the notion that there was a second meeting

[01:03:07] Speaker 02:
And if there was a second meeting, it was at some house that he resided at, it's just essentially speculation, not any evidence at all.

[01:03:18] Speaker 02:
They talk about the dependent status in 2005, but there's no indication of

[01:03:23] Speaker 02:
what Octavia Williams had to do to obtain that status for Mr Williams or when she did that.

[01:03:28] Speaker 02:
She may have done that in February, knowing he was getting out.

[01:03:31] Speaker 02:
There's no indication of when she obtained that the state of how far into the six minutes was asked.

[01:03:38] Speaker 02:
There is absolutely no evidence of how far into the six minutes.

[01:03:42] Speaker 02:
Mr Sergeant Johnson fell down.

[01:03:44] Speaker 02:
In fact, if you take Simms' testimony, Simms' description of it was that there was two or three minutes of punching by the others.

[01:03:52] Speaker 02:
And then he and Mr. Williams came in for two or three minutes.

[01:03:56] Speaker 02:
And it wasn't until after that.

[01:03:58] Speaker 02:
So that would be five to six minutes, according to Mr. Simms.

[01:04:02] Speaker 04:
But your brief says by halfway through, at least, Johnson no longer was hyper and was responding only yeah versus hell yeah.

[01:04:11] Speaker 02:
I'm not sure that's my brief.

[01:04:12] Speaker 02:
Oh, I'm sorry.

[01:04:13] Speaker 02:
It's the government's brief.

[01:04:14] Speaker 02:
Excuse me.

[01:04:14] Speaker 02:
I'm sorry.

[01:04:15] Speaker 02:
Yeah.

[01:04:15] Speaker 04:
And I don't... So what... I'd respond to that.

[01:04:18] Speaker 02:
There was testimony... There was testimony that he was not as hyper as it went along.

[01:04:23] Speaker 04:
Yeah.

[01:04:24] Speaker 02:
There was no testimony about how far into the six minutes that extended.

[01:04:28] Speaker 04:
So that's just a misstatement by the government.

[01:04:30] Speaker 02:
No, there was testimony right, right, that that was halfway through right.

[01:04:35] Speaker 02:
There's no testimony as to number of minutes of when that occurred.

[01:04:38] Speaker 02:
And a matter of fact, the government left out another important point.

[01:04:41] Speaker 02:
At the end, when the people didn't hear that the six minutes was up, Saragu testified that it was Mr. Williams who yelled out, stop, stop, time is up, when the people didn't hear.

[01:04:52] Speaker 02:
The other

[01:04:54] Speaker 02:
And that Sarah, by the way, there were not eight people participating.

[01:04:59] Speaker 02:
Sims and Sarah Glue said there were nine people total there.

[01:05:03] Speaker 02:
One of those was Sergeant Johnson.

[01:05:05] Speaker 02:
Two of them didn't participate at all.

[01:05:07] Speaker 02:
Sarah Glue was injured and Ellis did not participate.

[01:05:10] Speaker 02:
So that gets you down to six.

[01:05:11] Speaker 02:
Sims testified that he and Mr. Williams stood to the side for the first two or three minutes, and then they came in alone.

[01:05:18] Speaker 02:
So there were six people participating, and Sims testified that it was four and two.

[01:05:25] Speaker 02:
Not anywhere near eight people punching him at one time was the testimony.

[01:05:30] Speaker 02:
And Sarah Glue confirmed that testimony about that he and Ellis did not participate, that Johnson was one of the nine people there.

[01:05:41] Speaker 02:
To make clear, what I argue with respect to the consent was, we understand the consent is not a defense, but it has to factor into whether he intended to kill Sergeant Johnson when Sergeant Johnson, every time he was asked, did he want it, was he ready, do you still want it, he said yes.

[01:05:59] Speaker 02:
That was the argument.

[01:06:00] Speaker 02:
And Judge Kavanaugh, you're right.

[01:06:02] Speaker 02:
It came to be consent as a shorthand term for that, but Judge Friedman clearly knew what we were talking about.

[01:06:08] Speaker 03:
The government clearly... He twice pulled out, in fact, with a distinction.

[01:06:13] Speaker 02:
And the government clearly knew, because what they said was, under no circumstance, you can't even consider it in his intent or anything else.

[01:06:21] Speaker 02:
And that's what, that was the crux of the defense, essentially distinguishing between murder and manslaughter.

[01:06:29] Speaker 02:
They were told, and then Judge Friedman said, refused to give any corrective instruction to that.

[01:06:34] Speaker 02:
By the way, both sides didn't want the state of mind instruction.

[01:06:37] Speaker 02:
Both sides said we don't want the state of mind instruction.

[01:06:40] Speaker 02:
And the notion that the- Why?

[01:06:43] Speaker 02:
It's not in the record.

[01:06:45] Speaker 02:
We, so I don't know- Why would a rational defense counsel not-

[01:06:49] Speaker 02:
Well, I'm not saying there was a rational defense counselor in this case, but because it was precluded from considering, so we were afraid the jury would say, well, we're precluded from this, so what evidence is there out there that we can determine this from?

[01:07:09] Speaker 02:
Government had told the jury they couldn't consider this whole thing about him repeatedly saying yes.

[01:07:14] Speaker 02:
And it would just emphasize that there was no such evidence to determine the state of mind because they had been precluded.

[01:07:20] Speaker 02:
And we were afraid that it would make it even worse.

[01:07:22] Speaker 02:
Now the government says the jury didn't send out any questions or seem confused.

[01:07:26] Speaker 02:
And I would say that's right there the nub of the problem.

[01:07:29] Speaker 02:
They were clearly told by the government they couldn't consider it.

[01:07:32] Speaker 02:
The district court instructions gave them no basis to consider it.

[01:07:35] Speaker 02:
So no wonder they weren't confused.

[01:07:36] Speaker 02:
They were told they couldn't consider

[01:07:39] Speaker 02:
Sergeant Johnson's repeated affirmations that he wanted it to continue.

[01:07:43] Speaker 02:
And even if however many minutes, 30 seconds, and there's no testimony at all in the record of how close to the end he didn't say it anymore or wasn't asked anymore.

[01:07:58] Speaker 02:
But however long that is, that's not a reason to preclude the fact

[01:08:03] Speaker 02:
from the jury's consideration of his prior saying, I'm fine, it would be a piece of evidence that the jury could take.

[01:08:10] Speaker 02:
Well, he stopped at some point saying, but that wouldn't justify them precluding consideration of the fact he said it before.

[01:08:19] Speaker 02:
It might go to recklessness.

[01:08:21] Speaker 02:
If it was 30 seconds before or three minutes before, but there's no testimony about that.

[01:08:27] Speaker 02:
But in any event, it wouldn't warrant a diffusion.

[01:08:29] Speaker 03:
The difference between the murder and manslaughter obviously has sentencing consequences, right?

[01:08:36] Speaker 03:
Significant ones.

[01:08:37] Speaker 02:
Well, the maximum sentence for manslaughter is eight years, and the maximum sentence for murder obviously was life, and he was given 22 years, which of course is 14 years above the

[01:08:53] Speaker 02:
maximum for manslaughter.

[01:08:54] Speaker 02:
So it had dramatic consequences.

[01:08:57] Speaker 02:
And it also affected the offense level for the obstruction charge as well.

[01:09:03] Speaker 02:
But our theory in the end is that the media convictions should be reversed for insufficiency of the evidence, and that the threat conviction, everything else goes with that.

[01:09:15] Speaker 02:
But even if, for some reason, the court doesn't think the threat conviction goes with it, which I think it does,

[01:09:21] Speaker 02:
The threat conviction still has to be reversed on all the prejudicial evidence that came in in the pregnancy, the expert, the consent instruction.

[01:09:31] Speaker 02:
Do you want to speak to the expert a little bit?

[01:09:35] Speaker 02:
Before trial, the government told the district court that this

[01:09:38] Speaker 02:
group engaged in drugs and robberies and crimes, and that they were all initiated in the United States, and they were members before they went overseas.

[01:09:47] Speaker 02:
And of course, none of that turned out to be true.

[01:09:50] Speaker 02:
And Judge Friedman even said, when he revisited the issue at trial, he said, wait a minute, everything you told me, none of that

[01:09:58] Speaker 02:
None of these people were inducted before they went overseas.

[01:10:01] Speaker 02:
There's not even any evidence Mr. Williams was inducted before he was in Germany.

[01:10:06] Speaker 02:
Sarah Goose said, I can't remember.

[01:10:08] Speaker 02:
And he said, this has been presented to me in a different way.

[01:10:11] Speaker 02:
So he cut it back.

[01:10:13] Speaker 02:
But for some reason,

[01:10:14] Speaker 02:
how it could be possibly relevant that the Gangster Disciples were founded in Chicago by three men in the 1950s, that they had a prison faction of the Black Gangster Disciples that was bossed, that split off in the 1960s, that in the 1970s this umbrella organization of the folk nation took over the Gangster Disciples.

[01:10:36] Speaker 02:
When every witness who testified for the government

[01:10:40] Speaker 02:
who was in the group said that our main activity was barbecues, going to amusement parks, and the dues were used for helping people with baby gifts and if they needed to go home for an emergency.

[01:10:52] Speaker 02:
Any of that could possibly be relevant, that there was a prison faction of the gang, and of course the extremely prejudicial evidence.

[01:11:02] Speaker 02:
Sims had testified that the group was not allowed to use a word beginning in B that was disrespectful to women.

[01:11:10] Speaker 02:
And yet when the expert testified, he twice, he said the meaning of the word mob, of the tattoo mob.

[01:11:19] Speaker 02:
And then the government highlighted that in both their closing argument and their rebuttal closing argument, emphasizing to the jury what the words mob meant, even though

[01:11:29] Speaker 02:
Sims had testified that the group wasn't even allowed to use that word.

[01:11:34] Speaker 02:
So this expert testimony, there was no need for it.

[01:11:38] Speaker 02:
It was totally irrelevant in most regards.

[01:11:42] Speaker 02:
Almost everything he said was totally irrelevant.

[01:11:45] Speaker 02:
And a lot of it had been testified to.

[01:11:49] Speaker 02:
Some of the parts had been testified to by the people in it, but the disclaimer of any

[01:11:54] Speaker 02:
uh... they all just playing any it affects him said he never even heard mister williams say the words thanks to the cycle the first time you heard those words when the army guys including cherries and sergeant johnson came back from iraq was the first time he ever heard those words in the spring of two thousand five so that this testimony was utterly irrelevant and extremely prejudicial talking about prison gangs what the words what the uh...

[01:12:21] Speaker 02:
letters MLB stood for, which had nothing to do with Mr. Williams' state of mind.

[01:12:29] Speaker 02:
And so we would, again, ask that it be reversed for insufficiency of the evidence, the Meech account, and the Tampere account be sent back.

[01:12:37] Speaker 02:
We go along with that, or if the court thinks that that doesn't go along with that, which I think it does for the reasons in our brief, that that account be reversed for prejudice, for the prejudice from the improperly admitted evidence.

[01:12:53] Speaker 01:
Mr. Greger, you were going to give me a case about post hoc depravity.

[01:12:56] Speaker 01:
Is it in your brief?

[01:12:57] Speaker 02:
It is and I didn't, could I send a quarter letter?

[01:13:00] Speaker 02:
I'm sorry, I was looking at other things and I apologize, I forgot that.

[01:13:09] Speaker 02:
If it's in a brief, should I send a quarter letter?

[01:13:13] Speaker 02:
I think there is discussion in the brief of a case where someone was left by the side of the road after being beaten, but it was contemporaneous with the events.

[01:13:25] Speaker 02:
There's also a case about some prison guards who beat somebody and then failed to get the person medical attention, but that went on the basis that these guards had custody of the person so that part of their activities

[01:13:40] Speaker 02:
in their depravity was that they had custody and so it was distinguishable on that ground.

[01:13:45] Speaker 02:
And I apologize for not having it.

[01:13:47] Speaker 01:
I think Mr. Williams, didn't he tell the subordinate to stay with Johnson?

[01:13:52] Speaker 01:
Didn't he have custody?

[01:13:53] Speaker 02:
Well, he told them to bring him back to the room, and he told Charis to stay with him.

[01:14:03] Speaker 02:
He didn't tell him anything else.

[01:14:04] Speaker 02:
Charis could have taken him to the hospital.

[01:14:06] Speaker 02:
He said I could have taken him to the hospital.

[01:14:08] Speaker 02:
He decided on his own not to because he said he was scared of repercussions.

[01:14:14] Speaker 02:
But Mr. Williams said nothing to Charis about not taking him to the hospital until a guy named Norman called Mr. Williams at Charis's behest.

[01:14:28] Speaker 02:
And as Mr. Williams said, yes, and that was about depending on whose view of the testimony somewhere between three to five hours, probably after the events.

[01:14:43] Speaker 02:
Thank you very much.

[01:14:44] Speaker 04:
Okay, thank you very much.

[01:14:45] Speaker 04:
The case is submitted.