[00:00:02] Speaker 00: Oyez, oyez, oyez. [00:00:04] Speaker 00: All persons having business before the Honorable, the United States Court of Appeals for the District of Columbia Circuit are admonished to draw near and give their attention, for the Court is now sitting. [00:00:15] Speaker 00: That save the United States and this Honorable Court. [00:00:18] Speaker 00: Be seated, please. [00:00:21] Speaker 00: Case number 14-3089, United States of America versus Donnell Cruz, also known as Donnell C. Cruz, also known as Darnell C. Cruz Appellant. [00:00:32] Speaker 00: Mr. Hess for the Appellant, Mr. Coleman for the Appellant. [00:00:46] Speaker 04: Good morning, Your Honors, and may it please the Court. [00:00:48] Speaker 04: Darrell Hess on behalf of the Appellant, Donnell Cruz. [00:00:52] Speaker 04: Your honors, this court stated in United States v. Latham that it would be a rare case where a trial court's evidentiary ruling rose to the level of a constitutional violation. [00:01:03] Speaker 04: Your honors, it's a privilege to be with you this morning because this is such a rare case. [00:01:07] Speaker 04: Here, the district court abused its discretion when it decided, when it ruled, [00:01:14] Speaker 04: that it would strike the entire testimony of Mr. Cruz's one and only defense witness, Vickima Ensley, after Ms. [00:01:21] Speaker 04: Ensley invoked her Fifth Amendment right against self-incrimination during cross-examination. [00:01:25] Speaker 03: Our standard of review is plain error, correct? [00:01:29] Speaker 04: No, Your Honor, it is not. [00:01:30] Speaker 04: It is abuse of discretion. [00:01:31] Speaker 04: This Court applied the abuse of discretion standard in United States v. Wilson [00:01:36] Speaker 04: despite the government arguing for a plain air standard, and this court explicitly stated in United States v. Mahdi that when reviewing a trial court's determination of whether to exclude witness testimony, the standard to review is abuse of discretion. [00:01:50] Speaker 04: In addition, Your Honor, the sub... Can we pause over Wilson? [00:01:54] Speaker 05: So in Wilson, the reason that we reviewed it for abuse of discretion and not for plain air [00:02:00] Speaker 05: was that the district court statement indicated it understood that the nature of the objection was a confrontation clause. [00:02:07] Speaker 05: But there was an objection. [00:02:08] Speaker 05: In this case, there was no objection. [00:02:10] Speaker 05: That's the reason we review for plain error, not for abuse of discretion. [00:02:15] Speaker 04: I would disagree, Chief Judge Garland. [00:02:17] Speaker 04: Plain Air, it applies under federal 103. [00:02:21] Speaker 04: Wait, can we just pause? [00:02:22] Speaker 04: Do you agree with my reading of Wilson? [00:02:24] Speaker 04: I don't disagree with it, only because the government's brief in Wilson is filed under seal. [00:02:29] Speaker 04: So I don't actually know why the government argued for Plain Air. [00:02:32] Speaker 04: But I do agree. [00:02:33] Speaker 05: I'm looking at just the language of the court. [00:02:35] Speaker 05: I'm not looking at any secret briefs or anything. [00:02:37] Speaker 04: Sure. [00:02:38] Speaker 04: So I would agree with you that in Wilson, this court applied abusive discretion because it said it was apparent from the context. [00:02:44] Speaker 05: Right. [00:02:45] Speaker 04: that there was a confrontation clause. [00:02:47] Speaker 05: Objection, right. [00:02:48] Speaker 05: But there was no objection in this case. [00:02:49] Speaker 05: That's correct. [00:02:50] Speaker 05: So what case do you have for the proposition that we apply abuse of discretion where there was no objection? [00:02:57] Speaker 04: Your Honor, I'm aware of no case where plain air has been reviewed for the decision to strike a witness testimony. [00:03:06] Speaker 04: Abusive discretion has always been applied. [00:03:09] Speaker 04: I'm only aware of one case, Your Honor, where this has ever come up before. [00:03:13] Speaker 04: And this is the direct answer to Your Honor's question. [00:03:16] Speaker 04: And that's in State v. Schnell, a Missouri Court of Appeals case. [00:03:21] Speaker 04: To my knowledge, that is the only other published case where defense counsel failed to object [00:03:27] Speaker 04: to a trial court striking the witnesses. [00:03:31] Speaker 03: So what was the district judge supposed to do here given the statement from the witnesses council if she's called again to the stand she's going to assert her fifth based on my advice and she will not answer any further questions. [00:03:45] Speaker 03: The district court needed to inquire into what that statement meant, because that statement is... On its face, the statement meant she will not answer any further questions. [00:03:56] Speaker 04: But that statement comes right after an explanation that she has a valid Fifth Amendment [00:04:01] Speaker 04: ground for not answering questions that could be used in a later perjury indictment. [00:04:06] Speaker 04: And so the context here is that Ms. [00:04:09] Speaker 04: Ensley invoked the Fifth only after they started to impeach her and proffered to the court that this could be grounds for impeachment. [00:04:17] Speaker 03: But the the counsel then goes through the reasons and it's not just [00:04:25] Speaker 03: the one issue, but I'm more concerned about speaking with government counsel. [00:04:28] Speaker 03: It's my impression that this is not the only source of potential impeachment that they may have from Ms. [00:04:33] Speaker 03: Ensley. [00:04:34] Speaker 03: I think it's the government's position that what she said in the grand jury may not have been entirely accurate, as was her prior testimony at the trial, the previous trial. [00:04:43] Speaker 03: And so, and I guess more broadly, just looking at what the counsel said in describing that, the conclusion, and [00:04:52] Speaker 03: everyone here had been through this case. [00:04:55] Speaker 03: That's right, Your Honor, yes. [00:04:56] Speaker 03: A couple times. [00:04:58] Speaker 03: And it seemed like everyone was on the same page. [00:05:00] Speaker 03: Look, she's done as a witness because of the fifth. [00:05:03] Speaker 03: She's not going to be able to talk about anything. [00:05:06] Speaker 04: Well, Your Honor, that's reading a lot into that one statement. [00:05:09] Speaker 03: And admittedly, that is... It's the one statement plus the context of the whole discussion, which I've read. [00:05:15] Speaker 03: So it seems to me everyone knew what was going on. [00:05:18] Speaker 03: The judge said, [00:05:20] Speaker 03: I mean, there were a ton of telephone calls. [00:05:23] Speaker 03: I'm not surprised by her decision. [00:05:25] Speaker 03: Then he says, if I were the government, I would be concerned to use different language than that. [00:05:32] Speaker 03: That's right, Your Honor, yes. [00:05:34] Speaker 04: But the context here is that she may have just committed perjury. [00:05:37] Speaker 04: And so her direct testimony touched on a whole host of other topics that had nothing to do with whether she'd ever spoken with Antoine Crowder. [00:05:46] Speaker 02: Right, and the difficulty is that it seems as if [00:05:50] Speaker 02: the court and counsel for both sides and counsel for Ms. [00:05:55] Speaker 02: Ensley are operating on an assumption that there's impeachment material that goes to other aspects of her testimony. [00:06:04] Speaker 02: The problem is because there was no objection from Cruz's counsel at trial, there was no occasion to make a clearer record on that. [00:06:13] Speaker 02: And that's why it hampers our review and that's why we take the more deferential standard of review. [00:06:18] Speaker 02: If somebody had [00:06:19] Speaker 02: stepped up and said, whoa, the only thing we've seen is something that impeaches with respect to whether she ever received a phone call from Crowder. [00:06:29] Speaker 02: If that were an objection, then the district judge should have said, well, OK, what do you propose? [00:06:36] Speaker 02: And counsel for Cruz could have said, well, can we do something that strikes that but that respects the rest of the testimony? [00:06:42] Speaker 02: But we also have some suggestion that the Fifth Amendment issue is broader than that. [00:06:48] Speaker 02: What do we do with that? [00:06:49] Speaker 04: Except that, Your Honor, here, this court is not hindered in its review. [00:06:52] Speaker 04: This is not a situation like United States v. Thompson, which the government cited in its brief, where there was a failure by defense counsel to make an offer of proof. [00:07:00] Speaker 04: And so we simply had no idea what the substance of the excluded testimony was. [00:07:04] Speaker 04: Here we know exactly the substance of the excluded testimony because it is her entire direct testimony. [00:07:09] Speaker 02: But we don't know the scope. [00:07:11] Speaker 02: We don't know the extent to which any of that was [00:07:14] Speaker 02: was baseless or impeachable and put her in further jeopardy. [00:07:20] Speaker 04: That's exactly right, Your Honor, and we don't know because the district court did not apply the correct legal standard. [00:07:25] Speaker 04: That is the abuse of discretion. [00:07:27] Speaker 04: What the district court needed to do, and admittedly it would have been helped if defense counsel [00:07:32] Speaker 04: suggested this, but the district court needed, pursuant to Cardillo, which is the proper legal standard, to inquire precisely on what is the scope of the question she's now refusing to answer. [00:07:44] Speaker 04: That was never done. [00:07:45] Speaker 04: It was never done, certainly, because defense counsel never suggested it, but that doesn't cure the constitutional violation. [00:07:52] Speaker 05: The counsel said any further questions, so that does sound like any further questions. [00:08:00] Speaker 05: So there's the inquiry. [00:08:02] Speaker 05: There's the answer. [00:08:03] Speaker 05: My client is not going to answer any further questions. [00:08:07] Speaker 04: In the context of a speech talking about any further questions that would support perjury, and as we said in our reply brief, certainly if counsel would have been asked, well, is she invoking the fifth with respect to questions about topics that she discussed in her direct, [00:08:22] Speaker 04: she would have no valid Fifth Amendment privilege. [00:08:25] Speaker 04: So for instance, in her direct, she gave great detail about the events of that morning from her perspective. [00:08:32] Speaker 04: And in the first trial, she answered all of the cross-examination questions about the events of that morning. [00:08:36] Speaker 03: But the details, I guess, just to go to that, are we [00:08:43] Speaker 03: We're doing stuff before I dropped them off. [00:08:46] Speaker 03: I dropped them off. [00:08:47] Speaker 03: I went home. [00:08:48] Speaker 03: I put the keys on the table. [00:08:49] Speaker 03: I went up, took a nap. [00:08:51] Speaker 03: And then next thing I know, the cops were outside. [00:08:54] Speaker 03: I mean, not a lot of detail. [00:08:56] Speaker 04: What does the detail help you, I think? [00:08:59] Speaker 04: Sure. [00:08:59] Speaker 04: The one detail that I would add to that is, and I would never loan my keys to any of these individuals, and my keys and my car were stolen. [00:09:06] Speaker 04: And in fact, Mr. Cruz's counsel tried to make that statement in his closing argument, and the district court rightfully sustained an objection because that testimony [00:09:14] Speaker 05: That's the only part, the important part of it is that keys were stolen because after all it was her car. [00:09:19] Speaker 05: There's no doubt about that, right? [00:09:20] Speaker 04: There's no doubt that it was her car. [00:09:22] Speaker 05: Her car was driven to the hospital with two other, two people who participated in the robbery. [00:09:31] Speaker 05: That is correct. [00:09:32] Speaker 05: So how she got the keys doesn't make that much difference. [00:09:35] Speaker 05: I'm not understanding the importance of the fact that they went to the 7-Eleven and that they went to the gas station and got an alternator. [00:09:43] Speaker 05: Why is that relevant? [00:09:44] Speaker 04: I believe the defense counsel was trying to argue an disclosing argument. [00:09:48] Speaker 04: The relevance of that was to show that Mr. Cruz had no intent to commit a robbery that morning. [00:09:55] Speaker 05: So this is the getaway car. [00:09:57] Speaker 05: And they want to know, they want to make sure the alternator works and that there's gas in the getaway car. [00:10:03] Speaker 05: So how is this going to help you? [00:10:05] Speaker 05: I understand how they can help you. [00:10:06] Speaker 04: Well, I believe the alternator actually was correct. [00:10:08] Speaker 04: Alternator's for another car. [00:10:09] Speaker 04: Yeah, I see. [00:10:10] Speaker 04: But as to show, I think the defense counsel is trying to show Mr. Cruz's whereabouts that morning and show that it makes no sense. [00:10:17] Speaker 04: I mean, the closing argument is essentially no one would do this. [00:10:20] Speaker 03: No one would take... Why wouldn't you go to a 7-Eleven before a robbery? [00:10:23] Speaker 03: I don't understand that. [00:10:24] Speaker 04: No, I think the argument is, why would you take your fiance's car with personalized license plates and use that in a robbery? [00:10:31] Speaker 04: Was the argument. [00:10:32] Speaker 04: The other option was the Jaguar, right? [00:10:36] Speaker 04: Well, as Mr. Cruz's defense counsel points out, Anthony James had a car with paper tags. [00:10:41] Speaker 04: I mean, the argument that was not made this bluntly was no one would be this stupid. [00:10:46] Speaker 05: But they did use the fiancé's car with the tags, so she could have made the same argument. [00:10:52] Speaker 05: Why would Cruz have done that? [00:10:54] Speaker 05: Cruz wasn't involved. [00:10:55] Speaker 05: He would never have done that. [00:10:57] Speaker 05: That argument wasn't precluded. [00:10:58] Speaker 04: No, but the argument is certainly less convincing when you don't have the owner of that car's testimony, saying, this is what happened to my keys, this is what I normally did, and they were stolen. [00:11:09] Speaker 04: And that's the prejudice. [00:11:10] Speaker 04: If I may, I'd like to return to Your Honor's initial question about standard review. [00:11:15] Speaker 04: There are three reasons why abusive discretion should be applied here. [00:11:18] Speaker 02: In doing that, could you address Thompson? [00:11:20] Speaker 04: Absolutely, yes, Your Honor. [00:11:22] Speaker 04: So the first, as I said, is that every federal court that has considered whether it's appropriate to strike a witness's testimony has done so under the abusive discretion standard. [00:11:32] Speaker 04: I'm aware of no federal case that has done so under plain air. [00:11:36] Speaker 04: So that's the first. [00:11:37] Speaker 05: What about United States versus Ortiz? [00:11:40] Speaker 05: In Ortiz, we applied plain air where the district court failed to inquire to Espante whether the witness could properly assert the fifth. [00:11:48] Speaker 04: That's right, your honor. [00:11:49] Speaker 04: And I believe this goes to Thompson. [00:11:54] Speaker 04: So I don't remember if in Artis it was a rule 103 analysis, but I think it was. [00:11:58] Speaker 04: And in Thompson it explicitly was a federal rule of evidence 103 analysis. [00:12:03] Speaker 04: And what 103A2 says, relevant for Thompson and I believe relevant for Artis, is that [00:12:09] Speaker 04: If you're going to claim air based on a ruling excluding evidence, you have to make an offer of proof so that the district court knows the substance of that excluded evidence and, as this court said in Thompson, so that an appellate court is not hindered in its review because they could properly evaluate the prejudice or potential prejudice. [00:12:27] Speaker 04: Here, this court is not hindered. [00:12:29] Speaker 04: We know, apparent from the context, to sort of paraphrase this court's opinion from Wilson, exactly what the excluded testimony was, which was Vickima Ensley's direct testimony. [00:12:40] Speaker 04: So this court doesn't have to guess as to the substance of the excluded testimony, which is your more typical [00:12:45] Speaker 04: rule 103 situation and was the situation in Thompson. [00:12:48] Speaker 04: In Thompson, the defense counsel attempted to introduce, I believe it was hearsay statements, they were excluded and according to this court's opinion in Thompson, defense counsel just moved on. [00:12:57] Speaker 04: There was no proffer. [00:12:58] Speaker 02: I think the concern is not about the nature of the excluded testimony, that's one aspect, but the concern is about what is the breadth [00:13:08] Speaker 02: of the assertion of the fifth. [00:13:11] Speaker 02: And in Ortiz, we said, Ortiz's counsel never suggested there was a need for the district court to inquire whether the witness could properly assert a blanket fifth amendment privilege or only a more limited privilege. [00:13:25] Speaker 02: counsel acceded to the validity of the asserted blanket privilege. [00:13:30] Speaker 02: And so in that case, we applied plain error. [00:13:33] Speaker 02: And it seems that the similar thing happened here, that counsel acceded to an assertion of a blanket privilege and didn't say, wait, wait, there are all these aspects of her testimony that are unaffected by the risk of perjury. [00:13:47] Speaker 02: So that's where I think Ortiz does seem to be on all fours with your case. [00:13:51] Speaker 02: And I'm not sure I've heard from you how you distinguish it. [00:13:54] Speaker 04: I think the distinguishing fact here is here this was Mr. Cruz's one and only defense witness. [00:14:00] Speaker 04: This was his entire defense. [00:14:02] Speaker 04: And so as this court recognized in Lathern, although it's going to be rare, you could have a situation, and we would submit this is such a situation, where an evidentiary ruling rises to the level of a constitutional violation. [00:14:15] Speaker 04: Here Mr. Cruz did not have the ability to present any defense. [00:14:19] Speaker 04: This is on all fours with the Ninth Circuit's opinion from Negrete Gonzalez. [00:14:23] Speaker 04: In Negrete Gonzalez, the Ninth Circuit overturned a conviction because it found that the defendant's key witness had her entire testimony struck because she refused to answer questions on a collateral subject. [00:14:36] Speaker 02: Is that not error? [00:14:38] Speaker 02: I mean, if we disagree with you on the standard of review, are you still arguing that we should send it back? [00:14:44] Speaker 04: Yes, absolutely, Your Honor. [00:14:46] Speaker 04: So even if this court were to apply the Plain Air standard of review, we would submit, and we submit in our reply brief, that this does constitute Plain Air. [00:14:53] Speaker 04: So as this court knows, there are four requirements for Plain Air. [00:14:56] Speaker 04: The first is deviating from a legal rule. [00:14:59] Speaker 04: And here the legal rule is the Cardio standard. [00:15:01] Speaker 04: And the government, in its brief, doesn't even dispute that the Cardio standard is the proper standard for evaluating what to do when a witness invokes the Fifth Amendment process. [00:15:10] Speaker 03: It's not obvious. [00:15:10] Speaker 03: This is the third category of Cardio, though. [00:15:13] Speaker 04: Yes, I would agree with that, Your Honor, precisely because no inquiry was made, as our conversation earlier demonstrated. [00:15:21] Speaker 05: No, but you argue that anything that involves credibility is collateral. [00:15:26] Speaker 05: Yes. [00:15:27] Speaker 05: And that's not what Cardillo says. [00:15:28] Speaker 05: Cardillo says any attack on general credibility is collateral, but an attack on credibility regarding direct testimony is not. [00:15:38] Speaker 05: collateral, correct? [00:15:39] Speaker 04: That's right, Your Honor. [00:15:40] Speaker 05: And so this is a case in which the attack involves her direct testimony, not just her general credibility, but her credibility in this particular example that we already, the only one we really know about what their impeachment would have been was on whether or not she knew Danelle. [00:15:57] Speaker 05: I mean... Antoine. [00:15:59] Speaker 05: Antoine, sorry. [00:16:00] Speaker 04: Yeah. [00:16:01] Speaker 04: Respectfully, I would disagree, Your Honor. [00:16:02] Speaker 04: I would say this is an attack generally on her credibility, because although you're right, a portion of her direct testimony, she was asked four questions about whether she'd ever spoken with Antoine Crowder. [00:16:13] Speaker 04: So in that sense, Your Honor, you're right. [00:16:14] Speaker 04: It was a small portion of her direct testimony, but it was not [00:16:18] Speaker 04: the majority of our direct testimony, and it certainly would not be part of the government's case in chief. [00:16:22] Speaker 04: So other courts have defined what constitutes collateral, as the test is whether the adverse party would be able to prove it in their case in chief. [00:16:29] Speaker 04: If they could, it's direct, it's not collateral. [00:16:31] Speaker 04: If they couldn't, then it's a general attack on credibility. [00:16:35] Speaker 05: And I would submit- I'm not sure which case says that. [00:16:37] Speaker 05: I'm looking at the follow-up Second Circuit cases, Frank, or the one a follow-up on Cardillo. [00:16:45] Speaker 05: They all are going on to this question about whether it goes to the direct. [00:16:50] Speaker 05: Here, I thought the most important part of her direct was that she didn't know this guy, and so it's very doubtful that her boyfriend knew this guy. [00:16:58] Speaker 05: That was the point of that testimony. [00:17:01] Speaker 05: And the government has evidence that both she and her boyfriend knew the guy from the tape telephone conversation. [00:17:07] Speaker 05: That goes directly to her direct testimony. [00:17:11] Speaker 04: I believe, based on the proffer that the government made, they were just using it to impeach her in response to her question that she's never had a phone call from Anton Crowder. [00:17:20] Speaker 04: And her answer in the first trial was, yes, I had a phone call, but I've never spoken with him. [00:17:27] Speaker 04: And so whether she's ever received a phone call from Antoine Crowder is not direct either to her testimony or to the government's case in chief here. [00:17:36] Speaker 04: And Cardillo also says that the third Cardillo category could be a general attack on credibility, or it could be cumulative. [00:17:43] Speaker 04: And here, it's also cumulative. [00:17:45] Speaker 04: We know in the first trial that the government cross-examined Ms. [00:17:49] Speaker 04: Ensley in two other ways, or specifically, I should say, impeached her in two other ways. [00:17:53] Speaker 04: First, they asked her whether she knew Kirk Deans [00:17:57] Speaker 04: And when she said no, they impeached her with her grand jury testimony. [00:18:02] Speaker 04: And then second, they asked her whether she lived in Silver Spring. [00:18:05] Speaker 04: And when she said yes, they impeached her by playing a video of her police interview where she denied living in Silver Spring. [00:18:11] Speaker 04: So these are multiple ways the government had [00:18:14] Speaker 04: to impeach Ms. [00:18:15] Speaker 04: Ensley generally. [00:18:16] Speaker 04: And I would submit that that is what Ms. [00:18:18] Speaker 04: Ensley's attorney was representing when he started to say to the court, based on my conversations with the government, my concern here is there are multiple grounds for perjury against my client. [00:18:28] Speaker 04: So she's invoking the fifth. [00:18:30] Speaker 04: She's invoking the fifth with respect to these prior and consistent statements. [00:18:33] Speaker 04: But she was never asked a single question on cross-examination that went to her direct testimony other than, have you ever had a conversation with Anton Crowder? [00:18:43] Speaker 05: seems like that would have been the beginning of cross-examination on the question of whether she knew him. [00:18:47] Speaker 05: She said she didn't know him before. [00:18:50] Speaker 04: I would agree, Your Honor, and our point would simply be that Cardillo requires an inquiry at that point. [00:18:56] Speaker 04: That the heir was not asking counsel or Ms. [00:19:01] Speaker 04: Ensley, what do you mean by this statement that she won't answer any further questions? [00:19:05] Speaker 02: The district court is a little bit hampered in that, in that, you know, [00:19:09] Speaker 02: we have said don't require too much probing because that undermines the privilege itself. [00:19:18] Speaker 02: If you want the person to really spill out on the record what the risk is of [00:19:24] Speaker 02: of self-incrimination, you're defeating the privilege. [00:19:27] Speaker 02: So what exactly do you believe the district court was required to do in this situation to protect Mr. Cruz's confrontation rights while also respecting Ms. [00:19:40] Speaker 02: Ensley's Fifth Amendment rights? [00:19:42] Speaker 04: The district court was required to apply cardio and inquire into precisely whether she was refusing to answer questions that would go directly to her direct testimony, such as what they did that morning, whether Mr. Cruz lived with her, the various topics she addressed in her direct, or whether she was invoking the fifth [00:20:02] Speaker 04: on the much narrower topic of questions that could be used for a later perjuring indictment, which is I would submit the context of her attorney's statement saying she has a valid Fifth Amendment privilege here. [00:20:13] Speaker 04: That statement doesn't make any sense if applied much more broadly to everything she talked about in direct, because in fact, she wouldn't. [00:20:20] Speaker 04: Even if she had it to begin with, she would have waived it. [00:20:23] Speaker 04: So that's the inquiry that needed to happen. [00:20:25] Speaker 04: And admittedly, defense counsel didn't raise it. [00:20:27] Speaker 04: But nonetheless, we still have a district court applying the wrong legal standard. [00:20:31] Speaker 04: The district court never considered that, and instead simply threw up his hands and said, I can't parse through. [00:20:36] Speaker 04: It all has to go. [00:20:37] Speaker 04: I don't think his statement, I can't parse through, is supported by the record. [00:20:41] Speaker 04: At most, we have four questions on direct examination that went to whether she knew or ever spoke with Antoine Crowder. [00:20:49] Speaker 02: And it's your position that she did not waive the privilege by having testified at the grand jury and in the first trial? [00:20:59] Speaker 04: Yes, I mean, I believe that's right, although I don't think it's necessary to answer that question here. [00:21:06] Speaker 04: But yes, I think that's right, because it's been a while since I've reviewed the grand jury testimony. [00:21:10] Speaker 04: I don't think she was explicitly asked the exact same question. [00:21:14] Speaker 04: I don't think she was certainly played the recorded phone call. [00:21:18] Speaker 02: So she wasn't played a recorded phone call either in the grand jury or in the first trial, and that's why that issue went unrecognized and unaddressed in the first trial. [00:21:30] Speaker 04: That's correct. [00:21:31] Speaker 02: But she did testify in the first trial. [00:21:34] Speaker 04: Yes. [00:21:35] Speaker 02: I have not had a phone conversation with him. [00:21:37] Speaker 02: I don't know him. [00:21:38] Speaker 04: That's right. [00:21:39] Speaker 04: And so in the first trial, they impeached her on cross-examination by saying, well, then why is it that your phone number is in his phone? [00:21:47] Speaker 04: And they could have done the same thing here. [00:21:48] Speaker 04: And she probably had waived any privilege to that. [00:21:52] Speaker 04: But I don't think she waived a privilege with respect to answering questions about the recorded phone call that she had never previously. [00:21:58] Speaker 02: Well, no, but the issue is whether she falsely testified on the issue of whether she knew someone, not whether she falsely testified just with respect to the phone call, right? [00:22:12] Speaker 02: I mean, she made the same testimony in the first trial. [00:22:15] Speaker 02: I'm not sure how you could put the cat back in the bag. [00:22:18] Speaker 04: Certainly with respect to her direct and her cross on the first trial, I would agree with you that it's waived. [00:22:26] Speaker 04: I would submit that this recorded phone call is a new topic. [00:22:30] Speaker 04: And so her attorney invoked the privilege, and that was not questioned below. [00:22:36] Speaker 04: Nobody said, wait a minute, she's waived that privilege. [00:22:38] Speaker 04: She has to testify. [00:22:39] Speaker 04: And had it done so, I mean, you might be right, but that issue was never raised below. [00:22:44] Speaker 04: Instead, the district court said, well, then the whole thing has to go. [00:22:47] Speaker 04: And our position is that is the abuse of discretion. [00:22:50] Speaker 04: That is the legal error. [00:22:51] Speaker 04: Or if this court wants to apply the Plain Air standard, that is the Plain Air. [00:22:58] Speaker 04: Thank you. [00:23:00] Speaker 04: Your Honors, I see that I'm well out of time. [00:23:02] Speaker 04: There was a second issue on appeal. [00:23:03] Speaker 04: We are happy to rest on our arguments on that second issue. [00:23:06] Speaker 04: But if you would like to hear from me or ask any questions on me on that second issue, I'm happy to address them. [00:23:11] Speaker 02: My only question is, can you pinpoint for us how that prejudice, your client, [00:23:18] Speaker 02: because we already had in the record testimony that Dean had been shot in the face and Cruz was not the person who left Dean at the hospital. [00:23:29] Speaker 02: So it's just unclear what the incremental further prejudice is, one way or the other. [00:23:34] Speaker 02: The jury has heard that Cruz has put Dean in a car and gone elsewhere, Cruz himself went elsewhere and Dean had been shot in the face. [00:23:45] Speaker 04: The prejudice is because Cruz's entire defense, his explanation for the DNA on the gloves and for everything is that he was trying to be a good guy here. [00:23:54] Speaker 04: He was responding to gunshots out of concern for his brother. [00:23:57] Speaker 04: He was trying to keep Dean from going back to the CBS to potentially cause more problems or hurt more people. [00:24:04] Speaker 04: He was trying to be a good guy. [00:24:06] Speaker 04: And that is less credible if you think that he left Kirk Deans to die. [00:24:11] Speaker 05: Why do we think anybody left him to die? [00:24:14] Speaker 05: testimony from Brennan is that the car drove up right to the emergency room as the nurse was coming out of the emergency room and the nurse then immediately got the person. [00:24:25] Speaker 05: I'm not sure how, where does the argument come from? [00:24:29] Speaker 04: But I'm not sure and I don't think Cruz's lawyer argued that this was all Cruz is doing. [00:24:36] Speaker 04: Cruz put him in the car and said take him to the hospital and then left. [00:24:39] Speaker 05: I don't understand why that would, I mean [00:24:45] Speaker 05: The argument that he was abandoned is obviously not true because he was taken to the hospital. [00:24:52] Speaker 05: So I don't understand how you can speculate that the jury would blame the person who didn't go in the car versus the person as long as the guy gets to the hospital. [00:25:01] Speaker 04: It is the argument that he was not abandoned and he was in good enough condition to go back to CVS and potentially do more harm. [00:25:07] Speaker 04: And saying he was gravely injured, I could see brain matter. [00:25:11] Speaker 04: Our position is undercuts both of those. [00:25:13] Speaker 05: Did the lawyer below for Cruz, he didn't make that argument, did he? [00:25:18] Speaker 05: He didn't make that argument to the judge with respect to the issue, did he? [00:25:24] Speaker 04: He moved from his trial and argued for prejudice. [00:25:26] Speaker 04: I don't think he articulated those. [00:25:27] Speaker 05: But the only prejudice argument was made by the other lawyer who had a drop and fall theory, which I don't understand, and neither did the district court. [00:25:35] Speaker 05: That's right, Your Honor. [00:25:36] Speaker 05: You're correct. [00:25:36] Speaker 05: OK. [00:25:38] Speaker 05: Further questions? [00:25:39] Speaker 04: Thank you very much, Your Honor. [00:25:51] Speaker 01: Good morning, may I please the court. [00:25:52] Speaker 01: My name is Nick Coleman and I represent the United States in this case. [00:25:55] Speaker 01: I'd like to begin by addressing the issue of Ms. [00:25:58] Speaker 01: Ensley's testimony. [00:26:00] Speaker 01: We do think that a plain error does apply here when the appellant made no objection to the district court's action in striking Ms. [00:26:07] Speaker 01: Ensley's testimony. [00:26:09] Speaker 01: beyond simply requesting that the 7-11 video come in, which the district court accommodated. [00:26:16] Speaker 01: Beyond that, he made no objection, did not ask for any inquiry to be made of Ms. [00:26:21] Speaker 01: Zensley, did not ask that the testimony be parsed, did not ask for any of these alternative remedies. [00:26:28] Speaker 01: And in that situation, not only is there no record on which this court can sort of try to do its own parsing of the testimony and determine [00:26:35] Speaker 01: whether or not some child for the testimony should have come in. [00:26:38] Speaker 01: But in addition, there's a strategic component for the defense involved in every one of the alternative procedures that they've suggested here, and the reason why is this. [00:26:48] Speaker 01: For example, if Ms. [00:26:50] Speaker 01: Ensley had been put back on the stand to invoke [00:26:54] Speaker 01: her Fifth Amendment privilege or to have basically to only testify to certain parts but then to have the district court instruct the jury that she had invoked her Fifth Amendment privilege and for them to draw whatever inferences they should. [00:27:06] Speaker 01: It was very clear that Appellant's counsel at trial did not want that. [00:27:10] Speaker 01: He was very clear he did not want the jury to be told anything about Ms. [00:27:14] Speaker 01: Ensley invoking the Fifth. [00:27:16] Speaker 01: And that's because, after all, that could have a disproportionate effect [00:27:19] Speaker 01: The jury might speculate as to why she's invoking her fifth. [00:27:23] Speaker 05: This is on a slightly different topic, though. [00:27:25] Speaker 05: What you're talking about are the three procedures that they suggested. [00:27:30] Speaker 05: Yes. [00:27:30] Speaker 05: But I thought what you were addressing was the judge could have asked [00:27:36] Speaker 05: are you not going to testify about this or you're not going to testify about this or you're not going to testify about this. [00:27:41] Speaker 05: Those are two different issues, aren't they? [00:27:42] Speaker 01: I think the fact that the court isn't asked to do that, and I think as this court has held in both Ortiz and in Thompson, in this kind of situation where there's no request for that kind of an inquiry to be made and no argument is being made, then the district court just isn't required to do that. [00:27:59] Speaker 05: And certainly the burden is then on... You think a district court's not required to do that even if [00:28:06] Speaker 05: The defense counsel had not said she's not going to answer any further questions. [00:28:12] Speaker 01: I'm not sure that, I mean, obviously that would be a different case, Your Honor. [00:28:15] Speaker 01: I mean, here where she, if she had only invoked her fifth, if counsel for Ms. [00:28:19] Speaker 01: Entley had said she's only invoking her Fifth Amendment privilege as to this call. [00:28:24] Speaker 01: nothing else, then that might well have invited further inquiry. [00:28:29] Speaker 01: Well, what is she going to answer questions about? [00:28:32] Speaker 01: And what does Mr. Cruz want to do about that? [00:28:37] Speaker 01: Because after all, it's not just that you get to refuse to answer questions and the jury never hears about that. [00:28:44] Speaker 01: What happens is the jury is going to be informed one way or another that she is declining to answer questions and that they can draw appropriate inferences from it. [00:28:54] Speaker 01: So again, it's not like the freebie. [00:28:57] Speaker 02: So to me the difference though between at least one difference, and I'm curious about your views about whether it makes a difference, between Thompson and Ortiz on one hand, in this case on the other, [00:29:09] Speaker 02: is in those cases, the assertion of the privilege had a logic that would support, without more, without further include, would support a blanket elimination of the testimony. [00:29:22] Speaker 02: Because the person was a co-defendant, or the very act of testifying and carried with it kind of logic that impute all the testimony. [00:29:33] Speaker 02: Here, it's quite different. [00:29:34] Speaker 02: The only thing we know [00:29:35] Speaker 02: is that apparently she received a phone call from Crowder. [00:29:41] Speaker 02: When I was reading the transcript, I thought she was going to say, oh, that, right, I forgot. [00:29:46] Speaker 02: I don't know him. [00:29:48] Speaker 02: Yeah, I relayed this thing from this person who didn't mean anything to me. [00:29:53] Speaker 02: you know, and that's not inconsistent with the record that we have. [00:29:57] Speaker 02: Maybe it's tangential, maybe there's a much bigger issue, but we don't know. [00:30:01] Speaker 02: So in this situation, where the assertion of the privilege sort of prima facie only seems to go to a limited aspect of her testimony, it doesn't seem inconsistent necessarily with Thompson and Ortiz to say, in this kind of situation, the district judge does need to probe [00:30:20] Speaker 02: what the basis is of the privilege. [00:30:23] Speaker 02: At least a little bit. [00:30:24] Speaker 01: Two points here. [00:30:25] Speaker 01: First, the Cruz's counsel did not ask that any inquiry be made or object to this assertion of blanket privilege. [00:30:39] Speaker 01: Ms. [00:30:39] Speaker 01: Ensley's counsel also did not indicate that she was only asserting a limited Fifth Amendment privilege. [00:30:45] Speaker 01: He said she's not going to answer any further questions, and then when she comes into the courtroom at that point, she tells the judge herself. [00:30:51] Speaker 01: I'm not going to answer any further questions on the advice of counsel. [00:30:53] Speaker 01: I do agree that the question of whether she could invoke her privilege as to everything at that point [00:31:03] Speaker 01: is a tricky one, but in part it's tricky because a parent never requested that any further inquiry be made. [00:31:11] Speaker 01: I do agree that the line between whether you're entitled to not answer questions because of the risk of perjury and whether you're entitled not to answer questions about new subjects [00:31:25] Speaker 01: such as the calls. [00:31:26] Speaker 01: And this wasn't the only call. [00:31:28] Speaker 01: I mean, as is very clear from the record, there were other calls with which the government was intending to cross her about, and she'd never been confronted with these calls during the first trial. [00:31:39] Speaker 01: Whether that then carried over to all the other subjects, you know, it is a difficult question to answer. [00:31:45] Speaker 01: But on this record, where there was no objection made, the Plain Error Standard does clearly apply. [00:31:52] Speaker 01: And I haven't heard Appellants Council here cite any case [00:31:56] Speaker 01: where plain error wasn't applied, where no objection was made, no request was made for further inquiry, where essentially the defense simply acquiesced. [00:32:06] Speaker 01: And in that situation, plain error does apply, and he simply has not shown plain error that would justify reversal here. [00:32:18] Speaker 02: The difficulty is that it appears that the district judge and Ensley's counsel were very concerned for Ensley. [00:32:26] Speaker 02: And our question is, what about the confrontation rights of the defendant? [00:32:34] Speaker 02: And one way of reading the transcript is that the district judge was so concerned to protect Ensley for the very same reason that Mr. Cruz wanted her on the witness stand. [00:32:47] Speaker 02: Here's a very educated person who has some gravitas, and it's associated with the defendant. [00:32:57] Speaker 02: Has the district judge done what is required to protect the confrontation rights in this situation where the logic of the initial assertion standing alone, you say there are other calls, you have no idea how much of her testimony those other calls might. [00:33:13] Speaker 02: Right. [00:33:14] Speaker 01: Again, though, in terms of whether this court believes that appellant's right to present the witness was violated here, appellant did not assert that right. [00:33:24] Speaker 02: We understand. [00:33:25] Speaker 01: He didn't do that. [00:33:26] Speaker 01: And what is very interesting is that when Ms. [00:33:30] Speaker 01: Ensley, when the district judge asked, you know, has she been consulted with counsel, Ms. [00:33:35] Speaker 01: Ensley initially says, I don't need to. [00:33:38] Speaker 01: And it was Appellant's own counsel who then said, I think she should consult with counsel. [00:33:44] Speaker 01: So again, Appellant's counsel did absolutely nothing in the trial court to try to assert Appellant's right to put Ms. [00:33:54] Speaker 01: Ensley on the stand and make sure that her testimony remained on the record beyond insisting that the 7-11 video come in. [00:34:02] Speaker 01: And that was left in. [00:34:03] Speaker 01: So I'm not really sure why the district judge was required to go beyond that and essentially almost step into the shoes of counsel and say, well, you know what, I'm concerned here. [00:34:15] Speaker 01: Maybe we should see if there are further chunks of her testimony that can be put in. [00:34:19] Speaker 01: Of course, I'm going to have to give an instruction to the jury about that. [00:34:21] Speaker 01: Again, these are all things that again brings us back to my initial point, which is [00:34:26] Speaker 01: All of the other solutions beyond striking for testimony were things that probably you wouldn't be able to do as a district judge without appellant's acquiescence. [00:34:37] Speaker 01: In other words, he's got to make the choice about whether he wants to pursue those. [00:34:40] Speaker 01: And the fact that he didn't even ask for that inquiry to be made shows it just wasn't that important to him, and at best, he gets plain error review here. [00:34:48] Speaker 02: Is there no situation in which she could testify on some subjects and not publicly on the stand? [00:34:56] Speaker 02: Take her fifth with respect to others. [00:34:57] Speaker 01: The exact procedure that one would follow, I haven't dealt with a case where that was done. [00:35:05] Speaker 01: My understanding is that even if she's not going to invoke the Fifth Amendment privilege sort of with that drama in front of the jury, you're still entitled, the government would still have been entitled to an instruction to the jury, even outside of presence, that she had refused to answer questions that otherwise would have been pertinent and irrelevant, and she had elected not to testify, and that they could draw whatever inferences from it. [00:35:27] Speaker 01: It's pretty clear from the record here that Appellant's counsel did not want any suggestion being made to the jury that something untoward had happened. [00:35:38] Speaker 01: I mean, that's why he didn't even want the district judge to say that it was unfortunate that her testimony had to be struck. [00:35:47] Speaker 01: And the one thing he definitely said [00:35:49] Speaker 01: we don't want to have happen, is to have her invoke her Fifth Amendment privilege. [00:35:53] Speaker 03: So it's... I mean, the defense counsel had gotten the testimony in without cross. [00:36:00] Speaker 03: Well, I mean... So in other words, even though it was, quote, struck, the jury had heard it. [00:36:07] Speaker 03: So the defense counsel is not in a terrible position at that point. [00:36:10] Speaker 01: Right. [00:36:10] Speaker 01: And I would urge this court, if it's interested, to look at the August 2013 cross-examination of Ms. [00:36:17] Speaker 01: Zendley at the first trial. [00:36:18] Speaker 01: I would say it was pretty extensive, and it did show that there were some pretty big holes in her testimony. [00:36:26] Speaker 01: In particular, she had no explanation, even when asked, for why she let out a parent short of his house, even though they were supposed to be driving to his house together. [00:36:36] Speaker 01: She had no explanation for that, which is a pretty big gap in your testimony. [00:36:41] Speaker 01: She admitted to things such as that even though she was waiting outside the courtroom during the trial, she openly admitted that members of Appellant's family had been telling her what was going on in the courtroom before she took the stand. [00:36:54] Speaker 01: In other words, [00:36:57] Speaker 01: Appellant's counsel would have been well aware that the cross-examination of her was going to be extensive and it might be quite effective. [00:37:05] Speaker 01: So, again, whether this, I think, goes to, you know, even if we assume the jury did follow its instructions and disregard the direct testimony entirely. [00:37:14] Speaker 01: This does go to the question of whether or not, for example, he would have wanted this testimony to be read in from the first trial. [00:37:22] Speaker 01: All of these were strategic decisions about how to handle Ms. [00:37:25] Speaker 01: Ensley's testimony. [00:37:26] Speaker 01: And in the absence of an objection or a request for some different procedure to be followed, at best, he can get plain error. [00:37:32] Speaker 01: And that can't be shown on this record, we submit. [00:37:36] Speaker 01: I do, you know, and again, I think, you know, if you look, getting back to the question of what, whether he could even show prejudice, Ms. [00:37:44] Speaker 01: Anzley's testimony simply didn't establish that much for his defense. [00:37:49] Speaker 01: She did not provide him with an alibi. [00:37:51] Speaker 01: That was very explicit because she admitted that she let him out for no reason, short of his house, and the next, you know, well before the robbery, or the attempted robbery, and she doesn't see him again until he's being arrested by the police later. [00:38:04] Speaker 01: Beyond that, the one thing that she did dispute was whether or not she gave the keys angrily to the co-conspirators or whether they somehow were snuck out of her house, although even there she doesn't testify that she heard anybody take them from downstairs. [00:38:21] Speaker 01: So on that record, we submit that even if there had been plain error, a felon could not show the kind of substantial prejudice or miscarriage of justice that would justify reversal. [00:38:32] Speaker 02: Can you fill us in at all? [00:38:34] Speaker 02: on what happened with Dean between when the car pulled away from the CBS and when it arrived at the hospital. [00:38:45] Speaker 02: It's very confusing. [00:38:46] Speaker 01: Right. [00:38:47] Speaker 01: My understanding, I think this may have been conveyed during some pretrial conferences to this report. [00:38:52] Speaker 01: The government does not know how precisely Mr. Dean sustained that fatal gunshot wound. [00:38:58] Speaker 01: Between the time it was not delivered by Mr. Whitaker, that was simply a gunshot to his cheek. [00:39:04] Speaker 01: How the fatal gunshot came to be delivered to him is simply unknown. [00:39:11] Speaker 01: Obviously, it occurred during a very short window of time between when Mr. Crowder and Mr. Dean drive off and when they arrive at the hospital. [00:39:22] Speaker 01: We simply don't know. [00:39:23] Speaker 02: That's not something for which Mr. Crowder is being prosecuted or? [00:39:27] Speaker 01: Not that I'm aware of, no. [00:39:29] Speaker 01: We simply don't have that information as to how he came to be shot. [00:39:34] Speaker 01: So, you know, again, that was part of the reason why it was, you know, the parties made an effort not to try to bring that up during the trial, because again, it wasn't directly connected to this offense, or at least not in the sense of being delivered during the offense. [00:39:51] Speaker 01: And because it's unknown how or why he was shot, [00:39:55] Speaker 01: We simply don't have that kind of knowledge. [00:39:57] Speaker 01: We do submit that, you know, the idea that there was some sort of substantial prejudice here to appellant we think is just not tenable because, you know, at best, you know, it would just show that he was hurt worse [00:40:11] Speaker 01: than Mr. Crowder and Appellant thought when they had Mr. Crowder driving to the hospital. [00:40:17] Speaker 01: But he was taken directly to the hospital, and the government's evidence was that we had photographs of him being caught, Mr. Crowder being caught running red lights and speeding on the way. [00:40:26] Speaker 01: So it's not like he took his time. [00:40:27] Speaker 02: And the last Mr. Cruz saw him, he was trying to run back. [00:40:31] Speaker 01: Right, he was ambulatory. [00:40:33] Speaker 02: He was someone they were struggling with, and it seemed that he was being taken. [00:40:39] Speaker 01: Right. [00:40:39] Speaker 01: And, you know, that was the government's testimony. [00:40:43] Speaker 01: That was the government's case. [00:40:45] Speaker 01: I think that's one important thing to note. [00:40:47] Speaker 01: If Mr. Dean had been given a drop-and-fall gunshot, I mean, none of – most of the government's case wouldn't make a lot of sense because he wouldn't have been able to even leave the CBS. [00:40:58] Speaker 01: So I'm not – again, it's very hard to discern the prejudice here at Chief Calent [00:41:04] Speaker 01: At most, the President would have been to Mr. Crowder for this unexplained, fatal head wound. [00:41:11] Speaker 01: But really to appellant, I mean there was no, certainly the government did not dispute that Mr. Deane was fully ambulatory, able to talk, yell, argue and even try to go back to the scene and had to be convinced and pulled into the car. [00:41:25] Speaker 01: That was the government's evidence and certainly the government's case and the government never disputed that that was the case. [00:41:31] Speaker 01: If there are no further questions, we respectfully submit that the judgment of the district court should be affirmed. [00:41:35] Speaker 01: Thank you. [00:41:36] Speaker 05: Is there any time left? [00:41:38] Speaker 05: We'll give you another two minutes anyway. [00:41:42] Speaker 04: Thank you, Your Honor. [00:41:43] Speaker 04: I will be very brief. [00:41:45] Speaker 04: Your Honor, just two brief points on rebuttal. [00:41:49] Speaker 04: First, my colleague stated that the district court should not be required to step in the shoes of defense counsel in a situation where a witness invokes the amendment. [00:41:59] Speaker 04: My response to that, Your Honors, is don't forget we are talking about what is undoubtedly a drastic remedy, an extreme sanction. [00:42:05] Speaker 04: And every court that has looked at this, every court that has applied cardio, begins with that premise that the most extreme sanction here would be striking the entire direct testimony. [00:42:15] Speaker 03: But there are a lot of strategic reasons why that made sense, given the alternatives. [00:42:19] Speaker 03: Yes. [00:42:20] Speaker 03: It's not just defense counsel inattention here, it seems to me, from reading the record. [00:42:25] Speaker 03: It is a strategic judgment, given all the circumstances, that this is making the best of a bad situation, potentially. [00:42:33] Speaker 04: That may be, Your Honor. [00:42:34] Speaker 04: But on this record, the district court simply never inquired into that, never asked the question, are you truly trying to invoke the fifth? [00:42:42] Speaker 05: But you couldn't ask the question that Judge Kavanaugh is asking. [00:42:47] Speaker 05: Defense counsel, is it your strategy that you want to keep this testimony on direct because the jury will regard it regardless of my instruction not to and because it will avoid cross-examination by the government? [00:43:00] Speaker 05: That question could not have been asked. [00:43:03] Speaker 04: Yes, of course. [00:43:06] Speaker 04: My point, though, is that the district court needed to, and in fact was required to, and the heir here, he did not ask Ms. [00:43:13] Speaker 04: Ensley or Ms. [00:43:14] Speaker 04: Ensley's counsel your statement that you're invoking the fifth. [00:43:17] Speaker 04: Do you really mean? [00:43:18] Speaker 04: You're not going to answer any questions. [00:43:20] Speaker 04: And it did not inquire into whether the privilege was waived as to some subjects or simply it never applied that legal stand. [00:43:26] Speaker 05: One of the proposed procedures that you suggest in your brief is to require her to take the fifth on the stand, right? [00:43:34] Speaker 04: no your honor and if that is how our brief is read then I apologize it was simply to do the third cardio standard which is category excuse me which is to allow her to take the fifth and strike a portion of her testimony and and I would agree with my colleague I think procedurally that could have been done without putting her on the standard forcing her to invoke the fifth which we would agree defense counsel didn't want that to happen I mean that's that is true not only didn't they want it but [00:44:00] Speaker 04: on bonk we've instructed courts not to do that so that would have been reversible error yes that's right your honor and so my final point your honor says i see that i'm out of time is the government has argued that this can't be plain error because there's no prejudice and and i would simply submit that there was prejudice this was the defendant's only witness it's it's analogous to the ninth circuit's case of [00:44:21] Speaker 04: Negretti Gonzalez. [00:44:23] Speaker 04: Admittedly, that was reviewed under abuse of discretion. [00:44:25] Speaker 04: But there, the Ninth Circuit recognized that there was no other witness that could duplicate this witness's testimony. [00:44:30] Speaker 04: This was the key defense witness. [00:44:32] Speaker 04: Here, this was the only defense witness. [00:44:34] Speaker 04: And the same logic applies. [00:44:36] Speaker 04: No other witness could testify as to what happened in the sense of these keys and what happened to it. [00:44:41] Speaker 05: Thank you, Your Honor. [00:44:44] Speaker 05: Thank you. [00:44:44] Speaker 05: I'll take the matter under submission. [00:44:50] Speaker 05: Mr. Hess, I'm sorry. [00:44:51] Speaker 05: I was looking for Mr. Wayne. [00:44:53] Speaker 05: I see Mr. Wayne. [00:44:54] Speaker 05: I was looking for his name, though. [00:44:55] Speaker 05: You were appointed by the court to take this case, the two of you, and we're very grateful for your assistance. [00:45:00] Speaker 05: Also grateful for the assistance of the United States. [00:45:02] Speaker 04: Thank you all.