[00:00:01] Speaker 02:
Case number 11-3034 at L. United States of America versus William and Cordova, also known as Mario, also known as Centella.

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Appellant.

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Issue.

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Access to Jinx Act materials.

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Mr. Becker for the appellant.

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Ms.

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Bates for the appellee.

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Recusal.

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Mr. Martin for the appellant.

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Ms.

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Bates for the appellee.

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Discussion of jury instructions.

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Mr. Becker for the appellant.

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Ms.

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Bates for the appellee.

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And testimony in Spanish.

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Ms.

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Davis for the appellant.

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Miss Bates for the Apple League.

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Judge Tatel, members of the panel, good morning.

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Good morning.

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I'm Robert Becker and I represent Melvin Sordo.

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There are two important points to keep in mind at the outset.

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This case is about a trial protective order, not a pretrial protective order.

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And appellants are not asking for a right to keep copies of Cenk's material in their cells.

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They are asking for a right to have meaningful access so they can assist their lawyers.

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Particularly in criminal cases, protective orders pose problems for lawyers working on to develop the case and investigate and significant burdens on the Fifth and Sixth Amendments.

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For that reason, there are strict rules about procedure for issuing protective orders and putting them in place.

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Judge must make a record, must provide a clear statement of what the order covers.

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They must consider, balance the defendant's rights against the perceived concern, in this case, the government's witness security concern.

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And they must determine that that order will, in fact, prevent the harm that the government is concerned about.

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Is our review abusive discretion on this issue?

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I believe this is constitutional trial error, Judge Wilkins, because it clearly directly implicates Fifth and Sixth Amendment rights.

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What case do you have that

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this type of an order rises to the level of something that gets the chaplain v. California standing?

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The issue has mostly developed in civil cases, Seattle Times versus Reinhart, except along the Liggett group, where the court has applied constitutional analysis to the issuance of protective orders, both in terms of the procedure and the requirements for good cause.

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But that's, you know, protective order that prevents the public from having access to something, you know, court materials.

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That's not this case.

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But the government cites alderman.

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But in that case, the question was whether the defendant could be prohibited from disclosing to third parties information that he was entitled to see.

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And this directly implicates the defendant's trial rights.

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It doesn't deal with dissemination to third parties.

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The interest is much stronger in that situation, where the defendant has a right to actively participate with his lawyer in mounting his defense.

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But in federal courts across the country,

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And in the DC Superior Court, which has the same Jinx Act and Jinx rules as the federal courts do, defense lawyers are often given Jinx materials right before the witness is testifying and they're reviewing them with their client kind of at defense counsel table or with just a few minutes.

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And so that's not seen as being a constitutional problem.

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It may, if the lawyer doesn't have enough time to review it for that lawyer, he or she may request more time and depending upon how that's dealt with, that

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may be error of some sort, but how is it if the protective order here, the nature of it was simply that you can review it with, the defendants can review it, but they have to have counsel or investigator present.

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How is that really meaningfully different than what happens in 90% of the cases anyway?

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I guess my first answer is that this is not a Jencks Act case.

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We are not claiming that the government didn't live up to its obligations under the Jencks Act.

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We are claiming that because of the volume, and in this case it was 1,000 pages at a time or more that the defense counsel got on Thursday for the next week's witnesses, that the defendant needed to have time to review that information.

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In this situation, defense counsel, unlike prosecutors who have investigators internally, they have the police, they have paralegals, most defense counsel, particularly in indigent cases, have one investigator and themselves.

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And for them to have to sit at the jail for the entire time it takes for their client to review that information in that volume,

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is an impossible burden.

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And the trial can't be put off for long periods of time each week when that happens.

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So the court, I think, the judge said that they could have additional time if they needed it.

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And no one ever asked.

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Judge Tatel, I think everybody in this case was living under the burdens of this case, which was there was a large amount of evidence that was unloaded on counsel each week.

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Right.

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But still, the judge gave counsel an opportunity to ask for more time.

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But counsel, again, before trial, asked for the information further in advance so that they could investigate and adequately prepare after it came to light that Mr. Sordo had copies of the thanks material.

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one of the co-defendants asked that their clients be given the material so that they could facilitate their discussion.

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I understand all that.

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I'm just asking you if the judge, you said the problem was this vast amount of material and they didn't have enough time, but since the judge gave counsel an opportunity to seek more time and they didn't ask for it,

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That's true, Judge Tatel, but at the same time, they were saying, we're having trouble with communicating with our clients about these witnesses, and the judge again... Where did they say that?

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Excuse me?

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Where did they say that?

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In the hearing after it came to light that Mr. Sordo had the transcripts.

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Yeah, the quotes that I had were that it would be more productive.

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move along faster, essentially convenience.

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They weren't making, they didn't sound in terms of impairment of the relationship or even ability to communicate with the, between the client and the attorney

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in a functional manner.

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It would be faster, more convenient.

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So how do we factor that in?

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I think there was a subsequent discussion where the judge prohibited, first prohibited defendants from taking anything out of the courtroom or bringing anything in.

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And then Cordova's lawyer said that's impossible because they need to be able to write down their thoughts.

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and let us know what's going on, and the judge then relented slightly and allowed them to bring notes from the court, from the jail, but then refused to let them take anything away.

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That was a different issue, that y'all entered into an agreement on that issue, but I'm still getting to on this objection or concern you're raising about the impairment of his Fifth and Sixth Amendment rights.

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The objections that were made did not sound

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in those terms at all.

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It was very much sounded in terms of convenience.

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downplay the importance of that during a trial with a lot of pressures on.

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But there's nothing.

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Your client didn't object at all.

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Only one person objected and did it in terms of it'll be more productive, more convenient, move along faster, which doesn't sound like the impairment that you were talking about.

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So what do we do with that?

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Well, I think he did not cite the Fifth and Sixth Amendment

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in that argument, but the argument really sounded in the... Well, it did.

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That's what I'm raising to you, is actually, I'm not saying you have to use magic words and say Fifth and Sixth Amendment, but your argument here was that they weren't able to communicate effectively with their clients, but that wasn't what was said.

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If that had been said, you're right, that might have sounded enough in constitutional terms, but unless you know where it is, when I read the transcript, I did not see

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an inability to communicate effectively with clients or for them to participate in their defense.

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Well, I think that those are two sides of the same coin in the sense that, as I think I said in the brief, the defendants knew these cooperators.

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The lawyers did not.

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If the defendants were to read the Jenks material, they would be able to say, he's lying, or this happened this way.

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But they never got the opportunity because of the restrictions that were imposed

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and restrictions that could have been alleviated greatly as they have in other RICO cases in this circuit.

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But again, no one told the district court you weren't having the opportunity.

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It was a question of would be faster, more productive.

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And then I haven't seen in your briefs here any argument about actual prejudice.

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You haven't identified something that would have been uncovered had you had more time that you just didn't have time to find at trial.

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Am I right?

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I would suggest to you, Judge Millett, that proving prejudice in this situation would be impossible because the defendants didn't have the material.

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We don't know what they would have told their lawyers back then if they had been able to read it.

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Would you have plenty of time since then to say, did you find anything?

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Was there any real consequence to this fact that we had

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I don't know, four or five days to do this process.

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I don't believe that the defendants have ever seen the Jenks material since the trial.

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And the protective order remained in place until sometime in 2013, I believe, or 2012.

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So they never had the opportunity.

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Anything else?

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No.

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OK.

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We'll hear from the government on this issue.

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Thank you.

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Mr. Bates?

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May it please the court?

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Good morning.

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Lauren Bates on behalf of the United States.

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Here, the protective order that was in place in this trial should be reviewed for plain error here, given the fact that appellants did not object to the protective order at the time it was entered.

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In fact, I think there's an argument that... But how do we know that, since we don't even know what day the protective order was entered?

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You say in your brief, you don't know what day it was entered, and there's nothing in the record about when it was entered.

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I can't find it.

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I can't find it on the docket.

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I can't find it in the appendix.

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No, I agree that the record, as we have it now, does not provide clarity on that point.

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But the record, I think, is also clear that there is no objection that appellants can point to, that the procedures in place in this trial were that, to the extent that there was an off-the-record conversation or something that occurred, appellants were fully aware of, as is made clear.

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But it's a bit rich to ask us to hold that defendants

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um, are to be, you know, put to a higher burden, uh, an almost, you know, very difficult to surmount burden because they didn't put their objection on record when at the same time neither the government nor the district court bothered to put the order on record.

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Does that seem at all fair to you?

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That is what Rule 52 and the Plain Error Standard contemplates, which is that it is a burden that is placed on the defendant or defense counsel to preserve an objection.

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Well, when there's a ruling on the record, but if there's a secret ruling that no one actually knows about, I'm not sure.

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Did you have a Plain Error case that was applied to a secret ruling that wasn't in the record and the government didn't bother to put in the record either?

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I don't have a case that specifically... Right, well that's what I'm asking you then, is should plain error be applied in a setting like this?

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That seems very unfair.

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Yes, I believe that the plain error standard still could be applied, and to the extent that there is some... Does it make a difference to your case if we don't apply it?

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Here with the outcome, no, to the extent that the court were to review this as a preserved issue for abuse of discretion.

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Again, I think that there is no abuse of discretion here, given the terms of this protective order, which was a limited deprivation of any ability to review this material.

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It was solely an order that appellants could not review this material on their own.

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They were entitled to full access and use of the material with their counsel or with the investigator.

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There was no material, unlike the

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constitutional cases that appellants have cited, that they were prohibited from seeing.

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This wasn't an instance where there was a courtroom closure or some other infringement on a constitutional right.

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And the record, again, as the court has recognized, the trial judge invited appellants and their counsel to inform him if there was a time where they felt that they were not able to effectively make use of the Jenks disclosures.

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made clear he was not going to let them be sandbagged and that they may get their day or two of break if they needed it.

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There is no instance in which appellants requested additional time or informed the court that they were not able to use of the Jenks material.

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Do you agree that in

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that to the extent that there's a constitutional objection before us, not a jinxed statutory objection, that the district court was obliged to undertake a balancing of the interests and needs of the defendants, and obviously that security needs, I mean, is a balancing required by the Constitution?

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No.

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No balancing is required?

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I don't agree that the district court was required to undertake a specific balancing, especially here where

[00:15:21] Speaker 01:
I guess I want to clarify, before you go on just to clarify, I asked does a court have to undertake a balancing and you said they were not required to take a specific balancing.

[00:15:34] Speaker 00:
Yes, I think that to the extent that a court is, that there would be a balancing of these rights, but appellants are asking this court to require that the district court

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put his thought process in a certain manner on the record and expressed that the court has reviewed or contemplated less restrictive means.

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And I don't believe that even if there was a constitutional right that there is, case law that appellants have provided to this court that would require

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in this context, those very specific findings to be made.

[00:16:08] Speaker 01:
Well, I guess I'm trying to figure out how one applies, I assume if you're agreeing that it's abuse of discretion, if your second position, your first one's plain error, is abuse of discretion, how one applies that when there's absolutely no record of the exercise of discretion before us?

[00:16:23] Speaker 00:
I think that there is a record that this court can review because the government repeatedly provided the court with its position and the information about the government's witness security concerns.

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The trial court recognized those and in fact referenced them subsequent to the time where the protection board was put in place.

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I guess when I was looking at the record it was

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pretty hard to discern because the district court's answer was for the reasons previously articulated, which of course we don't have.

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And to the extent those reasons were witness identity, that doesn't apply at this stage of the proceeding because the witness identity is out there and there was no gag order on these folks when they got back to the prison.

[00:17:09] Speaker 01:
And if it was this lady of silver letter, it seems odd that on this issue, the government talks about it as a threat to silence witnesses, but when it comes to recusal, it was a harmless request for a witch doctor.

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It can't be both.

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So what exactly was the security concern?

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That the district court articulated.

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Where did the district court articulate that?

[00:17:31] Speaker 00:
First, the district court, in addition to saying for the reasons previously articulated at that same hearing, referenced that he didn't think that it was appropriate to change or remove the protective order under the circumstances.

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I think that's fairly read as the circumstances that the government had just set forth on the record, which were the witness security concerns.

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But subsequently.

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And what do you mean by witness security?

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I'm really struggling with it.

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The witness security concerns when the witness's identification, excuse me, identity is already

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out there.

[00:18:01] Speaker 00:
That's true, but as the government at that hearing said, for the information to be back at the DC jail floating around free ring from inmate to inmate is a disaster.

[00:18:11] Speaker 01:
And I know you said it's a disaster, but where what?

[00:18:13] Speaker 01:
So why?

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I mean, there's just there's never any explanation as to why that was a disaster.

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Why this information

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witness identity is already out there.

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What they're going to testify to is going to be a matter of public argument.

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Who said what?

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There are no pseudonyms used here as far as I know.

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So why would it be a disaster?

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So this is first being the Jenks disclosures were given a week in advance in this case.

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And although witness names may have been out there,

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The Jenks information would include much more than just the name.

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It would be physical evidence, hard proof that could be circulated at the DC jail that would demonstrate that certain witnesses were cooperating with the government, were testifying against fellow gang members.

[00:19:00] Speaker 01:
Wouldn't that be evidence from...

[00:19:02] Speaker 01:
So-and-so's testifying for the government?

[00:19:04] Speaker 01:
Wouldn't that already be a matter of public record?

[00:19:07] Speaker 01:
You may very well have had these concerns.

[00:19:08] Speaker 01:
I just didn't see them spelled out in the record, and so it's hard to figure out how to apply abuse of discretion.

[00:19:15] Speaker 01:
review.

[00:19:16] Speaker 01:
We know who's going to say what, and the next week it's going to be a matter of public record who said what.

[00:19:23] Speaker 00:
Well, it will be a matter of public record, but I think that this Court can recognize that there is a difference as the government referenced it with the material itself floating around the DC Jail.

[00:19:32] Speaker 00:
And the trial judge, in fact, the subsequent World 10 proceedings, or I'm sorry, in connection with the

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violation of the terms of the protective order that came up in November explicitly made clear that he was concerned about efforts to duplicate the Janx material and distribute it within the jail.

[00:19:55] Speaker 00:
fairly read to be because having the hard group as we all know here say may be viewed differently than you know the hard evidence having that hard proof floating around the jail was a concern that the government had and one that the trial court itself expressly I don't know what you mean why I mean you guys are much more expert in this than I am but what hard proof was in the jeng sack material and what danger was it going to create

[00:20:22] Speaker 00:
So I think there's a difference between knowing that at the beginning of a trial, the government announces that the following individuals you may hear from or about, the following individuals, and provides a list of names, with having Cenk's material that for many of these individuals included extensive grand jury transcripts that detailed the extent to which they were cooperating with the government

[00:20:48] Speaker 00:
testifying about, you know, what fellow MS-13 members had done, which is, as the record demonstrates, was in violation of one of the core principles of the gang in this case.

[00:21:01] Speaker 00:
The Jenks material also, in many cases, provides much more than just a name, provides background information about the witness, about, you know, their upbringing, their family, where they live.

[00:21:14] Speaker 00:
That that material is

[00:21:17] Speaker 00:
provides witness security concerns that go beyond simply knowing that at the beginning of a trial, the government has stated that you may hear from or about a list of individuals.

[00:21:28] Speaker 01:
So what do I do about the fact that the explanation you give is nowhere in the record?

[00:21:33] Speaker 01:
I think that... It's not in the record.

[00:21:36] Speaker 01:
There's allusions to maybe at some point something was said off the record, but none of that is in the record that I saw.

[00:21:43] Speaker 00:
Well, what is in the record is that the government had concerns about the material floating around in the DC jail.

[00:21:51] Speaker 00:
The record demonstrates what the volume of the Jenks material would be and the extensive transcripts that were provided, and that the court was clearly itself concerned about

[00:22:04] Speaker 00:
efforts to duplicate and distribute the Janx material in the jail, and that that was one of the reasons for the protective order in this case.

[00:22:13] Speaker 00:
And that to the extent the court is looking for the justifications, I think the balancing that would have to be undertaking is also a recognition of what the infringement or intrusion was here.

[00:22:25] Speaker 00:
And I think there was very little, if any, infringement that this court would have to balance the

[00:22:33] Speaker 00:
government and the courts adopted security concerns against, which was the defendants themselves had complete access to this material, even though they were not permitted to have it alone at

[00:22:46] Speaker 00:
the DC jail, they received the material a week in advance, which is significantly more than what is contemplated and required by the Jenks Act.

[00:22:58] Speaker 00:
And so there is no indication here that they have identified ever at trial or on appeal, now that they've had two years with the protective order listed, a single use that they would have made of this material if they had had unfettered access throughout the course of the trial.

[00:23:16] Speaker 00:
Okay.

[00:23:17] Speaker 06:
Great.

[00:23:18] Speaker 06:
Thank you.

[00:23:20] Speaker 06:
Mr. Becker, I think you used up your time, but you could take one minute.

[00:23:24] Speaker 06:
Thank you, Judge Tatel.

[00:23:26] Speaker 05:
Just a couple of points.

[00:23:27] Speaker 05:
Reinhart and Cipollone neither would have prevented the parties from seeing the discovery.

[00:23:34] Speaker 05:
Reinhart established the procedure for issuing an order.

[00:23:37] Speaker 05:
Cipollone says that the proponent of the order has an ongoing requirement to demonstrate good cause as to every document.

[00:23:47] Speaker 05:
And the good cause standard is actually a balancing test.

[00:23:51] Speaker 05:
So even if you go under abusive discretion, that still requires a balancing of the party's interests.

[00:24:00] Speaker 05:
We are not arguing for unfettered access.

[00:24:02] Speaker 05:
We are arguing that the judge should have put this stuff in the library under the supervision of the jail librarian so that these people could see it

[00:24:11] Speaker 05:
without having the ability.

[00:24:13] Speaker 08:
But I don't see that request ever having been made in the record.

[00:24:16] Speaker 08:
You make it in your briefs, but there's nowhere in the record where that was requested.

[00:24:19] Speaker 05:
That is correct, Your Honor.

[00:24:21] Speaker 05:
But again, that's part of the balancing test that Reinhart, and by extension through Waller v. Georgia, applies to the Sixth Amendment, that the judge has to balance the interest.

[00:24:34] Speaker 05:
He has to find the least restrictive alternative

[00:24:37] Speaker 05:
which would have been in this case, it's a requirement on the judge in issuing the protective order.

[00:24:46] Speaker 06:
Okay.

[00:24:46] Speaker 05:
There are no further questions.

[00:24:47] Speaker 05:
Thank you.

[00:24:48] Speaker 06:
Okay, so next issue, recusal, right, Mr. Martin?

[00:24:57] Speaker 04:
Good morning.

[00:24:59] Speaker 04:
Anthony Martin on behalf of Jose Gutierrez.

[00:25:02] Speaker 04:
Just a little background.

[00:25:03] Speaker 04:
Jose Gutierrez was a little over 18 at the time of Edwin Ventura's murder.

[00:25:09] Speaker 04:
And he received a sentence of life plus 125 years.

[00:25:13] Speaker 04:
And I'm sure you're well aware of that.

[00:25:16] Speaker 04:
Moving to the trial itself, there came a time when it became known to everyone that there was what was perceived as a threat letter by the United States Marshals Service.

[00:25:25] Speaker 04:
They quoted the attention of the judge.

[00:25:27] Speaker 04:
And it was eventually brought to the attention of all counsel as well.

[00:25:31] Speaker 04:
Now, it's not clear whether or not this was a request from some witch doctor or a request for a hit.

[00:25:37] Speaker 04:
But I think what we need to do is we need to look at what 455A requires.

[00:25:42] Speaker 04:
And 455A has as a guidepost the language that how would a reasonably informed observer

[00:25:52] Speaker 04:
view the proceedings that are being held by a judge who might have been threatened.

[00:25:57] Speaker 04:
And I submit to the court that there are two reasonably informed observers sitting here right now, and that's the two prosecutors.

[00:26:04] Speaker 04:
They knew the case better than anyone else, and both of them thought, and I submit that they're reasonable people.

[00:26:10] Speaker 04:
I know one of them through other social leaders.

[00:26:12] Speaker 06:
I think you need to make your argument in terms of abuse of discretion.

[00:26:16] Speaker 06:
You agree that's the standard here?

[00:26:19] Speaker 04:
No, I don't necessarily agree that that's the standard.

[00:26:22] Speaker 04:
I know that there are quite a few cases that think that.

[00:26:24] Speaker 04:
But I'm inclined to think that it's a Sixth Amendment violation, Your Honor, and therefore there should be a de novo review, because there's a mixture here of fact and law.

[00:26:32] Speaker 06:
Does any case say that?

[00:26:33] Speaker 06:
Do you have any case that says that?

[00:26:35] Speaker 04:
No, I don't.

[00:26:36] Speaker 04:
I don't have a specific case that calls for that.

[00:26:41] Speaker 04:
But I think because it's a constitutional question,

[00:26:44] Speaker 04:
That's the standard.

[00:26:44] Speaker 04:
That's the appropriate standard.

[00:26:45] Speaker 04:
At the very least.

[00:26:46] Speaker 01:
Did your brief phrase that as a constitutional issue?

[00:26:50] Speaker 04:
I don't specifically remember that I raised it by reference to a case.

[00:26:58] Speaker 04:
And so I don't want to... Did you mention the Constitution in your recusal argument?

[00:27:01] Speaker 04:
I don't want to misspeak.

[00:27:03] Speaker 06:
Well, why don't we assume for purposes of argument that it's abuse of discretion?

[00:27:07] Speaker 04:
Well, Your Honor, I think if we look at the language of 455A, it says that any justice or judge or magistrate judge in the United States shall disqualify his or herself in a proceeding where his impartiality might reasonably be questioned.

[00:27:26] Speaker 04:
where a judge is the subject of a potential threat letter, and his name was at the top of the list of those people who needed to be silenced.

[00:27:34] Speaker 04:
I think if you look at the Nettles case, for example, that's a good example of what the judge should have done.

[00:27:40] Speaker 06:
Well, Nettles is a very different case.

[00:27:41] Speaker 06:
I mean, that was a threat to the very courthouse that a judge was sitting in.

[00:27:45] Speaker 06:
But the interesting thing- Here you have a situation where the judge didn't view it as a threat, the marshals didn't view it as a threat, the recipient of the letter didn't even view it as a threat.

[00:27:56] Speaker 06:
Uh, sure, you could argue it the other way, but if it's abuse of discretion standard, how could you, how do you make the argument that this was an abuse of discretion standard?

[00:28:04] Speaker 04:
Well, let's look at Nettles, because with all due respect, Ron, I'm not sure I agree with you.

[00:28:09] Speaker 04:
In the Nettles case, the judge, she did not.

[00:28:13] Speaker 06:
That's your job.

[00:28:16] Speaker 04:
She did not think that the threat that was made to blow up the building was one that should have resulted in her recusing herself.

[00:28:24] Speaker 04:
But the interesting thing about that was the Court of Appeals thought

[00:28:29] Speaker 04:
that not only should she have recused herself, but all the judges in the courthouse should have done so.

[00:28:34] Speaker 04:
So I think it goes beyond what the judge is or herself thinks.

[00:28:38] Speaker 04:
It goes to what the reasonably informed observer would think.

[00:28:41] Speaker 04:
And again, the prosecutors thought that it was a threat letter.

[00:28:45] Speaker 04:
And throughout the trial, they made reference to this particular letter being a threat.

[00:28:50] Speaker 04:
And so I would submit to the court that it's not so much what the judge thought.

[00:28:54] Speaker 04:
It's what the reasonably informed observer would have thought.

[00:28:57] Speaker 01:
Isn't there a problem if we hold that

[00:29:00] Speaker 01:
any threat letter to a judge necessitates as a matter of law or recusal?

[00:29:05] Speaker 01:
I mean, everybody will be able to pick, every defendant will be able to pick and choose their judge then by issuing threat letters or having threat letters issued.

[00:29:13] Speaker 04:
But no, I'm not asking for that, Your Honor.

[00:29:15] Speaker 04:
I think these cases, what these cases reveal is that the circumstance is fact-specific.

[00:29:20] Speaker 04:
And again, going to the reasonably informed observer guidepost and knowing again that we have people who knew much about this case who thought it was a threat letter, that's how you determine this particular case.

[00:29:32] Speaker 01:
I'm not asking that you... And what about this threat letter makes it different from general?

[00:29:39] Speaker 01:
All the different types of threat letters that judges see?

[00:29:41] Speaker 04:
well i think what makes this case different is the nature of the uh... the crimes that were committed by these men they were members of

[00:29:52] Speaker 04:
And I think that there would be consensus here, it would be unanimous, that Mara Salvatrucha is one of the most violent gangs ever to come before us or anywhere else.

[00:30:04] Speaker 04:
In fact, in the month of August alone in El Salvador, they had 904 murders that were gang related.

[00:30:10] Speaker 04:
That's in one month.

[00:30:12] Speaker 04:
So when you get

[00:30:13] Speaker 04:
a letter that specifically lists people that need to be silenced.

[00:30:16] Speaker 04:
And you have the government initially seeking the death penalty in this case.

[00:30:20] Speaker 04:
This case started out with the death penalty protocol.

[00:30:23] Speaker 04:
I think that the facts suggest that the judge did take this matter quite seriously.

[00:30:28] Speaker 04:
And I think his ruling with respect to the protective order lends credence to that.

[00:30:32] Speaker 01:
Yeah, but you all didn't, the motion to recuse was not renewed at any point in the trial or post trial.

[00:30:40] Speaker 01:
And so I'm not, can we even consider that?

[00:30:42] Speaker 04:
Yes, I should have renewed it.

[00:30:45] Speaker 04:
I didn't.

[00:30:47] Speaker 04:
Looking back on it, though, I don't think that that makes much of a difference.

[00:30:50] Speaker 04:
I think that the standard is, again, 455A and whether or not this was a case where a reasonably informed observer would say,

[00:31:01] Speaker 04:
that notwithstanding whether or not the judge thought that he was threatened, he should have recused himself.

[00:31:07] Speaker 04:
So even if I didn't renew it, Your Honor, which maybe there will be a different forum at a different time that will address that issue.

[00:31:13] Speaker 04:
But I don't think that that should be one that decides this case one way or the other.

[00:31:20] Speaker 06:
OK, Ms.

[00:31:21] Speaker 06:
Bates.

[00:31:34] Speaker 00:
The trial judge here did not abuse his discretion in denying the motion to recuse.

[00:31:39] Speaker 00:
The record makes clear that the judge thoughtfully considered this issue, had received information and input from the US Marshals Service about their investigation into this letter, and that he concluded that he did not view the letter as a threat.

[00:31:54] Speaker 00:
I think that is not just evidenced by his statements at the time that he denied the motion to recuse, but also by the fact that he declined any additional security for himself, his family, or the trial itself in this case.

[00:32:07] Speaker 01:
This is not a subjective belief test, so how does that factor in?

[00:32:10] Speaker 01:
It's an objective test, right?

[00:32:12] Speaker 00:
It is an objective test, but it's objective as to what an informed observer would believe.

[00:32:19] Speaker 00:
And I think that part of what goes to whether an informed observer would believe that the judge's partiality was at play here is whether the judge himself expresses that he

[00:32:36] Speaker 01:
If the judge, particularly cowardly, easily frightened and had reacted with great fear and had asked for protection for himself and his family, exact same letter, everything's the same except the judge's reaction is different.

[00:32:51] Speaker 01:
Different outcome?

[00:32:52] Speaker 00:
I don't know that it would be a different outcome, but I think that that is a fact that would not as strongly support a judge's decision not to recuse himself, because if a judge evidenced that he or she was so concerned about this, that that would give, again, an observer who's informed of that fact perhaps one additional

[00:33:12] Speaker 00:
reason that they may have a question there about whether the judge could remain partial.

[00:33:18] Speaker 00:
But that's not what happened here.

[00:33:20] Speaker 00:
And in fact, I think the judge's view of this is confirmed by when the government sought to introduce the letter at trial.

[00:33:28] Speaker 00:
Again, he denied that request and made clear that he didn't think that this letter really had much probative weight to it because it was not clear on its face.

[00:33:36] Speaker 00:
It was stale.

[00:33:38] Speaker 00:
Nothing ever came of this.

[00:33:40] Speaker 08:
What's your response to, you know, appellant's beginning remarks, which is that, you know, if the standard is what a reasonable informed observer would think, well, prosecutors are reasonable and they're certainly informed.

[00:33:55] Speaker 08:
Observers, they thought it was a threat.

[00:33:58] Speaker 08:
So why wouldn't a reasonable informed observer, why should we say then a reasonable informed observer would consider this letter to be a threat?

[00:34:10] Speaker 08:
And if so, does that change the analysis?

[00:34:14] Speaker 00:
I think first recognizing that the standard here is to review for abuse of discretion.

[00:34:19] Speaker 00:
I don't think that that fact that the prosecutors even if viewed as a reasonable informed observer would

[00:34:27] Speaker 00:
kind of overweighed all of the considerations that the court undertook in denying the motion to recuse.

[00:34:33] Speaker 00:
But the prosecutors, I don't know that you would say that in this context where they are an advocate before the court, in the case itself, that they are the reasonable, objective, informed observer that you would look to.

[00:34:49] Speaker 06:
Would you do a special weight to the marshal's view?

[00:34:52] Speaker 06:
Excuse me, would you give special weight to the marshals?

[00:34:55] Speaker 00:
Sorry, I don't know that we need to

[00:34:59] Speaker 00:
give special weight.

[00:35:01] Speaker 00:
But I think the marshals obviously have an obligation to ensure that they are the ones tasked with protecting the judiciary and the courthouse.

[00:35:11] Speaker 00:
And I think that it is of significance then that the marshals, based on their investigation with their underlying obligations known, did not view this as a threat.

[00:35:24] Speaker 00:
Although the court had said to the marshals that it would allow them to, you know,

[00:35:28] Speaker 00:
security outside the courtroom.

[00:35:30] Speaker 00:
There's no.

[00:35:32] Speaker 00:
suggestion that the marshals believed that there was some great additional security that was required here.

[00:35:38] Speaker 00:
They allowed the judge to decline security for himself.

[00:35:41] Speaker 00:
The trial was conducted in a typical courtroom, not a secure courtroom.

[00:35:47] Speaker 00:
So I think that all of those factors, again, go to show that it was not an abuse of discretion for the judge to deny the motion to recuse here, given the nature of the letter and the investigation that unfolded.

[00:35:59] Speaker 08:
So suppose the letter, and I know these aren't your facts, suppose the letter had said, you know, so-and-so, I want you to kill the judge in this case, because that will make things better for me.

[00:36:15] Speaker 08:
That's what the letter said.

[00:36:18] Speaker 08:
The judge gets it, says, you know, I'm not gonna, you know, I'm gonna stay on this case.

[00:36:29] Speaker 08:
and reviewing that.

[00:36:35] Speaker 08:
And it's a clear threat to the judge.

[00:36:40] Speaker 08:
How do we how do we evaluate whether that's an abuse of discretion?

[00:36:45] Speaker 08:
What do we do?

[00:36:47] Speaker 00:
There's case law not from this jurisdiction but others that where there are clear threats made to a judge and on appeal the judge's decision not to recuse himself under those circumstances is upheld.

[00:37:02] Speaker 00:
I think one of the concerns that underlies that is that you don't want to incentivize an ability for a litigant to forum shop by

[00:37:11] Speaker 00:
forcing a court to recuse itself in the face of threats.

[00:37:16] Speaker 00:
I think that you would look again to the

[00:37:20] Speaker 00:
Here, you could look still to the fact that this was a letter that was written over a year earlier, that nothing had ever come from this, whether or not the court, in the face of even something that may be a clear threat, felt it necessary to request security or handle the proceedings differently in some manner that would evidence that they had

[00:37:44] Speaker 00:
taken the threat to heart in such a manner that it would influence their partiality.

[00:37:52] Speaker 00:
Look at the purposes underlying the threat.

[00:37:54] Speaker 00:
That's one of the factors that courts have pointed to, whether it's obviously a forum shopping attempt.

[00:38:00] Speaker 00:
So I don't think that even a clear threat, which we don't have here, would have necessitated recusal such that it would have been an abuse of discretion to deny the motion.

[00:38:09] Speaker 01:
Do you have a position on, since the motion wasn't renewed, it was only pre-trial, on whether we can even look at judges' references to the letter during the trial as part of this analysis?

[00:38:27] Speaker 01:
Is that something that should, if they thought something happened during trial, it was evidence of accusation of renewed it, or can they just say that's evidence that we were right the first time?

[00:38:39] Speaker 01:
I'm just not sure whether we sort of have to stop at the pretrial when the motion was filed and not look at any facts that happened after that or not.

[00:38:46] Speaker 00:
I don't think that this court needs to look beyond the record that was established at the time that the motion was just denied because the court made a record of the fact that he didn't view it as a threat, that he relied on the Marshall's investigation, declined additional security.

[00:39:08] Speaker 00:
The references that the court subsequently made at the time of denying the government's request to introduce the letter, I think, if anything, they go to demonstrate that those statements were credible, that the court was not making, that this court should not question whether the judge actually meant what he was saying at that time, because he

[00:39:32] Speaker 00:
carried through the trial a belief that the letter was not a clear threat and he didn't view it as having some great probative weight.

[00:39:43] Speaker 00:
I don't have a case that specifically looks to subsequent statements.

[00:39:49] Speaker 00:
And so to the extent that this court did not feel that that was appropriate, I don't think you need to look to those statements because the record at the time is clear.

[00:39:59] Speaker 00:
But if anything, those statements would provide additional comfort that the trial judge really here was not in a position where someone, a reasonable informed observer, would question that he could remain impartial.

[00:40:13] Speaker 06:
Anything else?

[00:40:15] Speaker 06:
No.

[00:40:15] Speaker 06:
OK.

[00:40:15] Speaker 06:
Did Mr. Martin have any more time?

[00:40:18] Speaker 06:
Oh, you can take a whole minute.

[00:40:22] Speaker 06:
If you like it.

[00:40:23] Speaker 04:
Quickly, Your Honor.

[00:40:25] Speaker 04:
I think Madame Counsel touched upon something, and that was the Holland case where it talked about jury shopping and manipulation.

[00:40:36] Speaker 04:
That certainly wasn't the case here.

[00:40:38] Speaker 04:
There were three factors that the Holland court laid out.

[00:40:40] Speaker 04:
One was capacity.

[00:40:41] Speaker 04:
Capacity.

[00:40:44] Speaker 04:
Were they able to follow through on the threat?

[00:40:46] Speaker 04:
And I think that MS-13, based on the arguments that were given by the government at trial, it certainly had the capacity to carry out a threat, to silence anyone, be that by whatever means they had available.

[00:41:00] Speaker 04:
The demeanor was it said in a joking way.

[00:41:02] Speaker 04:
Now, there was no joke about this letter.

[00:41:04] Speaker 04:
And there's no joking amongst these people in MS-13.

[00:41:07] Speaker 04:
And the perceived purpose, it wasn't to manipulate the system or to chop for a different judge.

[00:41:14] Speaker 04:
That's not why the letter was written.

[00:41:16] Speaker 04:
And this case is very different from those other cases we've seen where people have tried to manipulate the system, like the Polito case.

[00:41:23] Speaker 04:
where you had, I'm sorry, not Polito, Bassiano, where he was talking to his wife and he told his wife he was going to put out a hit list because he was going to try to get a different judge, but he didn't intend to go forward with that.

[00:41:34] Speaker 04:
Or there were cases that showed manipulation.

[00:41:36] Speaker 04:
This isn't that case.

[00:41:37] Speaker 04:
So I just wanted to address that because Madam Counsel raised it.

[00:41:41] Speaker 04:
And I would invite the court to look at those cases.

[00:41:44] Speaker 06:
Thank you.

[00:41:49] Speaker 05:
Next issue, please.

[00:41:52] Speaker 05:
Thank you, Judge Tatel.

[00:41:53] Speaker 05:
Robert Becker again on behalf of Mr. Sordo.

[00:41:56] Speaker 05:
I'd like to first talk about the absence of an appellate record.

[00:42:00] Speaker 05:
on this issue.

[00:42:02] Speaker 05:
Judges' decisions about which instructions to give and the wording of those instructions are among the most frugal grounds for appellate litigation in criminal cases.

[00:42:10] Speaker 05:
An example of the problem is a case from the circuit, US v. Mellows from 1993, 1984, Fed 2nd, 1293.

[00:42:20] Speaker 05:
The judge, in the reasonable doubt instruction, used strong belief in place of firmly convinced

[00:42:30] Speaker 05:
or abiding conviction about whether the person committed the act.

[00:42:35] Speaker 05:
And this court reversed and reversed several other cases in which that instruction was given.

[00:42:41] Speaker 05:
That's not this case.

[00:42:42] Speaker 05:
But what happened in this case was a two and a half hour off the record discussion of jury instruction.

[00:42:48] Speaker 05:
The government says, well, nobody ever pointed to any problems with that discussion.

[00:42:54] Speaker 05:
But let me explain why it was a problem.

[00:42:58] Speaker 05:
They went through 200 or so pages of jury instructions.

[00:43:02] Speaker 05:
A lawyer might have said, I would prefer that you use this phrase instead of that phrase in an instruction without having any general objection to the instruction.

[00:43:12] Speaker 05:
When the judge came back on the record, he wouldn't have noted that there was this discussion about using a different phrase.

[00:43:20] Speaker 08:
said what it did and the parties were asked to recreate what happened and they said that that's not the nature of the discussion.

[00:43:32] Speaker 08:
They said that the nature of the discussion was to see on which instructions do we all agree and which ones is there some disagreement and then we will discuss those disagreements on the record.

[00:43:46] Speaker 08:
So the example you just gave us wouldn't have happened

[00:43:50] Speaker 08:
if things were done the way that the judge and the lawyers said that they were done, right?

[00:43:57] Speaker 05:
I disagree with that, Judge Wilkins, because as I said, let's say we're talking about any given instruction, and counsel says based on this case, I would say this this way instead of that way.

[00:44:09] Speaker 05:
Doesn't have a general objection to the instruction itself.

[00:44:16] Speaker 01:
Well, if he's got no legal objection to the instruction itself, then by definition it's going to be harmless.

[00:44:21] Speaker 05:
I understand, but...

[00:44:23] Speaker 05:
From the standpoint of an appeal, that discussion is essential to understanding what happened during the discussion of jury instruction.

[00:44:33] Speaker 05:
We do not have that record.

[00:44:35] Speaker 05:
We don't know what was said there, even in passing.

[00:44:39] Speaker 05:
And so even if I were to raise an issue and find out that somebody said, please, I want you to use this instruction and was denied,

[00:44:47] Speaker 05:
We'd be in plain-error land at best, even if I could reconstruct that now.

[00:44:53] Speaker 01:
If anything was denied, I mean, the difficulty, as I see it, is that this conference was about, what's the stuff everyone agrees on?

[00:45:00] Speaker 01:
So nothing's getting denied.

[00:45:01] Speaker 01:
What's the stuff everyone agrees on?

[00:45:04] Speaker 01:
And then we'll go out for anything.

[00:45:06] Speaker 01:
There's disagreement.

[00:45:07] Speaker 01:
Then we do that in open court.

[00:45:09] Speaker 01:
I have to think the stuff that everyone agrees on is not going to involve your scenario and in any event is going to be a pure question of law for which presence is not uniformly required.

[00:45:22] Speaker 05:
And I would suggest to you without a record we don't know that truly because we only know what rose to what would have risen to the level of an objection.

[00:45:31] Speaker 01:
Were you there?

[00:45:32] Speaker 05:
I was not.

[00:45:33] Speaker 01:
I mean, but your client's lawyer was there.

[00:45:35] Speaker 05:
Yes, he was.

[00:45:36] Speaker 05:
And two years after the trial, when I filed a motion to reconstruct the record, nobody could remember or had any notes about that conference.

[00:45:47] Speaker 05:
we did try to reconstruct the record.

[00:45:50] Speaker 05:
And there was nothing in anybody's memory or files.

[00:45:53] Speaker 01:
What case says the defendant's right to be present even applies to this type of jury instruction, essentially a pre-charge conference, just to sort out the stuff no one objects to?

[00:46:08] Speaker 01:
Do you have any case authority?

[00:46:09] Speaker 01:
I mean, lots of cases say in the jury instruction, generally, they don't even have to be there.

[00:46:13] Speaker 05:
That brings us to the second part of this issue, which is the defendant's rights to be there.

[00:46:19] Speaker 05:
In Rogers, the court talked about

[00:46:24] Speaker 05:
having a procedure for re-instructing.

[00:46:28] Speaker 05:
And after Rogers recited the Rhodes case from the Fourth Circuit, which said that Rogers overruled its precedent that relied on Stincer for the proposition that because the defendant couldn't provide any useful information during that conference, he didn't have a right to be there.

[00:46:46] Speaker 05:
The government cited USP Rubin from the Second Circuit.

[00:46:50] Speaker 05:
So those are the two cases that are most clearly addressing this issue post Rogers.

[00:46:57] Speaker 05:
Several other circuits have come out, and most of these cases involve the scenario of re-instruction.

[00:47:03] Speaker 05:
The jury sends out a note, they get re-instructed.

[00:47:06] Speaker 05:
There are a bunch of cases in which the judge, without consulting counsel, re-instructed the jury.

[00:47:15] Speaker 05:
And the courts have generally held that the defendant

[00:47:19] Speaker 05:
saying this broadly, has a right to be present, that that procedure has to happen in open court.

[00:47:25] Speaker 05:
The defendant has a right to be present and counsel has a right to be heard under the Fifth Amendment and Rule 43.

[00:47:33] Speaker 05:
They do not distinguish counsel, the piece about right to be present during the Reinstruction, right to be present during

[00:47:42] Speaker 05:
the discussion about what would be said to the jury.

[00:47:45] Speaker 05:
But at least some of those cases, because that wasn't the issue, but at least some of those cases, for one, USB Burns 683, FedSecond 1056 in the Seventh Circuit,

[00:47:58] Speaker 01:
It is not.

[00:48:00] Speaker 05:
I found this yesterday, quite frankly, Judge.

[00:48:05] Speaker 05:
I did not, because I just found it.

[00:48:11] Speaker 05:
In a footnote says, the absence of a clear waiver of the defendant's right to be present.

[00:48:15] Speaker 05:
So the defendant has to personally waive the right to be present for that kind of proceeding.

[00:48:23] Speaker 08:
Two other circuits.

[00:48:24] Speaker 08:
There's also some authority from the Seventh Circuit that says that defendants don't have to be at pre-charge conferences.

[00:48:32] Speaker 08:
So if you're going to go outside to the Seventh Circuit, be aware that there's some law against you on this argument.

[00:48:39] Speaker 05:
I understand, Judge Wilkins.

[00:48:41] Speaker 05:
But it's hard to rationalize, I think,

[00:48:45] Speaker 05:
the defendant's right to be present during this process of re-instruction and say, well, he's got a right to be there without distinguishing whether we're going to have this discussion first, and then we're going to re-instruct, and saying, well, in the pre-charge conference, there's no right.

[00:49:08] Speaker 05:
Even if you were to balance these interests, the judge said he did this in chambers because it would waste people's time.

[00:49:15] Speaker 05:
And the absence of a record is not explained by wasting people's time.

[00:49:21] Speaker 05:
And I don't understand whose time was being wasted by holding this discussion in open court or particularly holding it off the record.

[00:49:31] Speaker 05:
It's just not an acceptable answer, I don't think, to say, we're going to hold this in chambers off the record.

[00:49:39] Speaker 05:
And then, if anything happens that goes wrong, then the appeal is, the appellant is in a terrible position.

[00:49:48] Speaker 08:
Well, I had the same question, but I looked back at the record and I saw that what happened is that each of the three defendants submitted their own sets of jury instructions.

[00:50:00] Speaker 08:
You know, 50 pages or more law, and the government had their own, their set of jury instructions.

[00:50:06] Speaker 08:
So the judge is faced with four sets of jury instructions where nobody had gone and kind of collated these and said, okay, we can all live with this one or that one or the other one.

[00:50:19] Speaker 08:
And it appears that he did this off the record chambers conference to at least do that.

[00:50:25] Speaker 08:
Now, if I had been the trial judge, I wouldn't have

[00:50:28] Speaker 08:
done it that way, because I would have made the party sit down and figure out what they objected to and file one document.

[00:50:35] Speaker 08:
But, you know, I'm a curmudgeon.

[00:50:38] Speaker 05:
Judge Wilkins, my sense from the transcript or from the proceeding to reconstruct the record was that in fact the judge had boiled down these three sets or four sets of instructions into a set that he was considering giving before that conference happened.

[00:50:55] Speaker 05:
I may be wrong about that, but that was my sense from reading

[00:50:58] Speaker 05:
between the trial transcript.

[00:50:59] Speaker 08:
But he had to confirm that with the lawyers as far as his view that everybody seems to agree on this one or that one or the other one.

[00:51:09] Speaker 08:
Am I right about that?

[00:51:12] Speaker 05:
And I believe ultimately that was what happened.

[00:51:15] Speaker 05:
But that doesn't mean that the discussion was solely limited to up or down on this instruction.

[00:51:23] Speaker 05:
over that period of time.

[00:51:25] Speaker 08:
So, and we can't know that because there is... Did anybody say that it was more than just up or down on any particular instruction?

[00:51:34] Speaker 08:
That's what... That's, I think, contemporaneously, isn't there something in the record where the trial judge says that that's what happened or that's what he was going to do?

[00:51:46] Speaker 05:
There were three paragraphs in the transcript of what was recount, his recounting of that two and a half hours.

[00:51:54] Speaker 05:
That was the sum total of the summary of two and a half hours of discussion was three or four paragraphs in the transcript.

[00:52:03] Speaker 08:
And it was, I guess my point is, has anybody said either from interpreting what the trial court said or what any of the lawyers said,

[00:52:17] Speaker 08:
that what transpired was anything other than just seeing whether there was consensus on a particular instruction or not.

[00:52:27] Speaker 05:
That is what the judge stated in the hearing in 2013 in February and everybody said we don't have any notes and we have no recollection that's different from yours.

[00:52:39] Speaker 05:
But that was two years after the trial.

[00:52:43] Speaker 05:
That was the best we could do in the proceeding under Rule 10.

[00:52:48] Speaker 08:
And nobody placed an objection, certainly, on the record after the instruction.

[00:52:54] Speaker 08:
And there was discussion of jury instructions on the record after that.

[00:52:59] Speaker 08:
I'm sorry, after that Chamber's conference.

[00:53:02] Speaker 05:
There was of the instructions to that for which there was a matter of debate.

[00:53:08] Speaker 05:
the RICO instructions, the charge instructions, the things like that.

[00:53:12] Speaker 08:
So why should we assume that there must have been debate about other instructions off the record?

[00:53:20] Speaker 05:
I think that you should assume that the absence of a record creates an issue about which there is doubt.

[00:53:31] Speaker 05:
And in the absence of a finding that the error did not cause a problem, I think the presumption should be that we have been harmed, at least in their appellate rights.

[00:53:48] Speaker 08:
Let me ask it this way.

[00:53:52] Speaker 08:
There's nothing in the federal rules of criminal procedure that says that every minute of every criminal proceeding has to be done on the record, right?

[00:54:02] Speaker 05:
That's correct.

[00:54:04] Speaker 08:
And there's no federal statute that says that every minute of every criminal proceeding has to be conducted on the record, right?

[00:54:13] Speaker 05:
That's correct.

[00:54:15] Speaker 08:
So then

[00:54:17] Speaker 08:
But we follow from that and that trial judges have some discretion to do some things off the record in the context of the criminal proceeding, right?

[00:54:28] Speaker 05:
I guess.

[00:54:29] Speaker 05:
Yes, as a general matter, that is true.

[00:54:33] Speaker 08:
So how are we to, you know, if we've got to set rules and guidelines,

[00:54:40] Speaker 08:
What are you saying is the rule or guideline for when a judge can or cannot exercise his or her discretion to conduct some part of the proceeding that they believe is a housekeeping matter off the record?

[00:54:55] Speaker 05:
I guess my response is that jury instruct- discussions of jury instructions are never merely a housekeeping issue and this court should at least guide judges by saying if

[00:55:11] Speaker 05:
We wouldn't be here in this case if there was a record of that proceeding.

[00:55:16] Speaker 05:
And therefore, judges should discuss the jury instructions on the record.

[00:55:22] Speaker 05:
I have been practicing before this court since 1992.

[00:55:24] Speaker 05:
This is the first case I have had where a judge went off the record for a lengthy period of time to discuss jury instruction.

[00:55:36] Speaker 05:
Thank you.

[00:55:39] Speaker 06:
OK.

[00:55:39] Speaker 06:
Ms.

[00:55:40] Speaker 06:
Bates?

[00:55:42] Speaker 06:
Welcome again.

[00:55:42] Speaker 00:
Here, there's simply no error, let alone plain error, in the manner in which this pre-charge conference was conducted.

[00:55:49] Speaker 00:
The record makes clear both the record immediately before and after the conference itself and the subsequent rule 10 proceedings that the purpose of the pre-charge conference was simply to

[00:56:01] Speaker 00:
go through the proposed instructions that each party had proposed to set the court, whether it had collated those or not at that point, and determine, and this is the quote from the judge immediately after the instruction, to determine which of any of them required oral argument because of differences of opinion.

[00:56:19] Speaker 00:
There was then over a hundred pages of transcript where the parties discussed those differences of opinions and objections to the form of many of the instructions, and I think it's fair to say most if not all of the substantive charge-based instructions in this case.

[00:56:40] Speaker 00:
there is simply no error in having that pre-charge conference off the record.

[00:56:45] Speaker 00:
Perhaps would it have been better or make a simpler record and have eliminated the need for this discussion now on appeal had it been done on the record?

[00:56:57] Speaker 00:
Perhaps, but there was no legal violation of principle of law that is implicated by the fact that that initial pre-charge conference happened off the record.

[00:57:07] Speaker 00:
especially where there was the subsequent discussion that appellants themselves were present at and had the opportunity to participate in, something that I think is not even on its face required by Rule 43 or even the constitutional principles.

[00:57:25] Speaker 00:
But here, that happened.

[00:57:27] Speaker 00:
So there simply is no basis to find error in the manner that this conference occurred.

[00:57:35] Speaker 00:
Unless there are any further questions.

[00:57:37] Speaker 01:
I actually have one question about the sufficiency of the evidence on the vicar.

[00:57:42] Speaker 01:
If she would now be the best time to do that.

[00:57:44] Speaker 01:
When we warned you, we might want to.

[00:57:46] Speaker 01:
These are things.

[00:57:48] Speaker 01:
And it's just a legal one.

[00:57:49] Speaker 01:
So I know what I would call the vicar mode of here the advancement of the gang enterprise or protection of status within the gang enterprise.

[00:58:03] Speaker 01:
Doesn't have to be the sole motivation.

[00:58:05] Speaker 01:
But it has to be causal.

[00:58:08] Speaker 01:
So if it's not sole motive, does it have to be primary motive, substantial motive, any motive, however small?

[00:58:17] Speaker 01:
I don't know how to review sufficiency without knowing what that legal test is.

[00:58:20] Speaker 01:
The jury instruction was utterly vague.

[00:58:23] Speaker 01:
And I just don't know what the legal rule is and haven't been able to find out.

[00:58:29] Speaker 00:
I will say that I don't know, based on the reason I'm not sure that the question was articulated in that degree of precision.

[00:58:39] Speaker 00:
haven't conducted a thorough search out of the jurisdiction in all cases on that question.

[00:58:45] Speaker 00:
But I don't think that there's any case that I've seen or that appellants have cited that suggests that it has to be more than a purpose for which the act was undertaken.

[00:58:56] Speaker 00:
So either the purpose of maintaining or increasing position in the enterprise must be present.

[00:59:05] Speaker 00:
And I think here the evidence is clear.

[00:59:07] Speaker 01:
It was something they were thinking about, but they would have killed her anyhow, because they didn't want to be booted out of their apartment.

[00:59:13] Speaker 01:
I don't know how to review sufficiency without knowing the legal test, but the government has a position that if it's a factor however small, that counts.

[00:59:24] Speaker 01:
Or maybe it doesn't have to be predominant, but substantial.

[00:59:27] Speaker 01:
And if you don't know now, I understand you all didn't plan to argue this, but it would be very helpful to me to at least have

[00:59:33] Speaker 01:
maybe a short letter or something.

[00:59:35] Speaker 00:
I will say that standing here today, I think that the government's position and I will... Isn't this a plain error issue?

[00:59:45] Speaker 01:
Is this a plain error issue?

[00:59:46] Speaker 01:
No, I thought sufficiency evidence.

[00:59:49] Speaker 06:
Oh, sorry.

[00:59:51] Speaker 06:
No, I don't believe that... This issue is not plain error?

[00:59:55] Speaker 00:
I don't believe that we have

[00:59:58] Speaker 00:
asked the court to review this on plain error review.

[01:00:01] Speaker 00:
Although I will say that that specific question was not teed up either at the trial level, the degree to which it must be a purpose was not one that I think was raised in the precinct.

[01:00:15] Speaker 00:
I understand that.

[01:00:15] Speaker 01:
I just don't know how to know if there's enough.

[01:00:17] Speaker 01:
If I don't know what the test is, I don't know if there's enough.

[01:00:20] Speaker 00:
I would say that standing here today,

[01:00:23] Speaker 00:
I believe that it is the government's position, and I have no reason to believe that there's any case law that suggests, to the contrary, that it must just be a purpose, that there must be sufficient evidence that it was a purpose for which the act was undertaken.

[01:00:37] Speaker 00:
May it be one of two, the only one of many, that as long as there is sufficient evidence that it was viewed in the light most favorable to the government, that it was a purpose, that that is sufficient.

[01:00:47] Speaker 01:
And just to be clear, if it would have happened otherwise, your position would still be, that counts.

[01:00:54] Speaker 01:
Could be that, yes, well, yeah, that too.

[01:00:57] Speaker 01:
But they would do it anyhow.

[01:00:59] Speaker 01:
Is that what you mean by a purpose?

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

[01:01:01] Speaker 01:
Or it had to actually contribute in some causal way?

[01:01:06] Speaker 00:
And again, I would say that I haven't looked in this.

[01:01:09] Speaker 00:
But I think unless, and I will inform the court if we believe that our position should be different.

[01:01:15] Speaker 00:
But I think, yes, it does not have to be causal in the sense that it would not have happened but for that

[01:01:22] Speaker 00:
vicar purpose in this case, but I think here the evidence again it must be viewed in the light most favorable to the government and the reasons for which we have set forth in the brief that there was evidence that Cordova and Gutierrez undertook the actions

[01:01:39] Speaker 00:
I think there's sufficient evidence to find that it was not just a very minimal purpose, but a guiding purpose of undertaking the action.

[01:01:46] Speaker 01:
Was there also evidence, I think I was curious about, I'm sorry, were you at the trial attorney too?

[01:01:50] Speaker 01:
I was not.

[01:01:51] Speaker 01:
Okay.

[01:01:52] Speaker 01:
Was there evidence also that it would be disruptive to gang operations just to have to relocate?

[01:01:58] Speaker 01:
I didn't sort of see that argument, but one can imagine that seemed to be sort of their, at least one of their headquarters, and if you have to sort of relocate, that's gonna be a problem too.

[01:02:09] Speaker 00:
I agree that there wasn't, in the form of closing arguments, that specific argument again, because this was not one of the primary battlegrounds at trial.

[01:02:20] Speaker 00:
But yes, I think that based on the record, this court could look to the fact that this was a location where these two individuals, and this is one of the arguments made in the government's brief, were storing weapons, that this was a place where they were residing and had their

[01:02:40] Speaker 00:
Belongings as they related to use in connection with the gang operations and that it would have been not only you know potential threat Had the victim called the police to assist with removing them from the house But just kicked them out on their own and that they would have had to find a new location to store those weapons Was there evidence of other stuff besides weapons?

[01:03:02] Speaker 01:
I mean weapons is obviously relevant was drugs or

[01:03:07] Speaker 01:
money or stuff like that that was also in the same location.

[01:03:10] Speaker 01:
If you don't know, that's fine.

[01:03:11] Speaker 00:
I don't have specific facts to point to.

[01:03:14] Speaker 00:
I think that the weapons were the key piece there that was directly tied not only to the gang, but to the offenses that were a subject of the trial.

[01:03:23] Speaker 06:
Thank you.

[01:03:24] Speaker 06:
Mr. Becker, any more time?

[01:03:31] Speaker 05:
I would just like to make one point.

[01:03:35] Speaker 05:
On the appellate issue, we have this case law that says this is a discussion, the jury discussion in chambers, jury instruction discussion in chambers, is a matter of law for which the defendant has no right to be there because he has no reasonable import.

[01:03:54] Speaker 05:
But this discussion of legal issues, then are we saying that that's not important enough to make sure that that is on the record so that it can be reviewed?

[01:04:06] Speaker 05:
And I think that's the dichotomy we come to in this case.

[01:04:10] Speaker 05:
Thank you.

[01:04:11] Speaker 06:
Do you want to say anything about the question Judge Malletta asked?

[01:04:14] Speaker 05:
That question does not address my client.

[01:04:16] Speaker 05:
Would you rather have one of your colleagues answer that?

[01:04:20] Speaker 06:
I cannot help you with that.

[01:04:21] Speaker 06:
OK, fine.

[01:04:22] Speaker 06:
Great.

[01:04:22] Speaker ?:
OK.

[01:04:24] Speaker 06:
Testimony in Spanish.

[01:04:30] Speaker 06:
Ms.

[01:04:30] Speaker 06:
Davis.

[01:04:32] Speaker 03:
Good morning.

[01:04:33] Speaker 03:
May I please support?

[01:04:34] Speaker 03:
I'm Mary Davis, and I represent Mr. Cordova.

[01:04:36] Speaker 03:
And yes, the issue I'd like to address is whether the court abused its discretion when it allowed an English-speaking witness to testify in Spanish through an interpreter.

[01:04:47] Speaker 03:
I think it's important to note that the witness that we're speaking of, Mr. Flores, was a key significant government witness who testified extensively regarding the shooting in Virginia.

[01:04:59] Speaker 03:
the shooting of his mother, Ms.

[01:05:01] Speaker 03:
Flores.

[01:05:02] Speaker 03:
He also testified that Mr. Cordova was wanted for murder in El Salvador, and he testified to much, much more.

[01:05:09] Speaker 03:
His testimony was extensive.

[01:05:11] Speaker 03:
He also testified extensively regarding the Ventura homicide.

[01:05:15] Speaker 03:
So therefore, his testimony was very significant, his credibility very important, I believe.

[01:05:22] Speaker 03:
28 USC 1827 D requires that the district court determine whether a witness speaks only or primarily a language other than English.

[01:05:32] Speaker 03:
In this case, the court only decided that Spanish was Mr. Flores primary language.

[01:05:37] Speaker 03:
The statute goes on to say that the court must determine whether if the language is primarily something other than English, the court has to determine whether that inhibits the witness's comprehension of questions and presentation of such testimony.

[01:05:54] Speaker 03:
In this case, the court made no determination as far as Mr. Flores' ability to speak English.

[01:06:00] Speaker 08:
But the defendants

[01:06:02] Speaker 08:
Council never asked for that to be done prior to him beginning the direct examination, right?

[01:06:07] Speaker 03:
That is correct.

[01:06:08] Speaker 08:
There was no objection to him testifying in Spanish on track.

[01:06:12] Speaker 03:
That's correct.

[01:06:13] Speaker 08:
So why wouldn't it just be reasonable for the court to say you can't have him testify in Spanish on direct and then English, because then the jury's going to see him kind of differently on this cross-examination, and that's not fair to the government.

[01:06:29] Speaker 08:
If you wanted him to testify in English, you should have said something before he's commenced the direct.

[01:06:35] Speaker 03:
Well, I think it's, first off, I think it's very obvious in any of these cases that government witnesses are thoroughly prepared by the government.

[01:06:43] Speaker 03:
And so I believe all questions asked to Mr. Flores by the government had already been anticipated.

[01:06:50] Speaker 01:
Well, hadn't two.

[01:06:50] Speaker 01:
I mean, it's even worse than Judge Wilkins is suggesting.

[01:06:53] Speaker 01:
I guess my recollection is at least one, if not two cross-examinations had already occurred in Spanish as well.

[01:06:58] Speaker 01:
That's correct.

[01:06:59] Speaker 01:
So direct and two-thirds of the cross-examination have been in Spanish.

[01:07:02] Speaker 01:
That's correct.

[01:07:03] Speaker 01:
That's correct.

[01:07:04] Speaker 03:
But I think it's also important for the jury to see that, number one, this witness was able to speak English, and number two, that it would allow the jury to see the inflections in his voice, notice if there's any hesitation.

[01:07:21] Speaker 03:
If this witness was able to understand English, which we believe he was based on his background,

[01:07:27] Speaker 03:
If he was able to understand English, he was hearing the questions in English, taking time to think through his answers, and then giving his answers.

[01:07:35] Speaker 03:
If he were made to testify in English, he wouldn't have that hesitation.

[01:07:41] Speaker 03:
And if there was a hesitation, that's something that the jury should have been allowed to see.

[01:07:46] Speaker 06:
I believe... But the judge expressly found that not only that

[01:07:51] Speaker 06:
Spanish was his original language, but that he would have difficulty in English, that there were aspects of the testimony that would be tricky for him.

[01:08:01] Speaker 03:
The judge said that he understood that Mr. Flores, his first language was Spanish.

[01:08:09] Speaker 03:
And he said that he probably does understand.

[01:08:12] Speaker 03:
He can get by speaking English on the street.

[01:08:15] Speaker 03:
However, I'm sorry.

[01:08:17] Speaker 03:
No, go ahead.

[01:08:18] Speaker 03:
But I don't think there's any question asked of this witness that was difficult.

[01:08:25] Speaker 03:
And also, the attorney suggested, well, if there is difficulty in understanding, the interpreter is there to help.

[01:08:31] Speaker 03:
So, I think to, when a witness is able to speak English, the witness should be, the court at the very least, should hold a hearing to determine the extent that he can speak English and understand the questions and answer the question.

[01:08:45] Speaker 01:
That's a procedural question.

[01:08:47] Speaker 01:
If a witness isn't going to test in, excuse me, testify in

[01:08:52] Speaker 01:
English is there the rules require?

[01:08:56] Speaker 01:
Advanced notice from whoever's presenting that witness, or do you just not know until the moment the person takes the stand?

[01:09:04] Speaker 01:
Did you know in advance?

[01:09:06] Speaker 03:
I don't know.

[01:09:07] Speaker 03:
I don't do a lot of trial work.

[01:09:09] Speaker 03:
I don't know the answer to that.

[01:09:12] Speaker 03:
I would expect that they would know

[01:09:15] Speaker 03:
shortly in advance, that the person will be testifying in Spanish.

[01:09:18] Speaker 01:
You weren't a trial lawyer here?

[01:09:19] Speaker 01:
Excuse me?

[01:09:20] Speaker 01:
You were not a trial lawyer here?

[01:09:21] Speaker 01:
No, I was not, no.

[01:09:22] Speaker 01:
The government will know the answer.

[01:09:23] Speaker 03:
Yeah, but I would think because there's interpreters there ready to translate that the parties would know at that point, at least, that the person will be testifying in Spanish.

[01:09:34] Speaker 03:
And again, I think the statute requires more than what the judge did in this case.

[01:09:39] Speaker 03:
The judge held no independent hearing.

[01:09:41] Speaker 03:
It was requested

[01:09:43] Speaker 03:
that he'd speak in English and the judge only made, as far as the statute goes, there was two required findings.

[01:09:50] Speaker 03:
He only made the first finding and he didn't even find that all the way.

[01:09:54] Speaker 03:
So I think that was a violation of the statute.

[01:09:56] Speaker 01:
And I think... Did you, Mr. Cordova's attorney, do you have a view on this FICAR, the motive issue that I was asking the government about?

[01:10:03] Speaker 01:
I believe that was actually briefed by

[01:10:07] Speaker 03:
was your client, I thought, that raised the threat.

[01:10:11] Speaker 03:
Yeah.

[01:10:11] Speaker 03:
It was both clients.

[01:10:13] Speaker 03:
I believe that was briefed by other counsel.

[01:10:16] Speaker 03:
So you don't have any view on that?

[01:10:18] Speaker 03:
I do not.

[01:10:18] Speaker 03:
I'm sorry.

[01:10:20] Speaker 03:
So if there are no further questions.

[01:10:22] Speaker 03:
Thank you.

[01:10:35] Speaker 00:
All right.

[01:10:35] Speaker 00:
Here, the record does not demonstrate that there was any error, let alone abuse of discretion, in permitting the witness to continue his testimony in Spanish.

[01:10:44] Speaker 00:
As appellant concedes, there was evidence in the trial court made a finding that Spanish was his primary language.

[01:10:51] Speaker 00:
There were also questions posed to this witness where the witness made clear that he preferred to speak in Spanish because he could understand exactly

[01:10:59] Speaker 00:
when someone spoke in Spanish, and that there were words in English that he didn't quite understand.

[01:11:04] Speaker 01:
And that's reflected in the trial court's discussion after the... Well, some words, though, is not a finding that he was not, you know...

[01:11:16] Speaker 01:
functionally fluent in Spanish.

[01:11:19] Speaker 00:
Some words.

[01:11:22] Speaker 01:
I think it was words that he might not.

[01:11:26] Speaker 01:
I think he said there were some words I might not get.

[01:11:28] Speaker 01:
Why isn't that exactly the situation when you should go forward in English and then just have an interpreter standing by just in case?

[01:11:36] Speaker 00:
Well, I think you have to read that fact in the context that first he was asked what his primary language was, and the answer to that was Spanish, and that he then exclaimed that... Someone can have a primary language and still be functionally fluent.

[01:11:49] Speaker 01:
I mean, I know a lot of people whose primary language is English and are perfectly fluent.

[01:11:55] Speaker 01:
in Spanish or in other languages.

[01:11:58] Speaker 01:
And if someone was, you know, functionally bilingual, do you think the district court could do this?

[01:12:03] Speaker 01:
Put aside the fact that it, I know you got the separate argument, that it was raised way too late.

[01:12:06] Speaker 01:
So let's just table that for a minute and just ask this pure legal question.

[01:12:09] Speaker 01:
If someone is functionally bilingual, can a district court do this?

[01:12:15] Speaker 00:
In circumstances, yes.

[01:12:19] Speaker 00:
Functionally bilingual still leaves open the possibility that a witness in the court could make a finding that the primary language that the witness used is one or the other.

[01:12:31] Speaker 00:
and that even though they may be functionally bilingual, that it would aid in their comprehension and the presentation of their testimony to speak in the language of the two.

[01:12:45] Speaker 01:
Is there no confrontation clause balance here?

[01:12:48] Speaker 01:
The jury is listening in English.

[01:12:51] Speaker 01:
And the defense, again, imagine they made a timely objection here.

[01:12:56] Speaker 01:
And the defense says, I want them to see him, I want them to hear his voice, his inflections, not the interpreters, in the language that the jury itself speaks and understands.

[01:13:09] Speaker 01:
And I don't want him to have all this time delay.

[01:13:12] Speaker 01:
This is not comforting, you know, this is, surely you couldn't have a Cyrano to Bergerac type thing where, you know, the button's over here and whispers someone else's answers for him so that he don't have the,

[01:13:21] Speaker 01:
body language and inflection issue.

[01:13:23] Speaker 00:
I don't believe that that rises to the level of infringement on a confrontation right.

[01:13:31] Speaker 00:
Again that right

[01:13:32] Speaker 00:
is to have the witness present, have the full opportunity to cross-examine the witness to the extent that there is some meaningful inflection.

[01:13:40] Speaker 00:
The jury would hear that in the language that the witness was speaking.

[01:13:44] Speaker 00:
Defense counsel would have an opportunity through the interpreter to clarify what word or at point if it wasn't obvious just from the manner at the timing of the phrase that the inflection occurred, that that occurred.

[01:13:58] Speaker 00:
If there was a

[01:14:01] Speaker 00:
point to be made of the delay beyond what the jury would see itself.

[01:14:06] Speaker 00:
The jury would know.

[01:14:06] Speaker 00:
This witness has the pause that we are all witnessing in the live courtroom.

[01:14:12] Speaker 01:
So the government would have no objection if the defense wanted to do this with one of its witnesses.

[01:14:17] Speaker 01:
It's perfectly bilingual.

[01:14:20] Speaker 01:
But let's have a buffer between him and the jury.

[01:14:22] Speaker 01:
And the government would have no objection to that.

[01:14:24] Speaker 01:
It sounds like your position is perfect.

[01:14:26] Speaker 00:
I think perfectly bilingual, there still is more that maybe looked at here.

[01:14:32] Speaker 00:
And do I think that it would be an abuse of the court's discretion in that situation to permit the witness?

[01:14:42] Speaker 01:
No.

[01:14:42] Speaker 01:
So the government's position is defense can do this too, in my hypothetical.

[01:14:47] Speaker 00:
That if this were a defense witness in this situation,

[01:14:53] Speaker 00:
and the government were standing here on the other side, that I still do not think that it would be an abuse of the trial court's discretion to have permitted the witness, even if it was closer in the nature of bilingual capabilities, to testify in the language if the court found that it was their primary language and that the interpreter would aid in the presentation of the testimony.

[01:15:17] Speaker 00:
But that's, I think, what recognizes not the situation we have here.

[01:15:24] Speaker 06:
Thank you.

[01:15:27] Speaker 06:
Does Ms.

[01:15:27] Speaker 06:
Davis have any more time?

[01:15:40] Speaker 03:
Very quickly, I would only reiterate that the judge was required to follow the statute, the applicable statute in this case.

[01:15:48] Speaker 03:
He did not do that.

[01:15:49] Speaker 03:
he didn't satisfy either prong that should have been answered.

[01:15:53] Speaker 03:
And so therefore, we request that the convictions be reversed as far as that issue.

[01:15:59] Speaker 03:
In regard to your question regarding the sufficiency of evidence, this is quite embarrassing, but no one recalls who actually wrote that issue in the brief.

[01:16:09] Speaker 03:
We would submit, however, that there needs to be

[01:16:14] Speaker 03:
some significant evidence in order to satisfy the sufficiency, and that in this case, it is very clear that, as Your Honor was mentioning earlier, the offense would have happened regardless, because they were being forced out of the apartment, and that was not enough to satisfy the requirements of the statute to convey.

[01:16:39] Speaker 08:
Well, the instruction that was given

[01:16:42] Speaker 08:
which I think was basically the same language, at least on this part, is what the government requested, was that for the vicar charges, whether it was the vicar murder or the maiming, was that the murder or the maiming was committed for the purpose

[01:17:05] Speaker 08:
of gaining entrance to or maintaining or increasing position in the charged enterprise.

[01:17:12] Speaker 08:
So to me, the key language there is it was committed for the purpose.

[01:17:16] Speaker 03:
For that purpose.

[01:17:17] Speaker 03:
And we would submit that there was significant other evidence at trial that that was not the purpose that the crimes were committed.

[01:17:26] Speaker 08:
So I think that that's, whether that instruction is right or wrong isn't before us, but that's the instruction that was given at the government's request, at least as best as I can tell right now.

[01:17:43] Speaker 03:
Yes, Your Honor.

[01:17:47] Speaker 03:
Any questions?

[01:17:48] Speaker 06:
Thank you.

[01:17:51] Speaker 06:
Ms.

[01:17:51] Speaker 06:
Davis, Mr. Becker, and Mr. Martin, you were appointed by the court to represent the defendants.

[01:17:57] Speaker 06:
You've done a fine job, and we're grateful to you for your assistance.

[01:18:00] Speaker 06:
The case is submitted.