[00:00:03] Speaker 00: Case number 15-3045, United States of America versus Brianna Meadows' appellant. [00:00:08] Speaker 00: Mr. Wayne for the appellant, Ms. [00:00:10] Speaker 00: Kelly for the appellee. [00:00:18] Speaker 04: May it please the Court of Charles Wayne for the appellant, Brianna Meadows. [00:00:23] Speaker 04: The conviction below should be reversed because the district court erred in denying the motion to dismiss because the indictment was a product of prosecutorial vindictiveness. [00:00:35] Speaker 04: Now, the burden was on the appellant below to prove either actual vindictiveness or evidence that there was a realistic likelihood of vindictiveness that raised a presumption that the government had to rebut. [00:00:50] Speaker 04: And this court has recognized in the Meyer case and other cases that there's a human dynamic to the prosecutorial vindictiveness doctrine. [00:00:59] Speaker 04: That is, the prosecutor may have a personal stake and a motivation to engage in self-vindication. [00:01:05] Speaker 04: And that's what we have here. [00:01:08] Speaker 04: There are three circumstances under which prosecutorial vindictiveness can be found. [00:01:14] Speaker 04: And those three circumstances are, and they're to be considered together, disparate treatment of the defendant. [00:01:20] Speaker 04: whether a charging decision is made prior to getting all the facts, and whether the prosecution is a run-of-the-mill routine or involves a run-of-the-mill routine invocation of rights, usually in a plea bargain situation. [00:01:33] Speaker 04: Here, the district court made a fundamental, erroneous assumption that this was, in fact, a routine, run-of-the-mill plea negotiation. [00:01:44] Speaker 04: In such a case where there [00:01:45] Speaker 04: negotiations but no plea agreement that leads to more serious charges, that's the normal course of events. [00:01:52] Speaker 04: But that did not happen here. [00:01:54] Speaker 04: In fact, the district court ignored the long involved history between the U.S. [00:01:59] Speaker 04: Attorney's Office [00:02:00] Speaker 04: and the defendant, Ms. [00:02:02] Speaker 04: Meadows. [00:02:03] Speaker 04: And under any rational view of the evidence presented to the district judge below, it is clear that Ms. [00:02:09] Speaker 04: Meadows was a thorn in the side of the U.S. [00:02:12] Speaker 04: Attorney's Office. [00:02:13] Speaker 04: There was a six-year period where Ms. [00:02:16] Speaker 04: Meadows repeatedly asserted her Fifth Amendment rights to due process and against self-incrimination and her Sixth Amendment right to jury trial. [00:02:26] Speaker 04: She refused to cooperate in a homicide investigation, and the government charged her with obstruction of justice and being accessory after the fact. [00:02:36] Speaker 04: But the government never followed through. [00:02:37] Speaker 04: Even though they charged, they dismissed twice on the eve of trial. [00:02:42] Speaker 04: There was an allegation of bribery of a corrections officer in connection with smuggling contraband into the DC jail. [00:02:52] Speaker 04: Again, no charges were brought. [00:02:55] Speaker 04: And at the motions hearing, the district judge said to the prosecutor, who was the prosecutor, by the way, who was in charge of a very elaborate sting operation regarding the smuggling of contraband into the DC jail, and he was the prosecutor who prosecuted Ms. [00:03:12] Speaker 04: Meadows below for unlawfully obtaining unemployment benefits, the judge said, so why do you not charge her with that? [00:03:21] Speaker 04: Meaning obstruction of justice, bribery, smuggling of contraband. [00:03:25] Speaker 04: And the AUSA, Seth Waxman, said, we may, but never did. [00:03:30] Speaker 04: And the record's not clear whether the failure to prosecute for that was a result of either lack of evidence or inattention, inertia. [00:03:39] Speaker 04: But in a moment of candor, Mr. Waxman said to the court below that Ms. [00:03:45] Speaker 04: Meadows was, quote, the only one still hanging out there, and we can't walk away from that. [00:03:51] Speaker 04: Now, what happened was there were plea offers in this case. [00:03:54] Speaker 04: There were two. [00:03:55] Speaker 04: And clearly, the government felt that they were more than fair. [00:03:58] Speaker 04: One was a plea to a felony or the unemployment benefits. [00:04:04] Speaker 03: Can I interrupt you for a minute? [00:04:06] Speaker 03: Other than Meyer, do you know of any case in which the courts found vindictiveness? [00:04:13] Speaker 03: I'm sorry, found? [00:04:14] Speaker 03: Other than Meyer. [00:04:15] Speaker 03: found that there's been been because it was con yeah no no do you really think this is federal courts right federal federal court is this the most vindictive vindictive prosecutor in the history of federal prosecution or suggest no one has been smart enough to argue vindictiveness before uh... well i think as we said in our brief i don't think that [00:04:41] Speaker 04: Mr. Waxman is a candidate to be Inspector Javert, but there is no question. [00:04:46] Speaker 03: I thought you said he was Inspector Javert. [00:04:47] Speaker 04: It sounded to me. [00:04:48] Speaker 04: Well, there is no question that he had her in his sights. [00:04:54] Speaker 03: I know, but if there's only one case, and that case is one which has enormous First Amendment overtones having to do with protest and then an alleged effort to [00:05:07] Speaker 03: Bollocks up the courts by putting lots of cases into them. [00:05:10] Speaker 03: This is not that kind of case at all so if we're going to come up with a case of prosecutorial vindictiveness and Is this really the poster child? [00:05:21] Speaker 04: Well, I think you need as very specific Unusual set of facts we have that here. [00:05:28] Speaker 04: We have a situation where a [00:05:30] Speaker 04: the what she's being what she was prosecuted for was something that the U.S. [00:05:34] Speaker 04: Attorney's Office had declined to prosecute entirely during the previous four years. [00:05:39] Speaker 03: So is your view that they can't prosecute people who's assuming she's guilty of fourteen thousand dollars of theft from the United States, that those things just can't be prosecuted because they didn't prosecute them before? [00:05:52] Speaker 03: No. [00:05:52] Speaker 03: And is it your position if they think she's actually a murder, I appreciate that's not what this case is, but they can't prove it. [00:05:59] Speaker 03: If they were to think she were a murderer, but they couldn't find the evidence, could they not prosecute her for the $13,000 theft? [00:06:14] Speaker 04: not just because they think they they think she's a murder in fact we don't have that those numbers that you you make a point that they think she was guilty of other things which which they were unable to prove and therefore they prosecuted her for this that's not enough to cause vindictiveness isn't it is not what is it is enough her persistent assertion of her fifth amendment right to uh... uh... privilege and self-incrimination her fifth amendment right to process and her sixth amendment right to jury trial [00:06:44] Speaker 05: I would say that the doctrine is [00:07:03] Speaker 04: I mean, yes, by definition, I think that a defendant in this type of situation is making a nuisance of himself or herself as far as the U.S. [00:07:10] Speaker 04: Attorney's Office is concerned. [00:07:12] Speaker 04: And we say that she was a thorn in their side. [00:07:15] Speaker 04: But if – the reason why they're upset is because, okay, in their view, she's not playing ball. [00:07:22] Speaker 04: In her view, and should be the view of this court, she's exercising her constitutional rights. [00:07:27] Speaker 04: She doesn't have to cooperate. [00:07:28] Speaker 04: She doesn't have to help the prosecutor in the homicide investigation. [00:07:35] Speaker 03: Well, the government says that's not the reason they prosecuted her. [00:07:39] Speaker 03: You say it is. [00:07:40] Speaker 03: Even if that were a ground, what would we do next? [00:07:44] Speaker 03: The burden is on the defendant. [00:07:47] Speaker 03: You can't prove that this is the reason that they prosecuted her. [00:07:52] Speaker 04: That is true. [00:07:53] Speaker 04: So that's why there's a two-part test under Meyer and the other cases, which says that a defendant must show that it's more likely than not that there was prosecutorial. [00:08:05] Speaker 03: Right. [00:08:05] Speaker 03: And the judge said it wasn't more likely than that. [00:08:08] Speaker 03: And your view is that that is clearly erroneous. [00:08:10] Speaker 03: That's correct. [00:08:11] Speaker 03: On what ground can we say it's clearly erroneous [00:08:15] Speaker 03: not only that that wasn't the reason, but rather that it wasn't more likely than not that that was the reason. [00:08:21] Speaker 03: How do we go about doing that? [00:08:26] Speaker 04: I'm sorry, Your Honor, I'm not sure in what sense how do you go about doing that? [00:08:29] Speaker 03: Well, I mean, assume we have her saying, you saying, but without evidence other than circumstantial, that this is the reason that they prosecuted her because they didn't like her being a thorn in their side. [00:08:42] Speaker 03: And you have them saying that's not the reason. [00:08:44] Speaker 03: Correct. [00:08:45] Speaker 03: Okay, so now we have a, I hate the gender aspect of this, she said, he said, he said, she said, whatever. [00:08:52] Speaker 03: Normally, that's not enough to make, more likely than not, without sort of analysis of credibility and other kind of things, which we don't have here with respect to this. [00:09:00] Speaker 04: Well, I think that the district court's view of the evidence, and although there's a certain amount of discretion, obviously, that the court below has, she made a clearly erroneous ruling based on the state of the evidence. [00:09:17] Speaker 03: But if we were to accept [00:09:20] Speaker 03: your argument about the law, forget about the facts for a moment, and applied it to this case, we would still need to conclude more likely than not that the reason for the prosecution was vindictiveness, right? [00:09:33] Speaker 03: I don't see how we can do that without more evidence than you have given us. [00:09:39] Speaker 04: Well, I'm, of course, limited to what's below, number one. [00:09:42] Speaker 04: Yes, yes. [00:09:43] Speaker 04: And I don't think that there was a problem with the evidence below. [00:09:46] Speaker 04: I think that counsel for Ms. [00:09:49] Speaker 04: Meadows below put on significant evidence, including in the four years prior, the failure to prosecute was all handled administratively. [00:09:58] Speaker 04: The fact that the amount had already been either recouped and or repaid [00:10:03] Speaker 03: Well, apparently not until after the threat of prosecution had proceeded past dismissal of a motion to dismiss. [00:10:12] Speaker 04: Partially recoup prior to then, fully repaid after that, that's correct. [00:10:16] Speaker 04: There's another issue with regard to that, of course. [00:10:20] Speaker 04: I mean, here we have – talking about Inspector Javert – we have the same prosecutor who was in charge of the very large sting operation, and now he's in federal court prosecuting a crime – six felonies, by the way – six felonies of someone of a type of crime that they had declined to prosecute 41 separate times in the preceding four years. [00:10:47] Speaker 04: So why is that not enough to raise? [00:10:49] Speaker 03: So was it vindictive prosecution to prosecute Al Capone for income tax evasion when they couldn't prosecute him for all the things that they thought he did? [00:11:02] Speaker 03: And or that he got off every time they prosecuted him. [00:11:05] Speaker 03: And by the way, Al Capone did not confess, and he also asserted his Fifth Amendment rights. [00:11:12] Speaker 03: Would you say that that was a vindictive prosecution? [00:11:14] Speaker 03: No. [00:11:15] Speaker 03: What's the difference? [00:11:16] Speaker 04: Well, the difference here is there's a direct, I don't know the full state of the record there, of course, but the causal link here clearly is the assertion of her rights, the fact that the prosecutor is the same person who was in charge of the larger investigation. [00:11:33] Speaker 03: Are you saying that Capone didn't assert his rights to not testify in the grand jury? [00:11:37] Speaker 03: No, of course he did. [00:11:38] Speaker 03: Okay, and was there not Elliot Ness, the same agent in all of those cases? [00:11:45] Speaker 03: Well, at least according to the movie. [00:11:47] Speaker 03: According to the movie, yes. [00:11:49] Speaker 03: All right. [00:11:49] Speaker 03: So if we take the facts as they were presented in the movie, which may or may not be true, but it's good for hypothetical. [00:11:56] Speaker 03: Do you think it was a vindictive prosecution and Capone should have been released? [00:12:00] Speaker 03: No. [00:12:02] Speaker 03: What's your second argument? [00:12:05] Speaker 02: So I guess the argument here has to be, and I thought this is what the chief judge was getting at, for this court to write an opinion that says the district court clearly erred, we would have to say there was enough evidence here to raise a presumption [00:12:27] Speaker 02: And the unrebutted evidence was that the government had never prosecuted this employment benefits offense for an amount under $15,000. [00:12:42] Speaker 02: And although the prosecutor asserted they had, [00:12:54] Speaker 02: prosecutor never offered such evidence. [00:12:58] Speaker 02: So from the district court's point of view of balance of the evidence at that point, it was that she was charged with six felonies, even though the government was, I don't know if this is the right word, attaching her income tax refunds. [00:13:24] Speaker 02: to recover the amounts that she owed. [00:13:32] Speaker 02: And that the district court in evaluating the defense evidence erred because [00:13:47] Speaker 02: There was no explanation for pursuing charges against your client, even though everything, all the trouble she caused, the government was concluded in the sense that her boyfriend had been convicted. [00:14:08] Speaker 02: He had also pled, I think, to the contraband at the correctional facility. [00:14:16] Speaker 02: And this evidence came about only as a result of what I'll call a new investigation by the FBI into contraband into the facility, and they discovered she had falsely represented who she was in order to gain access. [00:14:34] Speaker 02: That's a hard paragraph to write, isn't it? [00:14:37] Speaker 02: And I'm not accepting the notion that, it's interesting, the chief judge and I had no conversation prior to this. [00:14:44] Speaker 02: argument about this case, but I did say to my law clerk, well, what about Al Capone? [00:14:52] Speaker 02: So that's the problem. [00:14:56] Speaker 02: If you were sitting in our shoes, much less the District Court's shoes, [00:15:01] Speaker 02: to write that paragraph. [00:15:02] Speaker 02: And I don't think we have to show that there's a long stream of prior cases. [00:15:07] Speaker 02: You know, cases have been reversed for a variety of reasons and maybe vindictive prosecution wasn't a necessary aspect of that reversal. [00:15:16] Speaker 04: Well, Judge Rogers, here's what I would say. [00:15:18] Speaker 04: So the district court found the evidence that you're talking about in terms of the failure to prosecute in the previous four years, found that to be compelling, that you worked yourself around to a rationale that said, well, the defendant here is not similarly situated to these other defendants who they didn't prosecute. [00:15:38] Speaker 04: So the basis for the lack of similar situation is the fact that the US Attorney's Office thought she was a bad person. [00:15:45] Speaker 04: That's it. [00:15:46] Speaker 02: But I thought your argument was she had no evidence of that. [00:15:49] Speaker 04: Correct. [00:15:49] Speaker 04: She has no evidence of that. [00:15:50] Speaker 04: That's why I say, that's why we said in our brief, the district court seemed to think that the prosecutor's discretion was similar to the district court's discretion in sentencing, which is you can consider all kinds of things. [00:16:03] Speaker 04: I mean, uncharged conduct and acquitted conduct. [00:16:05] Speaker 04: Our position is that the prosecutorial discretion is not so boundless that it's got to be circumscribed by the prosecutorial vindictiveness. [00:16:13] Speaker 03: I thought you said that [00:16:16] Speaker 03: It would have been okay to prosecute Al Capone for income tax evasion because they thought that he was a very bad man for other things that they couldn't prove and that they were going to prosecute him for income tax evasion because that was easier. [00:16:35] Speaker 03: Do you agree with that? [00:16:36] Speaker 03: Or do you think they had to put out of their mind the murders, [00:16:41] Speaker 03: the gang wars, et cetera, in deciding whether to prosecute him. [00:16:45] Speaker 04: They did not have to put it out of their mind, but people back then as now are routinely prosecuted for income tax evasion. [00:16:51] Speaker 04: They are not routinely prosecuted in this district. [00:16:54] Speaker 03: But it is okay to prosecute, it was okay to prosecute him for a crime based on their view that he was a bad man and had done other crimes. [00:17:06] Speaker 03: I mean, this would be an amazing limitation on prosecutorial discretion if your position was they could only prosecute him for the hardest crimes and not for the lesser crimes. [00:17:16] Speaker 03: You're not saying that, are you? [00:17:17] Speaker 04: I am not saying that. [00:17:18] Speaker 04: I'm saying the difference is that then as now people are prosecuted routinely for tax evasion in this district, they are not routinely prosecuted for receiving, for fraudulently receiving unemployment benefits. [00:17:30] Speaker 04: It's handled administratively. [00:17:31] Speaker 04: The only reason why it wasn't handled administratively with regard to her is because of the US Attorney's office view that she was a bad person. [00:17:40] Speaker 03: but i thought here so your argument is about bad person that's that alone is enough to create vindictiveness i thought your argument had to do with elic claims about the fifth amendment claims about not cooperating but your position now is that if you think if the government has evidence maybe not enough to prove that the person is a terribly bad person and they never asked the person to cooperate or anything else and they decide to to prosecute him for spitting on the sidewalk [00:18:08] Speaker 03: Your position is they can't do that because they don't prosecute other people for spitting on the sidewalk? [00:18:13] Speaker 04: That is not my position. [00:18:14] Speaker 04: And I would say that, okay, so one person's exercise of constitutional rights from the U.S. [00:18:21] Speaker 04: Attorney's office's view is a refusal to reasonably play ball and reasonably [00:18:26] Speaker 04: play ball meanings means cooperating in an investigation. [00:18:30] Speaker 04: And she steadfastly refused to do that. [00:18:32] Speaker 03: Now on the question about whether they'd ever prosecuted before, I understood the government to say that your, not yours, but the appellant's position below was that there had been four cases [00:18:45] Speaker 03: where the government had prosecuted. [00:18:48] Speaker 04: Is that right? [00:18:48] Speaker 04: That is true. [00:18:49] Speaker 04: Prior to the four-year period, so they had data, data was presented to the district judge about the four-year period preceding the indictment. [00:18:56] Speaker 04: Yeah. [00:18:56] Speaker 04: And there were 117 cases, 41 referred to the U.S. [00:19:00] Speaker 04: Attorney's Office, and none had been prosecuted in that four-year period. [00:19:03] Speaker 04: And when were the four prosecuted? [00:19:04] Speaker 04: Prior to the [00:19:06] Speaker 04: prior to the four-year period. [00:19:07] Speaker 03: So your position is not that the government never prosecutes, but that they hadn't prosecuted in the last four years? [00:19:12] Speaker 04: That is correct. [00:19:12] Speaker 04: They clearly, at some point, the U.S. [00:19:14] Speaker 04: Attorney's Office made a decision that, not to prosecute this, that this would be handled administratively. [00:19:20] Speaker 04: That's the only way to explain their refusal to prosecute any one of the 41 referrals. [00:19:25] Speaker 03: And once the government makes a decision for four years not to prosecute, if that's what they did, they can't redo it? [00:19:31] Speaker 03: That is not my position. [00:19:32] Speaker 02: So, please answer. [00:19:34] Speaker 04: That's not my position. [00:19:35] Speaker 04: I'm saying that they can't choose to prosecute for an improper purpose. [00:19:39] Speaker 04: And here, there was an improper purpose. [00:19:41] Speaker 02: So how do you reconcile, as it were, what I see as the Supreme Court's elaboration of this principle of vindictive prosecution [00:19:59] Speaker 02: from sort of the North Carolina versus Pierce up through Goodwin and Borkenheimer. [00:20:05] Speaker 02: And I read Borkenheimer to say pretty much everything is okay during plea negotiations. [00:20:12] Speaker 02: I mean if the government has evidence against due probable cause, [00:20:16] Speaker 02: whatever its motivations may be, it's really irrelevant. [00:20:21] Speaker 02: This is the plea bargaining process and the government can pursue you and the prosecutor has broad discretion here. [00:20:31] Speaker 02: And the fact that one prosecutor decides to go down this road of the unemployment benefits, it's really irrelevant. [00:20:39] Speaker 02: That's the system we have and that the defendant gets all his or her [00:20:46] Speaker 02: protections after being charged. [00:20:50] Speaker 02: And that was Myers. [00:20:51] Speaker 02: I mean, the exercise of constitutional rights came after the government had charged and they said they wanted a trial and then the government upped the ante. [00:21:01] Speaker 02: That's not the situation here at all, is it? [00:21:04] Speaker 04: It is not the situation in the sense of, and I agree with Your Honor's description of the Supreme Court precedent, that yes, it's tougher in a plea bargain situation to make this case agreed. [00:21:17] Speaker 04: Here, however, the difference is that the typical run-of-the-mill plea is plea guilty of this lesser charge, and if you don't, we will either charge you with something more serious or we will seek more time for the same charge. [00:21:33] Speaker 04: That's not what we have here. [00:21:34] Speaker 04: What we have here is a decision not to charge someone with the crimes that they believed that she committed, but rather to, because they were unhappy with the exercise of the Constitutional Rights, they go after what we say in the brief, is the low-hanging fruit. [00:21:51] Speaker 04: And the low-hanging fruit is something that they had clearly made a decision within at least four years prior to the indictment not to prosecute. [00:22:02] Speaker 02: Could we talk about the rebuttal closing argument? [00:22:10] Speaker 04: Sure. [00:22:13] Speaker 04: So that is, as we said in the brief, that was highly prejudicial, this argument that [00:22:20] Speaker 04: There was only a one in nearly 60 million chance of her defense being true. [00:22:25] Speaker 04: And there are two fundamental principles at work here. [00:22:28] Speaker 04: One is the prosecutor can't rely on facts not in evidence, and the prosecutor can't make an argument that would confuse the jury as to the burden of proof. [00:22:36] Speaker 02: So is your strongest argument here that while the government argues it grounded this argument [00:22:43] Speaker 02: in testimony of these two witnesses. [00:22:46] Speaker 02: In fact, those witnesses only address part of the relevant area, that we had no idea what other glitches there might have been in the department's computer system. [00:23:00] Speaker 02: So the one in six million is a false number? [00:23:06] Speaker 04: Correct. [00:23:06] Speaker 04: One in 60 million is a false number because the evidence was incomplete. [00:23:11] Speaker 04: number one, as we set forth in the brief, um, that there nobody testified there wasn't testimony about all the other problems that there might have been. [00:23:21] Speaker 04: There were only scattered testimony from the two witnesses, as your honor points out. [00:23:27] Speaker 04: And as we say, um, [00:23:31] Speaker 04: There was no testimony that every single problem that was identified would in fact be investigated. [00:23:37] Speaker 04: So that's the first thing. [00:23:38] Speaker 04: Yes, a lack of evidence. [00:23:39] Speaker 04: There was a failure of proof, number one. [00:23:41] Speaker 04: Number two, there was no expert testimony, which there had to be. [00:23:45] Speaker 04: And in that, we rely on the Ferrera decision from the Massachusetts Supreme Court, because once you're talking about this kind of mathematical calculation, you need an expert. [00:23:58] Speaker 04: And number one, and number two, if there is no expert, the defendant in this case was deprived of her opportunity to make a Daubert challenge. [00:24:06] Speaker 04: And there should have been expert testimony, and this type of argument needed expert testimony, and there was none. [00:24:13] Speaker 02: So your argument is that the case hung on what was her intent and therefore this evidence went to the heart of the case? [00:24:28] Speaker 04: That's correct. [00:24:28] Speaker 04: There were two competing views here. [00:24:31] Speaker 04: One was that the government said she intended to defraud the DC government. [00:24:37] Speaker 04: She said it was a mistake. [00:24:38] Speaker 04: And given these stark choices, the jury, clearly, there was a significant danger of jury confusion here, and it was prejudicial. [00:24:49] Speaker 04: And the probability argument erroneously equated proof beyond a reasonable doubt with a numerical probability of guilt, which, both of you. [00:24:59] Speaker 03: Unlike some of the cases that you cite, all state cases, [00:25:08] Speaker 03: Prosecutor didn't say and therefore there's guilt beyond a reasonable doubt didn't tie the two together. [00:25:13] Speaker 03: Is that right in those cases? [00:25:15] Speaker 03: prosecutor clearly did tie The prospect the probability analysis to be beyond reasonable doubt Yes, and I think think that happened here as well. [00:25:26] Speaker 03: Is there implicitly only implicitly is there an express I didn't see [00:25:31] Speaker 03: anywhere where the prosecutor said that. [00:25:35] Speaker 04: I would agree that the prosecutor didn't use the word. [00:25:38] Speaker 04: He was talking about her story has a 1 in 60 million chance of being true. [00:25:44] Speaker 04: He didn't say, therefore, he didn't follow that up with the next sentence. [00:25:51] Speaker 04: In the other case. [00:25:52] Speaker 04: In the other cases? [00:25:53] Speaker 04: No, not exactly. [00:25:54] Speaker 04: The other cases, no. [00:25:56] Speaker 04: Not precisely. [00:25:57] Speaker 04: No, not precisely what? [00:25:58] Speaker 04: Well, they were saying, okay, so the two, and the two other, the Ferrerra case had to do with eyewitness identification and using two, six person photo, or six photo, two different photo rays. [00:26:09] Speaker 03: I thought I recollected that the courts, that in that case, the prosecutor actually said, and therefore it's... Yeah, I believe that's true. [00:26:15] Speaker 04: Moral, I don't know if you said it precisely, but yes, effectively. [00:26:18] Speaker 03: I'm a need for an expert. [00:26:20] Speaker 03: We don't have a case like that, right? [00:26:22] Speaker 03: You do not. [00:26:23] Speaker 04: And I take it no federal court does, or you would have cited it? [00:26:27] Speaker 04: We would have. [00:26:28] Speaker 04: Not on the need for an expert, but I would say that the other two cases we did cite were not state cases, as Your Honor said, but there was a Fifth Circuit case and a CRIM and a case from the Navy Marine Court of Criminal Appeals, which obviously is a court martial, but nevertheless. [00:26:41] Speaker 03: The Fifth Circuit case said it has to be an expert for a... No, it did not. [00:26:45] Speaker 04: No, but it rejected the statistical probability argument in the context of whether there was diversity jurisdiction. [00:26:50] Speaker 04: It was a class action, and it had to do with... [00:26:52] Speaker 04: So class action had to do with where the class members resided. [00:26:57] Speaker 03: Not a criminal case. [00:26:57] Speaker 04: It was not a criminal case. [00:26:58] Speaker 03: That's correct. [00:26:59] Speaker 03: So I'm only on the question of whether the error can be plain. [00:27:02] Speaker 03: I think there was no objection. [00:27:04] Speaker 03: That is correct. [00:27:04] Speaker 03: So the question is whether the error can be plain when not only do we not have a case, but the Supreme Court doesn't have a case and no federal court has a case. [00:27:13] Speaker 03: That's sort of beyond our, we have a sort of a [00:27:17] Speaker 03: terms of leave a black letter that there has to be a case at least on the subject that governs us this couldn't be plain error. [00:27:26] Speaker 04: Well we did say in the brief we thought that this was a case of first impression on this argument and it is I believe it's a case of first impression with regard to every element of it including expert witnesses. [00:27:36] Speaker 03: So it can't be plain error. [00:27:37] Speaker 04: It could be error but it couldn't be plain error. [00:27:39] Speaker 02: Do you understand this circuit or the Supreme Court in Orlando [00:27:45] Speaker 02: to define plain error as one element has to be a prior binding precedent or a prior precedent? [00:27:56] Speaker 04: I had not understood that until Judge Garland just said so. [00:27:59] Speaker 04: Here's the answer. [00:28:02] Speaker 02: Sometimes things can be so gross. [00:28:06] Speaker 02: I'm just asking. [00:28:08] Speaker 02: I didn't read Justice O'Connor's opinion to say that. [00:28:10] Speaker 02: Maybe we said it, but I wasn't aware we had said it quite that bluntly. [00:28:14] Speaker 02: It's obviously a consideration and a factor. [00:28:17] Speaker 02: How would the judge know if it's an open question in this jurisdiction whether the prosecutor, in rebuttal closing argument, when the defendant has no opportunity to respond, hits on the key issue in the case based on evidence that's not in the record? [00:28:36] Speaker 02: I don't know. [00:28:38] Speaker 02: That's your argument, isn't it? [00:28:40] Speaker 03: That is our argument. [00:28:41] Speaker 03: Can you just, your footnote on, in your apply brief on page 12, this is again a little uncertain of your meaning, are you conceding that the six and 60 million figures were supported by the evidence? [00:28:56] Speaker 03: And it's the one that was not, that's the part at the end of that that I didn't, I want to be sure I understand. [00:29:03] Speaker 03: We are not conceding that. [00:29:04] Speaker 03: So what do you mean by saying thus it is not that the 6 or 60 million were not supported by evidence? [00:29:09] Speaker 03: It's the one that was not supported by the evidence. [00:29:14] Speaker 04: I mean, I read that as a concession. [00:29:15] Speaker 04: It certainly wasn't intended as such. [00:29:18] Speaker 04: The prosecutor was, this was an argument clearly off the top of his head. [00:29:23] Speaker 04: And he was talking about, he was estimating keystrokes. [00:29:27] Speaker 04: And he was multiplying by the number of keystrokes by the number of entries. [00:29:33] Speaker 04: So I don't think there was any mathematical precision to the 60 million figure. [00:29:40] Speaker 04: And we are not consenting that that's accurate. [00:29:42] Speaker 02: Excuse me. [00:29:42] Speaker 02: I read that, and maybe I misread it, to mean that what you were saying was that there might have been other problems. [00:29:49] Speaker 02: And the assumption of one in 60 million was that there was only one problem. [00:29:55] Speaker 04: Correct. [00:30:00] Speaker 04: That is true. [00:30:01] Speaker 04: And we argue that elsewhere. [00:30:04] Speaker 03: Okay, thank you. [00:30:08] Speaker 03: We'll hear from the government. [00:30:09] Speaker 03: Thank you. [00:30:23] Speaker 01: Morning, Your Honors. [00:30:23] Speaker 01: May it please the Court? [00:30:24] Speaker 01: Katherine Kelly on behalf of the United States. [00:30:27] Speaker 01: If I may just touch briefly on the argument about the government's rebuttal argument. [00:30:32] Speaker 01: The District Court did not plainly err in monitoring the government's rebuttal argument here. [00:30:37] Speaker 01: As the Court has said, there aren't any cases in the Federal Circuit's Superior Court or this Court that say that [00:30:45] Speaker 01: You have to either have an expert to do mathematics or to talk about mathematics in a closing or a rebuttal argument, and there aren't binding cases that say that the government or any attorney can't use mathematics or needs an expert to do so. [00:31:03] Speaker 02: No question that the Supreme Court precedent that you have to base your closing argument [00:31:08] Speaker 02: on the evidence in the case. [00:31:09] Speaker 01: That's correct. [00:31:10] Speaker 01: And that was absolutely done here, as we pointed out in our briefing. [00:31:13] Speaker 02: And you would agree that your two witnesses did not address the possibility of other problems with the computer system. [00:31:20] Speaker 02: Is that not correct? [00:31:21] Speaker 01: What they did address, Mr. Luparello, is that... That's a yes or no. [00:31:26] Speaker 01: I believe that they did, yes, Your Honor. [00:31:28] Speaker 02: How did they address other problems in the system? [00:31:30] Speaker 01: Director Luparello testified, which is at page SA95 of our appendix, that the type of error that the defense counsel was suggesting in this case would have been something that would show up in annual audits had it existed. [00:31:44] Speaker 02: I totally agree with you. [00:31:45] Speaker 02: The question is, were there other problems with the system? [00:31:50] Speaker 02: Because the argument to the jury was, this is one in 60 million. [00:31:54] Speaker 02: That's all I'm getting at. [00:31:56] Speaker 01: That's correct. [00:31:57] Speaker 01: The point is that there wasn't any evidence of any other errors in the system, and certainly errors like this. [00:32:03] Speaker 02: So how could the prosecutor argue on the basis of an assumption that there weren't? [00:32:10] Speaker 02: That's all I'm asking. [00:32:12] Speaker 01: The point that was being made by Mr. Nguyen and Mr. Luparello was that there was no evidence of this particular problem. [00:32:19] Speaker 01: The defense computer glitch argument related specifically to the answer to one question on her claim forms for unemployment benefits. [00:32:29] Speaker 02: See, the government argues to us this case is overwhelming. [00:32:32] Speaker 02: So I thought to myself, why would the prosecutor in rebuttal clothing risk a conviction? [00:32:41] Speaker 02: using an argument that's not grounded in the evidence. [00:32:46] Speaker 02: I don't know why you're pressing this point quite so. [00:32:49] Speaker 02: I totally agree as to what the witnesses did testify to, but that's not what the closing rebuttal argument was based on. [00:32:57] Speaker 02: You say in your brief grounded in the evidence, grounded and then a big leap. [00:33:03] Speaker 01: I don't believe it was a big leap, Your Honor. [00:33:05] Speaker 01: If anything, it was a reasonable inference, given the evidence that did come in at trial, that this was as Ms. [00:33:13] Speaker 01: knows was trying to argue was this is the only error that kept happening in my claims was this answer to this one question which we believe is ultimately where prosecutors going with his reference to one and as for the other numbers as the prosecutor was trying out during his argument where the numbers this where did that came from for instance the twenty thousand claims per week [00:33:34] Speaker 01: Multiplying that by 49 weeks worth of claims and ultimately coming up with the number of fields that someone would have to fill in in Making those claim forms. [00:33:45] Speaker 01: That's where he got those probabilities so if anything it was a reasonable inference at most and In any event there as we said there isn't legal binding authority saying that you have to ground this [00:33:57] Speaker 01: in expert testimony or that math arguments are not allowed. [00:34:01] Speaker 01: And certainly in this case, there wasn't any prejudice or serious effect on the fairness or integrity of the trial. [00:34:07] Speaker 03: Can I ask you? [00:34:08] Speaker 01: Certainly, Your Honor. [00:34:09] Speaker 03: Your position is, let's go with the 6 million rather than the 60 million. [00:34:16] Speaker 03: That because empirically, there was only one error in 6 million, the odds of [00:34:27] Speaker 03: it being a consequence of a computer error is one in six million. [00:34:32] Speaker 03: Is that your position? [00:34:34] Speaker 03: Is that where he comes down to? [00:34:35] Speaker 03: Right, what the prosecutor was arguing was essentially that there's a one in six million chance that... And that's because, empirically, if I give you every possible inference, you only found one error in six million, right? [00:34:52] Speaker 01: That's correct. [00:34:52] Speaker 03: The only error that appellants claiming here was... So is that really a statement of probability? [00:34:56] Speaker 03: That seems to me a statement of rate, not a statement at all about probability. [00:35:01] Speaker 03: If I have a bag and I pick out one red ball or I roll a dice and it comes up six, one out of 100 times, are you saying the probability is one out of 100 times? [00:35:18] Speaker 03: We know that's not how you calculate probability for the roll of a dice. [00:35:23] Speaker 01: That's correct. [00:35:24] Speaker 03: So the prosecutor is completely wrong with respect to the argument that the odds, that the probabilities are one in six million because the empirical consequence as observed was one in six million. [00:35:37] Speaker 03: Isn't that right? [00:35:38] Speaker 03: Isn't the prosecutor completely wrong in saying that this is a probability question? [00:35:43] Speaker 01: I think what he was trying to do was just state it in terms that a jury would understand, and whether or not he's absolutely mathematically correct is probably another question. [00:35:53] Speaker 03: You agree that now that we think about this, that the way of deciding the probability, you have to know something about how the computer works, not about what the results are. [00:36:06] Speaker 03: The fact that even if we completely agree with you that it only happened once in six million times, he could have said, well, it only happened once in six million times. [00:36:15] Speaker 03: But he couldn't say the probability was one in six million. [00:36:19] Speaker 03: Could he? [00:36:20] Speaker 01: So I think perhaps Your Honor is correct in saying that it's a rate rather than a probability. [00:36:26] Speaker 01: But I think ultimately the point that the prosecutor was making, which he did state specifically, was that he was using these numbers to show that the likelihood of [00:36:39] Speaker 01: this type of computer glitch the defendant was claiming, having taken place, the chances of that occurring were astronomical. [00:36:46] Speaker 01: He was saying that he was speaking broadly and he was using these numbers to show that it just wasn't reality. [00:36:54] Speaker 01: So his point is still well taken even if he's not exactly using [00:37:01] Speaker 01: mathematical terms correctly and so forth as obviously this was rebuttal argument and wasn't something that had been clearly thought out. [00:37:10] Speaker 01: And that's the other problem. [00:37:11] Speaker 02: There's no chance for the defendant to respond. [00:37:15] Speaker 01: Well ultimately all the really the defendant... No, I mean it's a gotcha argument. [00:37:20] Speaker 01: It's an argument that was very similar to the argument that was made in closing, which is that there's really just no chance that what Ms. [00:37:28] Speaker 01: Meadows is saying about this computer glitch is correct. [00:37:31] Speaker 01: It's a comment on her credibility. [00:37:34] Speaker 01: It wasn't a comment on proof beyond a reasonable doubt. [00:37:37] Speaker 01: It wasn't equating those statistics to proof beyond a reasonable doubt. [00:37:41] Speaker 01: It was really just taking the closing. [00:37:43] Speaker 02: So if it's a comment on her credibility, that makes it worse, doesn't it, as far as error is concerned? [00:37:47] Speaker 01: No, I don't believe so. [00:37:49] Speaker 01: And any time you have a defendant putting on a defense, your question credibility witnesses very often in a case. [00:37:56] Speaker 01: That is not a comment to say that the government's burden of proof is lessened in any way or to say that the prosecutor here never made any attempt to say anything along the lines of the numbers that I've just stated to you show that the government has proven its case beyond a reasonable doubt. [00:38:12] Speaker 01: That's what's going on. [00:38:13] Speaker 02: You cannot accept the defense. [00:38:16] Speaker 02: It's crazy. [00:38:18] Speaker 01: It's one in 60 million. [00:38:21] Speaker 01: And you could say that with or without the numbers, regardless of whether the numbers were there. [00:38:25] Speaker 02: But with or without the numbers, because that's what the prosecutor chose to do on rebuttal argument. [00:38:31] Speaker 01: The prosecutor chose that to use the number, certainly. [00:38:34] Speaker 01: But again, even if the court was to find an error occurred, it's certainly not plain under the current law, which this court requires in Sumlin. [00:38:43] Speaker 02: And additionally, there was no- Do you read our cases to require? [00:38:47] Speaker 02: precedent on point? [00:38:50] Speaker 01: They don't necessarily require a precedent on point. [00:38:53] Speaker 01: But what Sumlin says is that the error needs to be clear under current law. [00:38:57] Speaker 01: And given the state of the law, given that there's no cases in this court, no cases that we know of in other federal courts or in the Supreme Court, it's certainly not clear under current law. [00:39:07] Speaker 01: The case from Massachusetts that the defense relies heavily on [00:39:11] Speaker 01: is not like this case at all. [00:39:14] Speaker 01: That was clearly a situation where the prosecutor was equating a mathematical argument with proof beyond a reasonable doubt, and it was under very different facts. [00:39:23] Speaker 02: Any case is going to be factually distinguishable. [00:39:26] Speaker 02: It's the question of law that was decided by the Supreme Judicial Court of Massachusetts that the appellant is relying on. [00:39:34] Speaker 01: One of the most important factors that the court looked at in that case in Massachusetts was the fact that the prosecutor had made a comment on the reasonable doubt standard. [00:39:46] Speaker 01: No question about it. [00:39:46] Speaker 02: The holding was, if you're going to make these mathematical arguments, you need an expert. [00:39:51] Speaker 01: And that's the holding based on Massachusetts law. [00:39:54] Speaker 02: That's right. [00:39:55] Speaker 01: But that's not the law that is in play in this court. [00:39:58] Speaker 05: That's correct. [00:40:08] Speaker 01: There was no objection. [00:40:09] Speaker 01: That's why we're on the plain error review standard here. [00:40:13] Speaker 01: And I think it's important to note, too, that the jury instructions that were given by the court alleviated any concern of potential prejudice. [00:40:21] Speaker 01: And even what the prosecutor said himself was just that he's saying that this is just to show that the chances are astronomical that this computer glitch could have happened. [00:40:32] Speaker 01: The court, again, told the jury that the statements and the arguments of the attorneys are not evidence, that it could only consider the trial evidence, the witness testimony, the admitted exhibits, and the stipulations in its deliberations. [00:40:46] Speaker 01: If any reference to the evidence differed from the jury's recollection of the evidence, it was the jury's recollection that controlled, and it was, again, the jurors were the sole determiners of the witness's credibility. [00:40:57] Speaker 01: And particularly in this situation, where ultimately you have the district court at sentencing finding that Ms. [00:41:06] Speaker 01: Meadows perjured herself based on her computer error testimony, it's very highly unlikely that the jury, had it not heard numbers in the rebuttal argument, would have credited the defendant's computer glitch argument. [00:41:20] Speaker 02: a preponderance finding, isn't it, counsel? [00:41:23] Speaker 01: It is, but it does give some indication of how the witness's credibility came across. [00:41:26] Speaker 01: Your burden was beyond a reasonable doubt. [00:41:29] Speaker 01: It's not beyond a reasonable doubt, but it is certainly an indication of how the court who heard the entire trial was viewing the testimony about the computer glitch that Ms. [00:41:37] Speaker 01: Meadows presented. [00:41:38] Speaker 01: And given that, it's highly unlikely that the jury was swayed to disbelieve the defendant just based on calculations of numbers and the rebuttal argument. [00:41:49] Speaker 03: May I turn to the... This is of no importance, but I do want to see if I understand. [00:41:55] Speaker 03: When I used number one out of six, I thought, wasn't her testimony that she filled out not only the question about whether she was employed, but also how much she got? [00:42:07] Speaker 01: That was all in response to question number two. [00:42:09] Speaker 01: If you said, did you work this week, and you answered yes, then it prompted you to add in how much your wages were for that week. [00:42:17] Speaker 01: So it was almost a question 2A and 2B, if you will. [00:42:20] Speaker 03: The 60 million had something to do with keystrokes, right? [00:42:23] Speaker 01: Yes, because the prosecutor went on not to just say these are the six questions that were answered, but she also filled in different fields, including her name or social security number and so forth, and was adding up the number of letters and numbers, if you will, in adding that additional information to the six questions. [00:42:42] Speaker 01: And that's where he came up with the 60 million number. [00:42:45] Speaker 03: But what about all the keystrokes in filling out the amount of? [00:42:49] Speaker 01: That would have all been on the documents that were in evidence. [00:42:54] Speaker 01: The claim forms that were submitted by the government in evidence would have shown the information in the fields that she filled in in responding. [00:43:01] Speaker 03: Why don't those keystrokes count? [00:43:05] Speaker 01: I think that's what the court or the government was saying, that those do count. [00:43:08] Speaker 03: No, the ones on how much she earned. [00:43:11] Speaker 03: She said that she filled in. [00:43:15] Speaker 01: I guess those would too, yes. [00:43:17] Speaker 03: I'm not certain whether or not. [00:43:23] Speaker 03: Her argument is that they didn't count all of her other keystrokes. [00:43:27] Speaker 01: I guess given, I believe she was testifying that her salary was somewhere in the hundreds of dollars, so there's three other keystrokes that are missing from her answer. [00:43:35] Speaker 03: I'm not saying it's material, but I want to see if I understood what you're saying. [00:43:39] Speaker 01: I think your honor is correct about that, yes. [00:43:42] Speaker 01: Your honor, also the district court properly denied the motion to dismiss the end. [00:43:45] Speaker 01: I'm sorry, your honor. [00:43:46] Speaker 02: Lots of confusion. [00:43:49] Speaker 01: And I think that just goes to the fact that this is something that the prosecutor thought of off the cuff during, you know, in preparing this. [00:43:55] Speaker 02: I don't think it's off the cuff. [00:43:56] Speaker 02: I give the prosecutor a lot more credit than that. [00:44:00] Speaker 02: This is an issue that's been around for a long time. [00:44:05] Speaker 01: If I may turn to the motion to dismiss the indictment due to the alleged prosecutorial vindictiveness. [00:44:11] Speaker 01: What this court is looking at here is determining whether or not the district court committed clear error. [00:44:17] Speaker 01: And the court below only commits clear error if this court is left with the firm and definite conviction that a mistake has been committed. [00:44:25] Speaker 01: But what happened in this case is the district court [00:44:28] Speaker 01: clearly looked at the arguments presented by the defendant and the chronology of the defendant's history with the U.S. [00:44:37] Speaker 01: Attorney's Office, properly recognized under the Meyer decision that the mere chronology of the case was not enough, [00:44:46] Speaker 01: recognized that the defendant would need to show something more than that chronology, the fact that she was prosecuted after rejecting plea offers, and noted that in this case the defendant was saying the extra something is the fact that there are people that I am saying are similarly situated that are not being prosecuted for this crime. [00:45:08] Speaker 01: The court looked at that and found that [00:45:12] Speaker 01: there was a lack of evidence that the other people who were actually referred to the United States Attorney's Office were similarly situated to the defendant. [00:45:24] Speaker 01: And based on that, based on the additional facts that neither of the plea offers that were [00:45:34] Speaker 01: offered by the government were conditioned on her cooperation and that in fact the second plea offer was to reduce charges to two misdemeanor counts again showed a lack of vindictiveness. [00:45:46] Speaker 01: The court also appropriately accepted the objective evidence that the government put forward saying that it brought more severe charges because this was a case where Ms. [00:45:57] Speaker 01: Meadows had filed [00:45:59] Speaker 01: two annual unemployment claims, and then had gone 49 weeks in a row making individualized claims, filings for benefits. [00:46:10] Speaker 01: And that was all going on at the same time that she was allegedly involved in bringing contraband into the DC jail. [00:46:18] Speaker 01: It was because of all those circumstances that the prosecutor, having learned of the unemployment fraud through the separate concrete playground investigation [00:46:28] Speaker 01: at the correctional officers at the jail, chose to indict her for the six felony counts. [00:46:35] Speaker 01: And for all those reasons, there's no basis to find that the district court committed any clear error in determining that there was no prosecutorial vindictiveness in this case. [00:46:46] Speaker 05: I have a question about one argument made by the district court, and that is that by the time she was indicted, the government had won [00:46:57] Speaker 05: It's other cases. [00:47:00] Speaker 05: And so the court argues one cannot conclude that the charges were lodged in an effort to shield the defendant's exercise of her constitutional rights, assuming her constitutional rights are actually involved. [00:47:12] Speaker 05: But that seems a narrower notion of vindictiveness than what was claimed by the defendant here. [00:47:21] Speaker 05: because she seems to argue that the government was trying to punish her. [00:47:26] Speaker 05: And punishment can just look to either sending a warning to people generally that they won't get away with this sort of thing, or it could be genuine indictiveness. [00:47:40] Speaker 05: She's made us so mad and we want to put a paint on her. [00:47:45] Speaker 05: So that seems unresponsive to the defendant's argument. [00:47:50] Speaker 01: I think the point that the court was trying to make, and I believe she was citing the Maddox case in doing so, was that it was to express it was difficult to conclude that the government acted vindictively by charging the appellant with unemployment fraud when [00:48:09] Speaker 01: both the Petrovic murder case and any dealing she had to do with that and the targets of the concrete playground investigation had been convicted by the time the government even made the misdemeanor plea offer to her, let alone the charge. [00:48:24] Speaker 05: As a purely factual matter, I think it weakens, the sequence weakens her case. [00:48:30] Speaker 05: But it doesn't directly respond to the claim of intent to punish. [00:48:36] Speaker 01: Well, even if it's not a direct response, that was only one of the points the court was making. [00:48:42] Speaker 05: You would not defend that particular passage. [00:48:46] Speaker 01: I wouldn't want to be standing here hanging my hat on that being the crux of the decision. [00:48:52] Speaker 01: The Maddox case was quite different than the situation we have here. [00:48:57] Speaker 01: But that was just one of a number of points the court was making. [00:49:01] Speaker 01: As I've said before, it was the chronology, the fact that there wasn't a showing of similarly situated defendants and that there were these plea offers that went from a higher charge to a lower charge and it was only [00:49:17] Speaker 01: quite a while after that, that she was prosecuted here. [00:49:22] Speaker 01: And so the court found both that there was a failure to show a presumption of vindictiveness. [00:49:29] Speaker 01: The defense counsel asserted at the motions hearing that she was not going to pursue a [00:49:36] Speaker 01: actual vindictive misclaim. [00:49:37] Speaker 01: And then the court went on, despite that, to then say that the government indeed, if there was any possible presumption, had in fact overcome that presumption with objective evidence justifying the charging decisions here. [00:49:52] Speaker 01: And as the court is aware, the government showing is a minimal requirement there. [00:49:56] Speaker 01: It just has to be some objective evidence. [00:49:58] Speaker 03: Is there further questions from the panel? [00:50:01] Speaker 03: Thank you. [00:50:01] Speaker 01: Thank you, Your Honors. [00:50:03] Speaker 03: No time left, but we'll give you a couple extra minutes anyway. [00:50:16] Speaker 04: In response to Judge Williams' last point with regard to counsel, it's correct that the district judge was referring to the Maddox case, but [00:50:23] Speaker 04: This was an error that we argued in our brief, which is the district judge has the chronology wrong. [00:50:29] Speaker 04: And the point being that, and the Supreme Court cases talk about this as well, the idea is that it's not that the charging decision is intended to chill future exercise of constitutional rights. [00:50:42] Speaker 04: The idea is that the charging decision is designed, as Your Honor said, to punish the prior exercise of constitutional rights. [00:50:50] Speaker 04: So to the extent that [00:50:52] Speaker 04: the district judge got the chronology wrong, which we believe that she did with regard to the Maddox case. [00:50:59] Speaker 05: Correct. [00:51:06] Speaker 04: It's a better way to put it. [00:51:09] Speaker 04: And unless, yes, Your Honor. [00:51:12] Speaker 05: Is there a constitutional right not to cooperate with the government? [00:51:16] Speaker 05: Does the constitutional right not to be forced to incriminate yourself? [00:51:24] Speaker 05: Is there any case saying you have a constitutional right not to cooperate independently of that or other well-known rights? [00:51:33] Speaker 04: I don't know of one stating it in those terms, but we would say that the [00:51:37] Speaker 04: constitutional privilege against self-incrimination encompasses the decision not to cooperate. [00:51:46] Speaker 05: That's if they qualify, it could be use immunity and so forth. [00:51:52] Speaker 03: True. [00:51:52] Speaker 03: I think you would say that in the absence of use immunity, which they were not offering, it would be a violation of constitutional rights that compel cooperation. [00:52:01] Speaker 04: Correct. [00:52:03] Speaker 04: That's our position. [00:52:05] Speaker 04: And if the court has no further questions, we will rest on our brief. [00:52:11] Speaker 03: Thank you very much. [00:52:11] Speaker 03: We'll take the next case. [00:52:12] Speaker 03: We'll take this one under submission. [00:52:17] Speaker 00: Case number 14-1226 at L. Oh Harbor Freight Lines. [00:52:22] Speaker 03: Oh, yes, I'm sorry. [00:52:23] Speaker 03: I'm sorry. [00:52:23] Speaker 03: I'm sorry. [00:52:24] Speaker 03: I'm sorry. [00:52:24] Speaker 03: Just one moment. [00:52:25] Speaker 03: I forgot. [00:52:28] Speaker 03: Yes, Mr. Wayne, you were appointed by the court, and we are grateful for your help in this case.