[00:00:03] Speaker 00:
Case number 13-3085, United States of America versus LaFrance's Dudley O'Neill Appellant.

[00:00:09] Speaker 00:
Mr. Beaton for the amicus curai, Ms.

[00:00:11] Speaker 00:
Kelly for the appellee.

[00:00:16] Speaker 04:
Good morning.

[00:00:17] Speaker 05:
Good morning.

[00:00:17] Speaker 05:
You may please the court.

[00:00:18] Speaker 05:
My name is Benjamin Beaton, and I'm here at the court's invitation as amicus on behalf of the appellant's position in this case.

[00:00:27] Speaker 05:
We've identified OECC, and I've reserved two minutes for a medal.

[00:00:32] Speaker 05:
We've identified three errors in our papers from the court below.

[00:00:37] Speaker 05:
I'd like to start, if I may, with the first, the erroneous exclusion of the 608B evidence regarding the prior acts of untruthfulness by the government's key witness, Mr. Ramsey.

[00:00:54] Speaker 05:
These were presented the Brady materials, and I don't think there is much of a dispute yet at this point of the legal error the district court committed in applying a requirement of a conviction or an admission of culpability to exclude the evidence.

[00:01:12] Speaker 01:
The standard- You don't think it's disputed that the trial court made a legal error?

[00:01:18] Speaker 05:
I said it's nearly undisputed.

[00:01:22] Speaker 05:
I recognize that the government takes issue in its papers with that.

[00:01:27] Speaker 05:
But I believe what you see is they moved quickly from Rule 608B, where there could be no mistake that admission or conviction is the only basis to exclude, to the Rule 403 analysis, which gets more attention in the papers.

[00:01:45] Speaker 05:
That rule 403 analysis, I would note, is completely, largely speculative because it didn't occur at the court below.

[00:01:55] Speaker 05:
Obviously, if the judge had made a determination that the probative nature of this information was substantially outweighed, that would be a different

[00:02:06] Speaker 05:
question of error for the court's determination.

[00:02:08] Speaker 01:
What did the defense counsel do either to cite Rule 608B or to point the court to its theory of relevance or to point the court to what its proffer was of what this cross-examination would show if successful?

[00:02:25] Speaker 01:
What if any of those things happened indirectly?

[00:02:28] Speaker 05:
Sure.

[00:02:29] Speaker 05:
I think the proffer to start was clearly the Brady information that was discussed on the record.

[00:02:38] Speaker 05:
I am not certain that Rule 608B by its terms was invoked, though the context, I believe, makes clear that

[00:02:47] Speaker 05:
This was a prior act, provative of untruthfulness, that would undermine the testimony that Mr. Ramsey offered.

[00:03:00] Speaker 01:
I mean, I guess my problem here is that your standard, the standard of review we have is abuse of discretion.

[00:03:09] Speaker 01:
Correct.

[00:03:10] Speaker 01:
And you're saying that the court made a legal error, but

[00:03:15] Speaker 01:
I'm having trouble understanding from the proper exactly what what was intended to be shown and how it was argued that it was even relevant or how it was how it was to be used.

[00:03:29] Speaker 05:
Well, I agree.

[00:03:32] Speaker 05:
You draw the record is less than clear.

[00:03:35] Speaker 05:
In part, though, I believe that's because, um,

[00:03:37] Speaker 05:
the district judge and the prosecutor both quickly invoked the wrong rule, this erroneous requirement of conviction or an admission, and that, if you follow the colloquy, it's quite clear that it redirects the nature of the inquiry at that time.

[00:03:57] Speaker 01:
But the district court didn't say that.

[00:04:00] Speaker 01:
The district court said the opposite at one point during the colloquy.

[00:04:05] Speaker 01:
The district court said it doesn't have to be a conviction if it's relevant to bias or something of that nature, right?

[00:04:10] Speaker 05:
I believe it was, that is nearly, I nearly agree with that statement, Your Honor.

[00:04:15] Speaker 05:
I believe the judge said it does not necessarily, maybe it does not necessarily need to be a conviction.

[00:04:22] Speaker 05:
or an admission though that came after the previous statement of the wrong rule and at the end of the discussion quite clearly the rule that's articulated by the court is because there is no conviction or admission then this would not be a proper subject for inquiry.

[00:04:42] Speaker 01:
Well I guess

[00:04:45] Speaker 01:
The problem that I have is that the proffer was never put in the record as to what the evidence was of these acts.

[00:04:56] Speaker 01:
The government made more of a proffer than the defense counsel did with respect to, I think the prosecutor said that the bad check was a check under $500, and I think the government counsel said it didn't have anything to do with real estate.

[00:05:14] Speaker 01:
Isn't that what the proffer was from the government?

[00:05:17] Speaker 05:
Well, that's part of it.

[00:05:19] Speaker 05:
Defense counsel first identified the second instance of prior untruthfulness, the evidence of a counterfeit document used to open a bank statement.

[00:05:31] Speaker 05:
at which point defense counsel was cut off by the prosecutor to say, no, it was a bad check.

[00:05:36] Speaker 05:
That was, I guess, true in part.

[00:05:38] Speaker 05:
There was also a bad check incident that was at stake.

[00:05:42] Speaker 05:
But there was also the second instance with the counterfeit document used to open the bank account untruthfully.

[00:05:51] Speaker 01:
Well, I guess all I'm saying is that that's all we know about that incident from what I see in the papers.

[00:06:00] Speaker 01:
Defense counsel didn't say when that happened, what the document was, what the circumstances were of opening of the account, anything else.

[00:06:12] Speaker 01:
We don't know anything else about this.

[00:06:15] Speaker 01:
The trial court didn't seem to know anything else about this.

[00:06:18] Speaker 01:
And if the person denies it, then the question is, without any proffer as to where this was going to go,

[00:06:26] Speaker 01:
Why should the trial court have thought that this was going to be a fruitful area of cross-examination at all?

[00:06:33] Speaker 05:
Well, of course, it's clear that Mr. Ramsey's denial was inaccurate.

[00:06:38] Speaker 05:
And so I don't think that relieves the government of its burden on this point.

[00:06:44] Speaker 01:
Why do we say that the denial was inaccurate?

[00:06:47] Speaker 05:
Because he was, in fact, charged with

[00:06:51] Speaker 05:
uttering a bad check under $500 in Maryland's equal.

[00:06:54] Speaker 01:
But the proffer was that there was a warrant that was issued that was never executed and he never went to court.

[00:07:01] Speaker 01:
So he could have said, I never went to court.

[00:07:04] Speaker 01:
I didn't know anything about it.

[00:07:05] Speaker 01:
And that could have been true, because the proffer was that he was never confronted with the charge.

[00:07:11] Speaker 05:
I believe that was Mr. Ramsey's response, which I would submit was carefully worded to say that he didn't recall going to court in Maryland on this.

[00:07:27] Speaker 01:
I can find it in the record, counsel, but I'm talking about what the government said.

[00:07:48] Speaker 03:
I think on App 464, was there of any allegations made against you regarding a bad check or opening a bank account with a bad check?

[00:07:57] Speaker 03:
witness, not to my knowledge.

[00:07:58] Speaker 03:
I've never been in front of a judge or received any citation that I know of.

[00:08:03] Speaker 03:
And I thought it was clear that this thing was never served on him.

[00:08:05] Speaker 03:
Right.

[00:08:06] Speaker 03:
So that's what's inaccurate about them.

[00:08:13] Speaker 05:
So I don't think an inaccuracy is necessarily required here.

[00:08:18] Speaker 05:
The Whitaker case, the Kudlitz case that we cite both say this is a question that the jury gets to hear, even if there is a denial.

[00:08:26] Speaker 03:
No, I thought you had made your point that he made an inaccurate denial.

[00:08:32] Speaker 05:
I guess my point would be that to the extent the takeaway is that this incident didn't happen, that would be inaccurate.

[00:08:44] Speaker 03:
How do we know?

[00:08:46] Speaker 03:
There's never been any adjudication of this.

[00:08:48] Speaker 03:
He was never even served or prosecuted.

[00:08:50] Speaker 03:
How do we know it actually happened?

[00:08:55] Speaker 03:
I kind of presume people innocent, right?

[00:08:57] Speaker 03:
That's our starting point?

[00:08:59] Speaker 05:
Yes, as a matter of his criminal guilt, but under 608B, an arrest warrant signed by the prosecutor, I think, clearly would satisfy the reasonable basis that a question is probative of untruthfulness.

[00:09:12] Speaker 05:
I quite agree that we wouldn't assume that he had been convicted, but under the much more forgiving standard that Rule 608B has, or simply cross-examining someone on a question of probative untruthfulness, that is something that the jury would be entitled to hear.

[00:09:26] Speaker 03:
I guess the other question I had was that under 608B you can't use extrinsic evidence to cross-examine.

[00:09:34] Speaker 03:
So I thought when the district court said that there was a rule of requiring admissions of culpability, but that so little was offered here by defense counsel, just this reference to this document, and it's

[00:09:50] Speaker 03:
unserved.

[00:09:51] Speaker 03:
We don't have any other facts that go around it, that surround it.

[00:09:54] Speaker 03:
That once he denied it, you're not going to be able to confront him with that charge in court because of the ban on external evidence.

[00:10:01] Speaker 03:
So there just was nothing more to be done.

[00:10:03] Speaker 03:
Isn't that what the district court was ruling?

[00:10:06] Speaker 05:
I don't think the district court put it in so many words.

[00:10:11] Speaker 05:
As you did, I think the ruling was that absent a confession or a conviction, then it's not coming in.

[00:10:19] Speaker 03:
I don't see that.

[00:10:21] Speaker 03:
I mean, I think that's sort of a description of where this process led them to.

[00:10:25] Speaker 03:
So we don't have a conviction, so we're not

[00:10:27] Speaker 03:
you know, admitting something on that basis.

[00:10:29] Speaker 03:
And then we don't have, but he was clear that that's not a requirement when he said it's not a conviction, but does it have to be a conviction if it's a bad act?

[00:10:37] Speaker 03:
If it goes to credibility?

[00:10:38] Speaker 03:
So I don't think the district court ever said you have to have a conviction.

[00:10:40] Speaker 03:
Obviously, if it were a conviction, that would be a helpful consideration.

[00:10:45] Speaker 03:
But when it's not a conviction and it's been denied by the individual and there's no ability to use extrinsic evidence,

[00:10:54] Speaker 03:
Then what more was the judge supposed to allow absent a proffer.

[00:10:58] Speaker 05:
So quite clearly.

[00:11:02] Speaker 05:
There is no ability to come up with extrinsic evidence.

[00:11:05] Speaker 05:
I don't see that on the record we have here as being a part of the analysis.

[00:11:09] Speaker 05:
What does come... Isn't that what he means?

[00:11:10] Speaker 03:
When he... Look, you deny... That's what you do.

[00:11:12] Speaker 03:
They deny it.

[00:11:13] Speaker 03:
And so you're not going to have him admitting to it.

[00:11:15] Speaker 03:
And so the only way to prove this is going to be to bring in extrinsic evidence, isn't it?

[00:11:19] Speaker 03:
I mean, there's just... There's nothing more for defense counsel to do?

[00:11:21] Speaker 05:
No, Your Honor.

[00:11:22] Speaker 05:
I submit that the Whitaker case, the Kettles case from Judge Boudin, both explain why it's important for the jury to hear the denial, even if there's not going to be any evidence submitted contrary.

[00:11:32] Speaker 05:
Also on this point, it is critical, I think, that this denial would be undergirded by what should have been cross-examination about the counterfeit document that was pre-dermitted by the erroneous rule of law, as well as the exclusion of the Snowden's testimony.

[00:11:49] Speaker 03:
So the counterfeit check, I'm trying to open a bank account with a counterfeit check, I get that that one actually is more recent, it was closer in time.

[00:11:57] Speaker 03:
Correct, 2006.

[00:11:59] Speaker 03:
To the incident, and at least seems closer to the type of, at least, I guess it's somewhat closer to the type of fraud at issue in the case, but what wasn't clear to me was that Mr. McCants

[00:12:13] Speaker 03:
ever broke it out for the judge.

[00:12:15] Speaker 03:
There seemed to be this, he mentions it, and everyone sort of thinks it's the same thing, and the burden was on defense counsel, was it not to say, look, there are two things going on here.

[00:12:25] Speaker 03:
And he wasn't asked about that one, and he didn't when the witness came on.

[00:12:29] Speaker 03:
So I think isn't the real problem here that Mr. McCants dropped the ball on that second charge.

[00:12:34] Speaker 03:
I'm just not sure we've got a ruling from the district court conscious that there were two pieces of evidence at issue.

[00:12:40] Speaker 05:
Certainly, we do not have that.

[00:12:42] Speaker 05:
And I will concede that the record is not as clear as it might be.

[00:12:46] Speaker 05:
But you do have on the record a mention of the counterfeit documents as well as a mention of the bad check.

[00:12:51] Speaker 05:
As I noted, I believe the prosecutor intervened in an attempt to correct the defense counsel to say, no, it wasn't a counterfeit document.

[00:13:00] Speaker 05:
It was a bad check.

[00:13:02] Speaker 05:
And so perhaps the suggestion by the government is where the conversation was led astray.

[00:13:09] Speaker 03:
But again, the burden was on the defense counsel to come forward and show what the evidence is and why it should be admitted.

[00:13:16] Speaker 03:
And so.

[00:13:17] Speaker 05:
That's true.

[00:13:18] Speaker 05:
And on my reading of the record, Your Honor, where the conversation, two events.

[00:13:24] Speaker 05:
One, the government's correction about the bad check.

[00:13:27] Speaker 05:
Secondly, the indication of the rule, the erroneous rule requiring an admission or a conviction.

[00:13:36] Speaker 05:
would be what led the discussion away from where it ought to have been for the defendant.

[00:13:45] Speaker 04:
You said at one point, if the judge had ruled under 403, that would be quite a different case.

[00:13:54] Speaker 04:
And I guess my question is, isn't 403 sort of baked into 608?

[00:13:59] Speaker 05:
That's an interesting question, Your Honor.

[00:14:05] Speaker 05:
I would say not to the extent that Rule 403 requires the prejudices substantially outweigh the probative nature.

[00:14:16] Speaker 05:
Given Ms.

[00:14:17] Speaker 05:
O'Neill's defense that she did not intend to submit false documents, but that this was the work of Mr. Ramsey,

[00:14:27] Speaker 05:
evidence regarding Mr. Ramsey's lies about financial conduct go directly to the most important factor in favor of her defense.

[00:14:41] Speaker 05:
And the significance that I think is lost in the government's understanding of the prejudice is

[00:14:49] Speaker 05:
Yes, there was ample evidence of Mr. Ramsey's culpability in this case and that he had lied in the context of this case.

[00:14:58] Speaker 05:
Under 403, the real probative value for the defendant would be that here are other instances in the past where Mr. Ramsey had also seen fit to lie about financial matters.

[00:15:10] Speaker 05:
the counterfeit document, the bad check, and then with the invitation to Ms.

[00:15:14] Speaker 05:
Snowden to commit to mortgage fraud as well.

[00:15:18] Speaker 05:
So that, I would submit, is why under 403, it's even more important to look at the constellation of different misstatements, issues probative of this character for untruthfulness, that all went to undermining the prosecution's reliance on Mr. Ramsey in this case.

[00:15:41] Speaker 04:
All right.

[00:15:41] Speaker 05:
Thank you.

[00:15:41] Speaker 05:
Unless there's a question about the sentencing issue, I will sit down, having run a little bit of my time.

[00:15:46] Speaker 03:
Actually, I had one question about that.

[00:15:49] Speaker 03:
And that is, my understanding is your client's due to be released in less, or not your client, I'm sorry, your amicus, but that Ms.

[00:15:58] Speaker 03:
O'Neill is due to be released in less than three months.

[00:16:02] Speaker 05:
That's my understanding.

[00:16:04] Speaker 03:
And so I'm trying to,

[00:16:08] Speaker 03:
understand how, even if a new sentencing were to be required.

[00:16:16] Speaker 03:
What would it look like?

[00:16:18] Speaker 03:
What exactly is involved because she didn't challenge, noted her counsel in his sentencing memorandum challenge

[00:16:28] Speaker 03:
supervised release, or there was sort of a vague sentence about the amount of the offense, but nothing specific that I think would preserve a challenge to the restitution order, is there?

[00:16:42] Speaker 03:
So I'm trying to figure out, and presumably she doesn't want a new sentencing that might

[00:16:47] Speaker 03:
not depart from the sentencing guidelines?

[00:16:50] Speaker 05:
Presumably, no.

[00:16:51] Speaker 05:
I agree, Your Honor, that it would be forward-looking, the nature of the resendencing on what were not in substantial conditions of release that she faces going forward.

[00:17:02] Speaker 05:
Obviously, there's also an enormous restitution amount and forfeiture amount facing Miss O'Neill, probably the rest of her life.

[00:17:11] Speaker 05:
That was an issue under the loss amount.

[00:17:15] Speaker 05:
And as to your question about preservation, given the unorthodox nature of the sentencing, I'm not sure that Ms.

[00:17:24] Speaker 05:
O'Neill would necessarily be held to a strict standard of preservation where she resentenced, represented by public counsel.

[00:17:33] Speaker 03:
Well, that's exactly what happens when you choose to represent yourself, right?

[00:17:37] Speaker 05:
Of course, and our position is that Ms.

[00:17:39] Speaker 05:
O'Neill's decision to represent herself was not valid-knowing and intelligent from the start, and certainly the memorandum that Your Honor referenced was one that came in the night before sentencing, didn't

[00:17:53] Speaker 05:
really address the government's arguments and was preceded by the students.

[00:17:56] Speaker 03:
Well, no, it did.

[00:17:57] Speaker 03:
It actually did address a number of the arguments, and it was captioned as filed by, on her behalf.

[00:18:02] Speaker 03:
The only reference, the only discussion was to whether she would choose to represent herself at sentencing, for argument at sentencing, but there was no question that the sentencing memorandum was authorized and submitted with the authorization

[00:18:16] Speaker 03:
of Mrs. O'Neill by counsel, so she was certainly represented through the filing of the sentencing memorandum.

[00:18:23] Speaker 05:
She was still represented, though, counsel did make clear at the time that he was baffled how to proceed because of the instructions that he'd received from his counsel.

[00:18:33] Speaker 03:
I'm not sure why he was baffled how to proceed with respect to the filing, but I mean, it's captioned as Mrs. O'Neill by and through her attorney hereby submit this, and he says she would like to argue at sentencing.

[00:18:44] Speaker 03:
In his sensing the random so there wasn't any question about this And so I'm trying to figure out even almost As a practical matter was she constructively denied counsel

[00:19:00] Speaker 03:
at sentencing, since you had counsel through the filing of papers, is just the oral argument.

[00:19:07] Speaker 03:
What do we do if the only question were to be with the oral argument, which isn't even required?

[00:19:12] Speaker 03:
Certainly.

[00:19:12] Speaker 05:
That's a good question, Your Honor.

[00:19:14] Speaker 05:
And I would say two things.

[00:19:16] Speaker 05:
One, we can't know what would have been said at sentencing, which goes to the structural error that we have here.

[00:19:22] Speaker 05:
It's so difficult, for precisely the reasons you identified, to assess a sort of harmlessness analysis.

[00:19:28] Speaker 05:
in the deprivation of right to counsel context.

[00:19:32] Speaker 05:
And so I believe there's no reason to presume there wouldn't have been more effective advocacy on behalf of Ms.

[00:19:38] Speaker 05:
O'Neill in terms of citations to record evidence of the sort that the government offered at sentencing that one would expect to have seen through representation of counsel at sentencing.

[00:19:52] Speaker 05:
to your, the second part of your point is I believe implicitly sort of would the memorandum in support of the council memorandum in support of sentencing have sufficed and

[00:20:04] Speaker 05:
I would urge the court not to treat that as sort of full and competent representation right up to the moment where she's relieved of her counsel.

[00:20:17] Speaker 05:
Given that the memorandum did come in,

[00:20:22] Speaker 05:
with the headline that the council was baffled with how to proceed because of questions he had about how Ms.

[00:20:31] Speaker 05:
O'Neill would like to proceed.

[00:20:33] Speaker 05:
So I would not read into this memorandum with confidence that she had been fully and normally represented right up until the moment at which she's relieved of council sentencing.

[00:20:47] Speaker 04:
Thank you.

[00:20:58] Speaker 02:
Good morning, Your Honors.

[00:21:01] Speaker 02:
May it please the Court?

[00:21:02] Speaker 02:
Katherine Kelly on behalf of the United States.

[00:21:05] Speaker 02:
Turning back to, Your Honors, the first issue, the District Court here did not abuse this discretion in prohibiting the defense counsel to question Mr. Ramsey in front of the jury about a 2003 misdemeanor uttering charge and a 2006 allegation that he opened a bank account with a fraudulent check.

[00:21:22] Speaker 02:
There's no showing that the court's ruling was any misunderstanding of Rule 608B or that the court committed any error in its ruling.

[00:21:33] Speaker 04:
It does appear, though, that the prosecutor here perhaps misled the judge.

[00:21:39] Speaker 04:
It seems like they move immediately to a 609 kind of analysis.

[00:21:45] Speaker 02:
Actually, I believe the earlier part of the proceedings, it appeared that the prosecutor was somewhat mistaken.

[00:21:52] Speaker 02:
It appeared that she believed that you needed to have a conviction in order for it to come in.

[00:21:56] Speaker 02:
But the court very quickly clarified and questioned that on page 462 of the record.

[00:22:02] Speaker 02:
The court specifically asked, it said, it's not a conviction.

[00:22:05] Speaker 02:
But does it have to be a conviction?

[00:22:06] Speaker 02:
If it's a bad act, it goes to its credibility.

[00:22:09] Speaker 02:
The court was specifically indicating that it was aware of,

[00:22:14] Speaker 02:
the parameters that you could use a prior BAD Act under, in here it does fit within 608B.

[00:22:20] Speaker 02:
You don't have to have a conviction if you're gonna just question someone's credibility with it in this sort of situation.

[00:22:26] Speaker 02:
So despite any incorrect discussions at the beginning of the discussion with the parties in the court, it was clear that the court knew and understood the rules.

[00:22:39] Speaker 02:
and in addition to that the court did not rule in the end after hearing the voir dire from Mr. Ramsey that

[00:22:47] Speaker 02:
It couldn't come in.

[00:22:48] Speaker 02:
Those incidents couldn't come in unless there was a conviction.

[00:22:51] Speaker 03:
Well, do you agree that the district court misstated the proper law in making that ruling by requiring either a conviction or admission of culpability?

[00:23:00] Speaker 02:
I don't believe so, Your Honor.

[00:23:02] Speaker 02:
What the court said at page 467 was, well, and this is after hearing what Mr. Ramsey had to say about the incident, said, I mean, unless there's some

[00:23:11] Speaker 02:
counsel has some other information about these allegations in Maryland having been a criminal case and that there was some culpability or found that he admitted culpability based on what he said, I would have to conclude that this isn't an appropriate area to go into.

[00:23:24] Speaker 03:
Well that sounds like unless this was a criminal case with a conviction or admitted culpability, I'm letting it out.

[00:23:33] Speaker 03:
Is that an accurate statement of the law?

[00:23:36] Speaker 02:
It's a statement where the court is saying, and he continues and says, based upon what he said, referring to Mr. Ramsey, based on what's come out in the voir dire, there really isn't any there there.

[00:23:47] Speaker 02:
That was my reading of it, was that given what we've just heard in the voir dire.

[00:23:51] Speaker 03:
Based upon what he said comes right after, or he admitted culpability, which he didn't.

[00:23:56] Speaker 02:
He didn't admit culpability, but in the same vein, during the voir dire, Mr. Ramsey said, I don't know about

[00:24:04] Speaker 02:
this incident, the 2003 incident, I was never in front of a judge, I never received notice of anything, and that actually comports with what defense counsel, or what amicus counsel said.

[00:24:17] Speaker 03:
So you would agree that if the district court said there's no conviction and no admission of culpability so it can't come in, if that's what the district court has said.

[00:24:26] Speaker 03:
No conviction, no admission of culpability, it can't come in, that would be an erroneous rule of law.

[00:24:32] Speaker 02:
If that was all that the court said, then that sounds erroneous under 608B, because you don't need a conviction under 608B.

[00:24:39] Speaker 02:
However, what the court was really saying in whole here is that unless counsel has some more information about these allegations, based on what Mr. Ramsey said here,

[00:24:48] Speaker 02:
it's not an appropriate area to go into, which really does make sense under Rule 608B, because the point of that rule is it's supposed to be a situation where the jury is presented with information that bears upon the witness's character for truthfulness or untruthfulness.

[00:25:07] Speaker 02:
And here, given that Mr. Ramsey has stated in front of the court when he's questioned that he doesn't even have any information about these incidents,

[00:25:16] Speaker 03:
There's nothing for the jury to assess except his denials or his negative answers And that's just simply not very probative as to his credibility What we do about the fact that counsel tried to rain raised two distinct prior bad acts The other one being the more recent effort to fraudulently open a bank account and it was government counsel that

[00:25:42] Speaker 03:
Well, the judge was just talking about bad check here and sort of derailed that conversation.

[00:25:47] Speaker 03:
What do we do with that?

[00:25:48] Speaker 02:
There was there was no limits on what Mr. I'm sorry, Miss O'Neill's counsel was allowed to go into.

[00:25:54] Speaker 02:
He began speaking about opening a bank account with a bad check.

[00:26:00] Speaker 02:
And the government did bring in that there was an uttering charge earlier in 2003.

[00:26:04] Speaker 02:
But the court asked the question.

[00:26:07] Speaker 02:
So you didn't just bring in.

[00:26:08] Speaker 03:
I mean, you sort of said, that's what we're talking about here.

[00:26:10] Speaker 03:
And then that's the only thing anyone ever talked about after that.

[00:26:12] Speaker 03:
Isn't that quite problematic?

[00:26:15] Speaker 02:
I don't believe it was because the information was turned over by the government in plenty of time as required and the defense counsel was the first one to bring up the opening of a bank account with a bad check and he was never precluded from asking additional questions in regard to that.

[00:26:37] Speaker 02:
When the court asked initially about

[00:26:41] Speaker 02:
who are hearing Mr. Ramsey, he specifically asked about both.

[00:26:45] Speaker 02:
He said, has there been an allegation made against you regarding a bad check or opening a bank account with a bad check?

[00:26:50] Speaker 02:
And the witness said not to his knowledge.

[00:26:52] Speaker 02:
He hadn't been in front of a judge or received any citation that he knew of.

[00:26:56] Speaker 02:
And then the court opened up questioning to Mr. McCants, Ms.

[00:27:01] Speaker 02:
O'Neill's attorney after that.

[00:27:03] Speaker 02:
And even at the end of the day, this is all occurring, mind you, after Mr. Ramsey's testimony was finished and they had taken a few questions from the jury.

[00:27:11] Speaker 02:
on a different matter.

[00:27:13] Speaker 02:
And at that point, before Mr. Ramsey was allowed to leave, the court said, is there anything else?

[00:27:20] Speaker 02:
Do you want him to come back?

[00:27:21] Speaker 02:
If there's going to be further questioning, does he need to come back tomorrow?

[00:27:24] Speaker 02:
And Mr. McCants said, no, he's excused from our perspective.

[00:27:26] Speaker 02:
So he was given ample opportunity.

[00:27:29] Speaker 01:
So had he, had Mr. Ramsey, just to be very clear, when this happened, had the cross-examination of Mr. Ramsey already been completed?

[00:27:40] Speaker 02:
Yes, it had been.

[00:27:41] Speaker 02:
And the redirect examination, if I'm remembering correctly, Mr. Ramsey's testimony was entirely finished.

[00:27:47] Speaker 02:
And Judge Walton, at that point, was allowing the jury to write some questions.

[00:27:52] Speaker 02:
And they were going through them and deciding which ones to ask, which is very telling about how important is this matter to begin with.

[00:27:59] Speaker 02:
Because this is information Ms.

[00:28:01] Speaker 02:
O'Neill's attorney had well before trial.

[00:28:05] Speaker 02:
And even though he had used other

[00:28:08] Speaker 02:
Parts of the government's letters explaining prior acts by Mr. Ramsey.

[00:28:13] Speaker 02:
He didn't even use this in his cross examination of Mr. Ramsey.

[00:28:17] Speaker 01:
So this is really a very small point.

[00:28:26] Speaker 02:
Yes, the trial court has immense discretion in that regard, and given the voir dire that the court did with Mr. Ramsey did not believe that this was a fruitful area of cross-examination, it certainly didn't give any probative evidence about his truthfulness or untruthfulness character because he simply didn't know about the allegations.

[00:28:47] Speaker 02:
So there's really

[00:28:50] Speaker 02:
doesn't really add anything for the jury to hear denials or saying, I don't know about these incidents from Mr. Ramsey.

[00:28:57] Speaker 02:
This is a point in the trial where they've already had ample cross-examination of Mr. Ramsey.

[00:29:02] Speaker 02:
They've heard about his plea and his cooperation deal, that he used his own bank account to put on loan documents to make the straw buyers look more wealthy.

[00:29:10] Speaker 02:
He had brought Ms.

[00:29:13] Speaker 02:
Perez in as a straw buyer and it had come to the point where Ms.

[00:29:17] Speaker 02:
Perez's son didn't even speak to him anymore because he had basically ruined his mother's credit and lied to her, is how Mr. Ramsey put it.

[00:29:27] Speaker 02:
So this was a very minor point.

[00:29:30] Speaker 02:
Well after cross-examination was finished here and if anything it would be cumulative

[00:29:36] Speaker 02:
information about Mr. Ramsey's character for truthfulness or untruthfulness.

[00:29:42] Speaker 02:
The court didn't misunderstand the rules of evidence in doing so and simply defense counsel didn't push for any further voir dire on the 2006 incident and for all of those reasons we would say that this had no bearing on the outcome of the trial.

[00:30:01] Speaker 02:
If the court has any questions about the sentencing issue or anything else I'd be happy to answer.

[00:30:07] Speaker 02:
but otherwise we respectfully request that you affirm the judgment of this report.

[00:30:11] Speaker 02:
Thank you.

[00:30:12] Speaker 04:
Thank you.

[00:30:14] Speaker 04:
Mr. Beaton, you had used all of your time, but we'll give you back a minute for a rebuttal.

[00:30:23] Speaker 05:
Thank you.

[00:30:23] Speaker 05:
All my time and in some, I believe.

[00:30:25] Speaker 05:
I appreciate it.

[00:30:26] Speaker 05:
Just a quick point about the significance of Mr. Ramsey to the government's case.

[00:30:32] Speaker 05:
It's hard to cast this, I believe, as both cumulative and unimportant when you consider the interlocking nature of the evidence here and the fact that in the critical issue of trial of Ms.

[00:30:46] Speaker 05:
O'Neill's intent, there's only one witness cited in the government's papers, Mr. Ramsey, on which the government relies for its attempt to show harmlessness.

[00:30:56] Speaker 05:
So when you consider the impact of the jury on a denial about a bad check charge,

[00:31:03] Speaker 05:
denial about a counterfeit document, the denial, well, the testimony from Ms.

[00:31:09] Speaker 05:
Snowden about her being solicited to commit a similar mortgage fraud.

[00:31:15] Speaker 05:
I'm very close in time.

[00:31:16] Speaker 05:
It's hard to say that that would not impact the jury's consideration.

[00:31:22] Speaker 03:
I was curious as to why you relied on impeachment by contradiction rather than prior inconsistent statement.

[00:31:33] Speaker 05:
It's an interesting question because I believe in the government's papers there's a real emphasis on trying to require a very direct inconsistency, which frankly in the decision-sided, on either side, I don't see this court or other courts requiring a direct

[00:31:52] Speaker 05:
you know, two words lining up as yes and no.

[00:31:57] Speaker 03:
What I think is clear here and perhaps is the reason... Well, surely there's an open question on impeachment by contradiction, whether something has to be more direct, but as to prior inconsistent statements, I think it's... that argument isn't made.

[00:32:09] Speaker 03:
That there's room for a little more room leeway in determining inconsistency.

[00:32:15] Speaker 05:
So I'm just curious as to... In terms of prior and consistent statement.

[00:32:19] Speaker 05:
As to why defense counsel framed it as one, not the other, I'm not certain.

[00:32:24] Speaker 05:
Perhaps it was because there was this initial discussion about hearsay, whether this was going to be hearsay as a verbal act or solicitation.

[00:32:33] Speaker 05:
I think we've moved past that.

[00:32:35] Speaker 05:
But perhaps

[00:32:36] Speaker 05:
The locution of contradiction being more far removed from hearsay would have explained that.

[00:32:45] Speaker 05:
As to the difference here, whether it was cast as one or the other, I'm not sure it makes a tremendous difference given, as I mentioned, the centrality of Mr. Snowden's – I'm sorry, Mr. Ramsey's credibility.

[00:33:01] Speaker 03:
And you don't dispute that counsel waived acquiring consistent statement as a basis for admission.

[00:33:07] Speaker 03:
It's just a question of impeachment by contradiction.

[00:33:08] Speaker 05:
I don't know if it was waived, but that was not how the evidence was presented, ultimately.

[00:33:15] Speaker 05:
Thank you.

[00:33:16] Speaker 04:
Mr. Beaton, I know that you were appointed by the court to represent Ms.

[00:33:20] Speaker 04:
O'Neill, and the court thanks you for your assistance.