[00:00:04] Speaker 02:
United States of America versus Noe Machado Arazo, also known as Gallo, also known as Noel Machado Arazo, appellate.

[00:00:16] Speaker 07:
Good morning.

[00:00:19] Speaker 05:
Good morning.

[00:00:20] Speaker 05:
May it please the court.

[00:00:22] Speaker 05:
I'm Kira Ann West, and along with my esteemed colleague, Mr. Thomas Corcoran, Jr., we represent Mr. Noe Machado Arazo.

[00:00:32] Speaker 05:
I will be arguing the cell tower evidence argument.

[00:00:39] Speaker 05:
The district judge abused his discretion by allowing the government's expert to testify to a specific range of coverage.

[00:00:48] Speaker 05:
This was exacerbated by the alteration of exhibits.

[00:00:54] Speaker 05:
Under Daubert and Kumotair,

[00:00:57] Speaker 05:
The district judge must act as a gatekeeper and may allow the introduction of an expert's opinion of a scientific or technical nature only if it rests upon a reliable methodology.

[00:01:11] Speaker 05:
Judge Lambert dared when he allowed Agent Magnuson to opine over a timely and cogent objection

[00:01:17] Speaker 05:
that he knew after reviewing cell tower data that specific cell phones were within certain distances of a fixed object or to another cellular phone.

[00:01:29] Speaker 05:
The agent did not and could not base that conclusion on any reliable methodology.

[00:01:35] Speaker 05:
Indeed, during in limiting motion arguments before the trial judge, pretrial judge, Judge Collier,

[00:01:41] Speaker 05:
And after we gave her notice that Magnuson's report didn't contain the methodology necessary to support scientific range estimates, the government admitted that their expert could not opine as to specific cell phone locations and would only testify about the tower to which the phone connected while in a broad sector of uncertain range.

[00:02:04] Speaker 09:
On what was the... Sorry, go ahead.

[00:02:06] Speaker 09:
What was the precise testimony given about

[00:02:11] Speaker 09:
ranges and distances that you believe was erroneous?

[00:02:17] Speaker 05:
This precise testimony, Your Honor, was that it would be a general location of where the quote-unquote general location of where the cell tower would be.

[00:02:29] Speaker 05:
and that's what Judge Collier based her decision on pre-trial in large part.

[00:02:37] Speaker 09:
I don't understand that part.

[00:02:38] Speaker 09:
You're saying that it was error for him to have testified about a specific range.

[00:02:44] Speaker 09:
I'm asking you to tell me exactly what evidence regarding a specific range or distance was given.

[00:02:53] Speaker 05:
I didn't think I understood your question initially.

[00:02:56] Speaker 05:
He said within

[00:02:58] Speaker 05:
exactly, quote, unquote, within one half mile, which our argument is that that is a specific distance that he should not have testified under Daubert.

[00:03:08] Speaker 09:
Within one half, that two phones were within one half mile of each other?

[00:03:12] Speaker 05:
Yes, sir.

[00:03:13] Speaker 05:
And what that signifies or portends is that that testimony was really giving a two circles where those phones intersected within a half a mile of each other.

[00:03:26] Speaker 05:
which is exactly what the government said he would not testify to.

[00:03:31] Speaker 09:
On cross-examination, didn't he essentially walk back that testimony?

[00:03:37] Speaker 05:
I can't say that he walked it back, but he did say it could be one mile, two miles, and then the most interesting thing he said was it could be up to 12 miles.

[00:03:48] Speaker 05:
And if the court would consider the sector is a 120-degree generally angle like this,

[00:03:56] Speaker 05:
And if you say 12 miles where that phone could be, that could be from here to say probably as far as Manassas.

[00:04:05] Speaker 09:
So how is the testimony prejudicial if he said at one point within a half mile and then one to two miles and then 12 miles and he wouldn't the jury just come away with that saying that he has no idea?

[00:04:20] Speaker 05:
That's not how the testimony came out.

[00:04:22] Speaker 05:
The testimony

[00:04:23] Speaker 05:
on cross-examination exactly as you just described, but then he then later testified that it would be within a half a mile.

[00:04:31] Speaker 05:
And that's what we say is prejudicial.

[00:04:35] Speaker 05:
And when you put that along

[00:04:38] Speaker 05:
with the government's exhibit 306, the mapping, and then the testimony of whose number belongs to whom, that's where we say the prejudice lies.

[00:04:48] Speaker 05:
And there was, I know where the court's going, there was a Seventh Circuit case, United States versus Hill, where the court said, well, this is what the person testified to, the agent.

[00:04:59] Speaker 05:
However, he saved himself, and that's what the language the court used, he saved himself by saying,

[00:05:05] Speaker 05:
Well, it could have been a range farther out than that.

[00:05:09] Speaker 05:
He didn't give a specific range, and so he acknowledged that that was the case.

[00:05:14] Speaker 05:
We don't have that type of, our contention is we don't have that type of acknowledgement.

[00:05:19] Speaker 05:
Because the government's evidentiary case against Mr. Machado was thin at best, the crux of the case against him turned on where his phone was

[00:05:27] Speaker 05:
at a certain time, on a certain date, and therefore any expert testimony in this regard should have been limited to the judge's pretrial ruling.

[00:05:36] Speaker 08:
Can I ask, it seems like there are at least a handful of cases recognizing the reliability of this kind of expert testimony.

[00:05:50] Speaker 08:
Yes, Your Honor.

[00:05:51] Speaker 08:
Jones and Davis, Davis is one with this particular witness.

[00:05:55] Speaker 08:
Yes, your honor.

[00:05:56] Speaker 08:
So is your your concern, as I understand it, is not with the general methodology of trying to figure out where a phone is by figuring out which cell towers it does or doesn't connect to.

[00:06:13] Speaker 05:
That's correct.

[00:06:14] Speaker 08:
Your quarrel is with the half mile.

[00:06:16] Speaker 05:
Right, which is what we say is a specific location.

[00:06:20] Speaker 08:
But why couldn't... I mean, is half a mile specific or general?

[00:06:25] Speaker 08:
I mean, who knows?

[00:06:25] Speaker 08:
The best case you have is one in which a court said it was unreliable to use this technology to place a phone within a particular building.

[00:06:36] Speaker 08:
This is not that.

[00:06:38] Speaker 08:
This is half a mile.

[00:06:39] Speaker 08:
One could think of that as general rather than specific within a range, which is what the government said they would do.

[00:06:46] Speaker 05:
And I understand that the court is talking about the Evans case in Illinois.

[00:06:53] Speaker 05:
But the difference there is, and you're right, Judge Huvel and Jones and Judge Collier relied a great deal in her Machado opinion on what Judge Huvel said in the Jones case.

[00:07:04] Speaker 05:
And the great thing about the Jones case that distinguishes it from this case is that Judge Huvel said,

[00:07:09] Speaker 05:
I think the jury can be confused by the way your map is drawn with that arc over the sector because that puts, and this is where I get what's the definition of general.

[00:07:20] Speaker 05:
You put that arc over there, then you have a mathematical

[00:07:25] Speaker 05:
figure of a general, of an area.

[00:07:28] Speaker 08:
You have the point where the cell tower is.

[00:07:31] Speaker 05:
Correct.

[00:07:31] Speaker 08:
And you have the angle reflecting, I forget what it's called, the sector.

[00:07:35] Speaker 05:
Yes, sir.

[00:07:36] Speaker 08:
120 degree.

[00:07:37] Speaker 08:
And you have the vector, the arrow sort of pointing towards that direction.

[00:07:42] Speaker 05:
Yes, sir.

[00:07:42] Speaker 08:
And seems like anyone looking at that would understand the vector doesn't go on forever, right?

[00:07:50] Speaker 08:
It's not 1,000 miles or 100 miles, right?

[00:07:54] Speaker 05:
Well, it could, but we don't have the methodology to show that in this case, which is part of our problem.

[00:08:00] Speaker 05:
And that was the problem in Jones, is that if you put that arc on there, then the agent's allowed to testify within that space, and that would then not be a general location, which is why Judge Heavell said, take that arc out of there.

[00:08:12] Speaker 08:
So my understanding is,

[00:08:16] Speaker 08:
In a remote area, the vector could go on, say, for 10 miles, right, if there are no other cell towers.

[00:08:26] Speaker 08:
So would you be making the same argument if you've got same disclosures and then the witness gets up and says, well, I think it's within 10 miles?

[00:08:38] Speaker 05:
Well, I would, and here's why.

[00:08:41] Speaker 08:
So the government can't put, it's not the point that half a mile is too precise, it's the point that they can't quantify the size of that vector at all?

[00:08:53] Speaker 05:
It's both.

[00:08:54] Speaker 05:
It is that half a mile is too precise because that clearly would be within that vector with an arc on the end.

[00:09:02] Speaker 05:
And the agent in this case, he didn't do the JDSU software, he didn't walk through, he didn't get any information from the cell tower companies whether what cell tower was working.

[00:09:13] Speaker 05:
So we have a map that has a bunch of cell towers on it, but we don't know which one was functioning and which one wasn't.

[00:09:18] Speaker 05:
We don't know the radio frequencies of those towers.

[00:09:20] Speaker 05:
There's all kinds of methodology that's missing in this case, and that's one of our arguments, is why we believe he should not have been able to testify within a half a mile.

[00:09:30] Speaker 05:
Besides the fact that he gave that, they told us pre-trial, we're not gonna do any specific, and told Judge Collier that.

[00:09:39] Speaker 05:
Then when it came to trial, they told Judge Lambert that they handed the two pages, they gave us mid-trial.

[00:09:44] Speaker 05:
I think we'd been in trial 10, 11 days.

[00:09:47] Speaker 05:
And it said one to two miles.

[00:09:49] Speaker 05:
And they said, well, Judge Collier has already ruled on that, which clearly she hadn't.

[00:09:53] Speaker 05:
She hadn't seen those two pages that said one to two miles.

[00:09:55] Speaker 05:
So that's where I get, or we get, the specific location would, even one to two miles would be a specific location.

[00:10:03] Speaker 07:
So let me ask you, how critical was this witness to the government's case against your client?

[00:10:10] Speaker 07:
It had cell phone records.

[00:10:13] Speaker 07:
It had other

[00:10:15] Speaker 07:
witnesses to testify?

[00:10:19] Speaker 05:
This witness was the most critical witness.

[00:10:22] Speaker 05:
Why?

[00:10:23] Speaker 05:
Because the two MS-13 members who were informants or cooperating co-defendants, Solorzano and Saravia, they were both impeached.

[00:10:34] Speaker 05:
heavily impeached.

[00:10:35] Speaker 05:
Saravia was impeached because he testified that our client committed the murder and that he called three times right during the time that he committed the murder.

[00:10:45] Speaker 05:
But the cell phone records show they never talked.

[00:10:48] Speaker 07:
What about the transcripts of the telephone calls?

[00:10:53] Speaker 05:
There was nothing in the transcripts of the telephone calls that talked about my client with regard to the murder at all.

[00:10:58] Speaker 05:
That's why

[00:10:59] Speaker 05:
This became so important in why we believe the government changed gears mid-trial because Solorzano was impeached on the phone numbers who belonged to who, Sorabia was impeached on having called him that night.

[00:11:12] Speaker 05:
So this was it.

[00:11:13] Speaker 05:
This was the only thing that the jury could believe.

[00:11:16] Speaker 05:
And I believe it was critical, and there's evidence of that, because the jury was out for 11 days.

[00:11:23] Speaker 05:
And I'm sure that they were struggling with, and why we say the alteration of the exhibit is so important, is because they didn't know, the jury couldn't keep track of how many numbers Matado had.

[00:11:36] Speaker 07:
So is your position then that, let's assume there was a violation of Rule 16.

[00:11:45] Speaker 07:
Let's assume that the supplemental submission was untimely.

[00:11:52] Speaker 07:
Let's assume that your pretrial motion not only alerted the district court to the problems.

[00:12:05] Speaker 07:
Why isn't the error harmless, even though you say this was the government's critical witness, given that the government gives you credit for extraordinary cross-examination, extraordinarily effective?

[00:12:22] Speaker 07:
cross-examination and, of course, closing argument.

[00:12:27] Speaker 05:
I think it can't be harmless error, Your Honor, because the jury by this time was so confused as to what a sector could be distance-wise, how many phones Mr. Machado had.

[00:12:41] Speaker 05:
And it's not harmless error because I think I'd understand the court's question if the prosecutor had not, in closing statements, said,

[00:12:51] Speaker 05:
Mr. Machado used more than one phone.

[00:12:54] Speaker 05:
He had several phones.

[00:12:55] Speaker 05:
And that was the critical issue in this exhibit 306 is what phone belonged to whom.

[00:13:03] Speaker 05:
And the agent couldn't testify to that.

[00:13:08] Speaker 05:
But the records could show that.

[00:13:11] Speaker 05:
And Solorzano and Sorabia could also testify to that.

[00:13:14] Speaker 05:
So we believe that the confusion was so great

[00:13:19] Speaker 05:
that it's not harmless there.

[00:13:21] Speaker 05:
And I see that my time has expired.

[00:13:33] Speaker 07:
So we'll hear from the government on this issue.

[00:13:35] Speaker 03:
I'm sorry.

[00:13:36] Speaker 07:
We will hear from the government on this issue.

[00:13:39] Speaker 04:
Good morning.

[00:13:40] Speaker 04:
May it please the court.

[00:13:41] Speaker 04:
Elizabeth Gabriel on behalf of the United States.

[00:13:43] Speaker 04:
The district court did not abuse its discretion in admitting Agent Magnuson's testimony.

[00:13:49] Speaker 04:
His testimony remained general throughout.

[00:13:52] Speaker 07:
Could I ask you, where in the record will I find the summary provided

[00:14:00] Speaker 07:
under Rule 16A1G that describes the witnesses' opinions, the bases and reasons for those opinions.

[00:14:15] Speaker 04:
Your Honor, what was provided in our expert notice was the 36 to 38 page report that Agent Magnuson had produced plotting the cell towers.

[00:14:28] Speaker 07:
So is that

[00:14:30] Speaker 07:
the various maps?

[00:14:33] Speaker 04:
The maps, yes, Your Honor.

[00:14:34] Speaker 07:
I looked at all those maps and I looked at the little paragraph that preceded them.

[00:14:42] Speaker 07:
I don't see anything that tells me what the witness's opinion is or the basis or reasons for those opinions in that pre-trial

[00:14:58] Speaker 07:
rule 16 submission by the government.

[00:15:02] Speaker 07:
Is there something I have not seen that's in the record?

[00:15:05] Speaker 04:
No, Your Honor.

[00:15:07] Speaker 04:
What you've described is what the government provided.

[00:15:10] Speaker 07:
So is the government's position that in submitting those pages it complied with rule 16A1G?

[00:15:20] Speaker 04:
Well, Euron, I think it did in that it graphically represented what Agent Magnuson's testimony would be.

[00:15:27] Speaker 04:
Oh, how?

[00:15:28] Speaker 07:
How?

[00:15:29] Speaker 07:
It shows me a map with some dots on it and arrows.

[00:15:32] Speaker 04:
Well, it showed the cell towers that were used, the sectors that were used.

[00:15:36] Speaker 07:
But what is your expert going to say about those dots, cell towers, and maps?

[00:15:44] Speaker 04:
He said exactly what his maps depicted, which is that a phone used a particular tower

[00:15:49] Speaker 04:
and a sector at a particular time.

[00:15:51] Speaker 07:
What I'm trying to understand is if I am defense counsel and I'm trying to understand what the government's expert is going to testify and I file a pretrial discovery letter that asks specifically for what the rule requires the government to submit,

[00:16:10] Speaker 07:
And then I file a pretrial motion saying the government has not submitted this information.

[00:16:15] Speaker 07:
How am I supposed to prepare for trial?

[00:16:17] Speaker 04:
Well, Your Honor, I don't think there was that sort of confusion here.

[00:16:20] Speaker 04:
Appellants in their motion in Lemonay clearly knew what Agent Magnuson's theory was.

[00:16:24] Speaker 04:
In fact, they described it.

[00:16:25] Speaker 07:
Actually, in their motion, they said they didn't know.

[00:16:28] Speaker 07:
That's what I'm trying to understand in terms of what rule

[00:16:33] Speaker 07:
16 sub G says is the required statement or the required summary.

[00:16:41] Speaker 04:
Well, I don't think that their argument wasn't that they didn't know that looking at these maps they had no idea what his testimony would be.

[00:16:47] Speaker 04:
Their argument was that his testimony was unreliable because there was no way to tell from cell towers that were used where a particular phone is located.

[00:16:57] Speaker 07:
Because they don't know the opinions and the bases and reasons

[00:17:03] Speaker 07:
what he's going to say.

[00:17:04] Speaker 07:
That's precisely what they were objecting to, isn't that correct?

[00:17:07] Speaker 07:
I just want to be clear about whether the government thinks its submission complied with the rule.

[00:17:13] Speaker 04:
I think the submission could have been more fulsome.

[00:17:16] Speaker 04:
Yes, Your Honor.

[00:17:17] Speaker 07:
I'm not going to suggest that the submission... So mid-trial, defense counsel first learns that in fact

[00:17:28] Speaker 07:
the witness is going to talk about locations within one to two miles.

[00:17:35] Speaker 04:
Yes, Your Honor, but well, that was not the first that they knew that that was his methodology because they in fact attached his testimony from a prior case in which he gave the exact same testimony.

[00:17:45] Speaker 04:
So it wasn't a surprise to them.

[00:17:47] Speaker 07:
I'm struck by the fact that because a witness has been qualified in another case,

[00:17:56] Speaker 07:
Therefore, the witness is automatically qualified as an expert in the case now before the district court.

[00:18:06] Speaker 04:
But I don't think that that was the district court's conclusion.

[00:18:09] Speaker 07:
Well, the district court relied on Judge Huvel's description of methodology, where, at least according to the published opinion, what the witness was going to say was quite different

[00:18:25] Speaker 04:
Well, the methodology used in that prior case was essentially the same as the methodology used here.

[00:18:31] Speaker 07:
How did the district court know that?

[00:18:34] Speaker 04:
Well, because she had the maps, and she saw the way that he had plotted the projected coverage areas.

[00:18:41] Speaker 07:
But does the district court have a statement of his opinions and the basis and reasons?

[00:18:48] Speaker 04:
Apart from his map, no, but these were again graphic representations of what he had concluded.

[00:18:55] Speaker 08:
There's nothing in the disclosure that gives any sense of order of magnitude, right?

[00:19:04] Speaker 08:
Ten miles is very different from half a mile.

[00:19:08] Speaker 04:
No, but Magnuson's testimony was general throughout.

[00:19:12] Speaker 04:
In the one instance where he actually put a number on the distance, that half a mile statement, it still was a fairly general estimate.

[00:19:22] Speaker 04:
He resisted.

[00:19:23] Speaker 08:
I understand.

[00:19:24] Speaker 08:
I'm not pressing right now on whether half a mile is in some sense general or specific.

[00:19:31] Speaker 08:
I'm pressing on

[00:19:33] Speaker 08:
the absence of any magnitude of, are we talking about 10 miles or one to 10 miles, which is what people think is the case in rural areas, one to two miles, which is what he said in the Jenks statement, or half a mile, which was his ultimate opinion at trial.

[00:19:54] Speaker 04:
Right.

[00:19:55] Speaker 04:
I mean, in our initial disclosure, that was not included.

[00:19:58] Speaker 04:
But in the prior testimony attached by appellants to their motion to eliminate, he gave those kind of numerical projections.

[00:20:07] Speaker 08:
So in the Florida case with Judge Rosenbaum, what was the order of magnitude?

[00:20:15] Speaker 08:
One to two miles, half a mile?

[00:20:16] Speaker 04:
That was the Davis case.

[00:20:18] Speaker 04:
I'm not entirely sure if he gave an order of magnitude, but the case that was attached to Appellant's motion was the Savage case out of Pennsylvania.

[00:20:27] Speaker 04:
And there he did testify that generally cell towers in urban locations tend to have a range of one to two miles.

[00:20:35] Speaker 04:
They can be greater in rural areas.

[00:20:38] Speaker 04:
And that was entirely consistent with his testimony here.

[00:20:41] Speaker 04:
And again, I think, you know, Magnuson at trial was very careful to emphasize to the jury that he wasn't able to determine exactly where a phone was.

[00:20:49] Speaker 09:
But this prior testimony was given not with the Rule 16 notice, it was given as jinx, right?

[00:21:02] Speaker 04:
The two-page document, or the prior testimony was attached to appellant's motion in limine.

[00:21:07] Speaker 04:
So they brought it to the court's attention.

[00:21:10] Speaker 04:
And that was a month before trial.

[00:21:14] Speaker 09:
Yeah, but that was not as part of the government's Rule 16 notice.

[00:21:21] Speaker 04:
No, it was not.

[00:21:22] Speaker 04:
No, it was not.

[00:21:22] Speaker 09:
But I don't think that... But, I mean, you're turning Rule 16 on its head.

[00:21:28] Speaker 09:
You're saying that the defense is supposed to be able to figure out that he's likely to give these opinions in this case because he gave similar opinions in a prior case, where it's the government's burden

[00:21:42] Speaker 09:
or obligation to explain what the opinions are that its expert is going to give in this case.

[00:21:49] Speaker 04:
Your Honor, I'm not suggesting that.

[00:21:51] Speaker 04:
What I'm trying to suggest is that appellants here weren't surprised by the testimony.

[00:21:56] Speaker 04:
They knew in advance what the testimony was going to be, the nature of the testimony.

[00:22:01] Speaker 04:
So in terms of, you know... Why do they know that he's going to say the same thing in this case?

[00:22:09] Speaker 09:
Then then what he said in Florida or somewhere else, given that Judge Yuval.

[00:22:16] Speaker 09:
On which the I guess the the.

[00:22:20] Speaker 09:
The district court based.

[00:22:23] Speaker 09:
It's ruling precluded precisely that sort of testimony, right?

[00:22:28] Speaker 04:
Well, she precluded testimony as to exact location, and that had never been the nature of his testimony in any prior case.

[00:22:36] Speaker 09:
Was the nature of his testimony in this case the same as the nature of the testimony in the Jones case?

[00:22:43] Speaker 04:
Yes, Your Honor, it was.

[00:22:44] Speaker 04:
It was general location within a sector as depicted in the maps.

[00:22:51] Speaker 04:
So appellants

[00:22:53] Speaker 04:
knew what his testimony was going to be.

[00:22:55] Speaker 04:
Their complaint on appeal is not, as Judge Katz has pointed out, not that his testimony is entirely unreliable and inadmissible, but simply that that discrete testimony about the half-mile range of the tower is inadmissible.

[00:23:10] Speaker 04:
And our argument is that it's still within this general range.

[00:23:16] Speaker 09:
A half a mile is... But if they had talked to an expert before trial who said that it's absolutely ridiculous if he were to come in and say it's within a half mile or a mile or two miles,

[00:23:32] Speaker 09:
But they hadn't, you know, didn't have that expert at the ready because they didn't believe that the expert, your expert was actually going to do that.

[00:23:43] Speaker 09:
And then they can't get their expert in time because he or she has other obligations, et cetera, because this is sprung on the mid-trial.

[00:23:54] Speaker 09:
I mean, that's why you have Rule 16.

[00:23:57] Speaker 04:
But there's nothing in the record to suggest that their expert wasn't available or couldn't testify.

[00:24:02] Speaker 04:
They had noticed the expert pretrial.

[00:24:05] Speaker 04:
At the conclusion of the evidence, they told the court that they weren't planning to call their expert.

[00:24:10] Speaker 04:
They never suggested to the court that our expert isn't available or, for some reason, we were prejudiced and can't put on our expert.

[00:24:17] Speaker 04:
I think the fact that they didn't put on an expert is strong evidence that they didn't, in fact, find the testimony prejudicial.

[00:24:23] Speaker 04:
And again, all of this was played out before the jury.

[00:24:26] Speaker 04:
in cross-examination and closing argument.

[00:24:29] Speaker 04:
And contrary to appellant's contention, there actually was very strong evidence of appellant's guilt apart from the cell site evidence.

[00:24:37] Speaker 07:
And that is?

[00:24:38] Speaker 04:
There were three different co-conspirators.

[00:24:40] Speaker 07:
So they were all impeached.

[00:24:42] Speaker 04:
Well.

[00:24:43] Speaker 07:
What else?

[00:24:43] Speaker 04:
There were recorded calls, Machado Arasso and Martina Zamaya.

[00:24:47] Speaker 07:
That's what I asked counsel about.

[00:24:48] Speaker 07:
And I wanted to ask you about, because counsel represented that her client

[00:24:56] Speaker 07:
was not on those recorded calls.

[00:24:59] Speaker 04:
And that's simply incorrect, Your Honor.

[00:25:01] Speaker 04:
In a call from March 7th, the day after the March 6th meeting, which gave rise to the motive for the murder, Rivera Luna, the gang leader in El Salvador, is speaking to Machado Arraso on the phone, and he mentions that Machado Arraso gave him Enriquez's phone number so that he could investigate him.

[00:25:22] Speaker 04:
In addition, that same day, Solorzano spoke with Martina Zamaya on the phone, and Martina told him what had happened at the meeting.

[00:25:32] Speaker 04:
Martina Zamaya asked for Enriquez's phone number and agreed to help Solorzano out with his obligation to kill within 13 days.

[00:25:42] Speaker 07:
Now, I didn't hear any reference to Council West's client in that list except

[00:25:52] Speaker 07:
the initial call?

[00:25:54] Speaker 04:
Well, he was at the March 6th meeting, and he can be heard in that recording at the March 6th meeting talking to Enriquez and basically putting him in his place, telling him how to behave.

[00:26:06] Speaker 04:
And then the very next day, he's giving... Well, how did he tell him how to behave?

[00:26:10] Speaker 04:
I'm sorry?

[00:26:10] Speaker 07:
How did he tell him how to behave?

[00:26:14] Speaker 07:
What did he say?

[00:26:15] Speaker 04:
Well, his obligations within the gang to

[00:26:19] Speaker 04:
to kill, to support the gang.

[00:26:21] Speaker 04:
When Enriquez is heard criticizing.

[00:26:25] Speaker 07:
What I'm trying to focus you on is this particular murder that occurred apparently, or at least the body was found within this one to two mile area.

[00:26:40] Speaker 04:
Well, Your Honor, not only is he at the meeting, as I've said, he's the very next day giving the phone number of the victim to the gang leader in El Salvador.

[00:26:48] Speaker 04:
And I would note that Saravia, although appellant claims he was impeached at trial, there is a recording three weeks after the murder of Saravia telling another gang member that Machado Arazo and Martinez Amaya and him had committed the murder.

[00:27:04] Speaker 04:
And that was before he began cooperating in this case.

[00:27:07] Speaker 07:
All right.

[00:27:08] Speaker 07:
to the murder three weeks after the meeting.

[00:27:15] Speaker 07:
Is that right?

[00:27:16] Speaker 04:
No, that was Saravia speaking to another gang member, Avila Melendez, in a recording about what had happened.

[00:27:28] Speaker 04:
had recounted the murder.

[00:27:30] Speaker 07:
So somebody else pinned her client for the murder.

[00:27:33] Speaker 07:
I'm just trying to be very clear about this.

[00:27:35] Speaker 07:
You said there's very strong evidence.

[00:27:37] Speaker 07:
You said three co-conspirators plus these recordings, March 7, then three weeks after the murder.

[00:27:46] Speaker 07:
What else is there?

[00:27:49] Speaker 04:
Well, Avila Melendez testified that Martinez Amaya told him that the murder had been committed shortly after it was committed.

[00:27:59] Speaker 07:
These are co-conspirators.

[00:28:00] Speaker 04:
These are co-conspirators, but they're mutually corroborating.

[00:28:03] Speaker 07:
I understand, but they're impeached.

[00:28:05] Speaker 07:
You said there's very strong evidence, so I just wanted to understand what it is.

[00:28:10] Speaker 07:
You say the three Cahope conspirators testimony, plus these two recordings you've mentioned.

[00:28:17] Speaker 07:
Is there anything else?

[00:28:18] Speaker 04:
Well, the recording of Saravia, which we think was before any possible motive to fabricate.

[00:28:24] Speaker 07:
Those are the two recordings I just mentioned.

[00:28:26] Speaker 07:
Anything else?

[00:28:28] Speaker 04:
That's a third recording.

[00:28:29] Speaker 04:
I'm sorry, Your Honor.

[00:28:29] Speaker 04:
Third recording.

[00:28:30] Speaker 04:
Yes.

[00:28:30] Speaker 07:
Do you have a date for that?

[00:28:32] Speaker 04:
That was April 18.

[00:28:33] Speaker 07:
Okay, so those three recordings.

[00:28:37] Speaker 07:
And that's it.

[00:28:39] Speaker 04:
Well, and not to mention this.

[00:28:41] Speaker 07:
I just want to know what it is.

[00:28:42] Speaker 04:
Sure.

[00:28:42] Speaker 04:
We submit that that was strong evidence, not to mention the evidence of motive and the evidence of the gang's MO essentially operating to eliminate recalcitrant gang members, to execute green lights.

[00:29:01] Speaker 04:
We think that all of that was strongly supported appellate's guilt in this case.

[00:29:05] Speaker 07:
All right, but it's the three co-conspirators, the three recorded phone calls, and the overarching conspiracy.

[00:29:15] Speaker 04:
Yes, Your Honor.

[00:29:16] Speaker 04:
And I did want to clear up one inaccuracy before I leave the podium, and that is that Ms.

[00:29:22] Speaker 04:
West pointed out that the testimony was that the

[00:29:25] Speaker 04:
Phones were within half a mile of each other.

[00:29:27] Speaker 04:
The half mile testimony was actually that Sarabia's phone was within half a mile of a cell tower.

[00:29:34] Speaker 04:
With respect to the relation of phones to each other, he used very general length talking in approximations.

[00:29:39] Speaker 04:
They were in close proximity.

[00:29:41] Speaker 04:
Very close.

[00:29:43] Speaker 04:
They were very close.

[00:29:44] Speaker 04:
They were in close proximity.

[00:29:45] Speaker 07:
But again, it's all... I'm sorry, Your Honor.

[00:29:48] Speaker 07:
Those are his words.

[00:29:49] Speaker 04:
Those are his words, yes.

[00:29:50] Speaker 04:
Very close.

[00:29:51] Speaker 04:
Absolutely.

[00:30:16] Speaker 07:
Let me ask you, we were just conferring here about how we're going to proceed.

[00:30:20] Speaker 07:
We think we'd like to do it, if it's all right with Judge Wilkins, issue by issue.

[00:30:26] Speaker 07:
So shall we just have a minute of rebuttal here on the cell tower?

[00:30:57] Speaker 05:
With regard to the Rule 16 violation, I wanted to point the court's attention to one of the cases in the brief, United States versus Day, a district court opinion by Judge Friedman, where he quotes the advisory committee amendment of 1993, which says,

[00:31:23] Speaker 05:
The requesting party is to be provided with the summary of the basis of the expert's opinion that should cover not only written and oral reports, test reports, and investigations, but any information that might be recognized as a legitimate basis for an opinion under federal rule of evidence at the time, 703, including opinions of other experts.

[00:31:42] Speaker 05:
In that case, Judge Day did not allow the expert opinion.

[00:31:47] Speaker 05:
With regard to Judge Katz's question with United States v. Davis, which is the Florida case

[00:31:57] Speaker 05:
The agent from my cursory review of the case right now, it appears that he did not use a specific, did not testify to a specific distance, but just said that he used a 120 degree pie shape and extended approximately 50 to 70 percent of the way

[00:32:14] Speaker 05:
to the nearest cell tower as a, quote, very, very accurate depiction of the sector.

[00:32:19] Speaker 05:
And in that case, he used a different methodology than in this case.

[00:32:23] Speaker 08:
But that would imply a distance, right?

[00:32:25] Speaker 05:
Yes.

[00:32:25] Speaker 08:
50 percent to the next tower.

[00:32:27] Speaker 05:
Right.

[00:32:27] Speaker 05:
But without knowing what those distances are, we could never know what that distance is.

[00:32:31] Speaker 05:
And he used a methodology that's different in the instant case.

[00:32:34] Speaker 05:
He used other software to come up with that.

[00:32:38] Speaker 08:
But it's not, I mean, it's a little bit of an overstatement to say that in the other case, there was no attempt to quantify.

[00:32:48] Speaker 05:
In which other case?

[00:32:50] Speaker 08:
In Davis.

[00:32:51] Speaker 08:
He's saying 50% of the way to the other cell tower as opposed to one to two miles or half a mile.

[00:32:57] Speaker 05:
Right.

[00:32:57] Speaker 05:
Which is one of our contentions is that we don't even know how far away these cell towers are.

[00:33:02] Speaker 05:
And Agent Magnuson testified in this case, he'd never been to Rockville.

[00:33:06] Speaker 05:
He was not familiar with the area.

[00:33:08] Speaker 05:
And that's another reason why we believe that the judge erred in letting his testimony in.

[00:33:15] Speaker 08:
Can we talk for a second about 16D2, which is the remedy provision, which says that the district court has a lot of discretion to figure out what to do about any violation.

[00:33:30] Speaker 08:
And it's abuse or discretion review and we've said that exclusion is an extreme sanction that is only rarely justified.

[00:33:39] Speaker 05:
I think and I think the other there's a couple other remedies the court you can grant a continuance and what is asked for.

[00:33:50] Speaker 05:
And I think in this case, the problem is the government's conduct in saying, this is what the testimony is going to be.

[00:33:58] Speaker 05:
And we even forewarned them with our own investigation of what his testimony was in other cases.

[00:34:07] Speaker 05:
We objected at that time strenuously, as the record indicates, and we believe that the evidence was so thin and the confusion so great as to all the phone numbers with the exchange of the exhibit page.

[00:34:22] Speaker 05:
This is correct.

[00:34:22] Speaker 05:
This isn't correct.

[00:34:24] Speaker 05:
Okay, you see it now, then I'm taking it away from you because the government didn't change it right.

[00:34:27] Speaker 05:
Okay, now I'm going to give it back to you.

[00:34:29] Speaker 05:
No, that's really the number that I'm getting.

[00:34:31] Speaker 05:
There are so many different people with so many different phone numbers, it was impossible to keep straight.

[00:34:36] Speaker 08:
Why couldn't the district court, given this broad discretion as to remedy, say to himself that the technology is generally reliable?

[00:34:50] Speaker 08:
It's pretty clear from this disclosure sort of how the expert is going to proceed.

[00:34:57] Speaker 08:
You know the point and you know the sector.

[00:35:00] Speaker 08:
The real harm to you is you don't know the quantum, whether the opinion is 10 miles or 1 mile or half a mile, but you do know generally that the closer you try to pinpoint the cell phone, the less reliable the testimony is going to be.

[00:35:20] Speaker 08:
And that gives you enough ammunition to cross-examine an expert when he comes in and says, no, this is not the 10-mile case.

[00:35:31] Speaker 08:
This is the half-mile case.

[00:35:33] Speaker 05:
Which is what we can, and Judge Wilkins asked earlier what that testimony was.

[00:35:37] Speaker 05:
It was on direct examination where he said, well, it could be up to 12 miles.

[00:35:41] Speaker 05:
Then we do our cross-examination.

[00:35:44] Speaker 05:
Then he, I believe, on redirect says that it could be within a half a mile without the transcript.

[00:35:52] Speaker 05:
I can't swear to that, but that is the problem is we didn't have, we couldn't

[00:35:59] Speaker 05:
Once the cat's out of the bag, you could bring in your expert and yeah, you couldn't say that, but that becomes something we couldn't overcome.

[00:36:09] Speaker 08:
As I understand it, you had a cell tower expert who was ready to go and chose not to put him on the stand.

[00:36:18] Speaker 05:
That's not true.

[00:36:19] Speaker 05:
We did notice an expert, but after Judge Collier made her ruling, there was no harm to us if somebody's going to testify us within the sector, because we know from our expert that sector could be within 10 miles.

[00:36:35] Speaker 05:
So there wasn't really any harm to us.

[00:36:37] Speaker 05:
The harm occurred when we start talking about specific distances.

[00:36:42] Speaker 09:
But you didn't ask for any remedy or relief other than exclusion of that testimony?

[00:36:50] Speaker 05:
That's correct.

[00:36:51] Speaker 05:
And the judge overruled our objection at that time, actually several times, and there was no instruction given.

[00:37:01] Speaker 07:
Well, he did instruct, did he not, that the jury was not required to accept the expert's testimony?

[00:37:09] Speaker 05:
Yes, that's in the jury instructions, Your Honor.

[00:37:12] Speaker 05:
Finally, I wanted to make clear for Judge Rogers specifically that

[00:37:20] Speaker 05:
My client was indeed on several wiretap phone calls.

[00:37:24] Speaker 05:
We believed in the defense team that his language on those calls did not indicate that he was going to commit a murder.

[00:37:32] Speaker 05:
It's a very different thing being a member of MS-13 involuntarily, I might add, and doing things.

[00:37:40] Speaker 05:
And it's quite another matter being some other cooperating code defendant saying you committed a murder.

[00:37:47] Speaker 05:
That was our point.

[00:37:48] Speaker 05:
Thank you, Your Honor.

[00:37:56] Speaker 07:
All right, we'll turn to issue two.

[00:38:05] Speaker 06:
May it please the court.

[00:38:06] Speaker 06:
My name is Christine Pembroke.

[00:38:08] Speaker 06:
I represent Mr. Martin Hezemiah, and I will be addressing the other crimes argument, the obstruction and extortion jury instruction and sufficiency issues, and the double jeopardy issues.

[00:38:21] Speaker 07:
All in five minutes.

[00:38:22] Speaker 06:
I know.

[00:38:27] Speaker 06:
I did notice that you all blocked out the entire morning for us, so hopefully we have time.

[00:38:32] Speaker 07:
Well, that's the time you requested.

[00:38:36] Speaker 06:
The government was faced with a fundamental problem in prosecuting the appellants in this case.

[00:38:41] Speaker 06:
All of the government's direct evidence of the alleged crimes in which appellants personally participated

[00:38:49] Speaker 06:
consisted of the testimony, as Your Honors have noted, of admitted felons who shielded themselves from life sentence, prison sentences in most cases for the very crimes that appellants were charged with personally committing by pointing the finger at appellants.

[00:39:06] Speaker 06:
Thus, the government's best evidence as to the crimes which appellants allegedly participated in personally was questionable on its face.

[00:39:14] Speaker 07:
Well, you're aware of our opinion in the gil, correct?

[00:39:18] Speaker 06:
I'm not sure where your honor is going, I'm sorry.

[00:39:24] Speaker 07:
You're familiar with this court's decision in McGill?

[00:39:28] Speaker 06:
Actually, I do have McGill with me, but I'm not clear.

[00:39:33] Speaker 07:
Well, I'm getting to the government's argument in this case that none of this is other crimes evidence.

[00:39:43] Speaker 06:
Well, I think the problem is that the government is relying on what is asserted in a 22 page indictment, which covered charges against individuals who were not tried with appellants.

[00:39:59] Speaker 06:
And that should not dictate what is relevant to a criminal trial.

[00:40:07] Speaker 06:
That kind of reasoning puts the government in the position of just throwing whatever it can into the indicting papers and will just result in people fighting over what's going to be in the indictment.

[00:40:20] Speaker 07:
So I guess what I'm trying to get you to focus on is to help me understand what role rule 404B

[00:40:28] Speaker 07:
and Rule 403 have, and particularly after McGill, if any.

[00:40:37] Speaker 06:
Well, I think that 404 still applies with respect to the allegations that are specific to our clients, but it doesn't mean that everything that's in the indictment suddenly defines the scope of the criminal activity that can be presented at trial.

[00:40:57] Speaker 08:
Well, go ahead.

[00:40:59] Speaker 08:
The charge defense is a conspiracy.

[00:41:04] Speaker 08:
And I think Judge Rogers is citing McGill because that case says that in the context of conspiracy, government can prove acts done in furtherance of the conspiracy to prove the conspiracy.

[00:41:21] Speaker 08:
And then above and beyond that, this is a RICO conspiracy, so the government has to prove things like the existence of the enterprise and the existence of a pattern, and all of these acts are relevant to that.

[00:41:38] Speaker 08:
So, I mean, it seems pretty clear to me that there's a non-propensity purpose for all of that evidence, and your best argument is not a 4041, but a 403.

[00:41:50] Speaker 06:
Well, I would agree to a certain extent with that, but I do believe that I don't think it was the intent of McGill to allow the government to bring in a series of criminal activity that occurred before appellants even joined the conspiracy.

[00:42:08] Speaker 09:
The problem I see, and that's what leads to what I was going to ask, is that neither your brief nor the government's brief really discusses what the evidence is in the light most favorable to the government as to the dates as to which of these each of these appellants joined the conspiracy.

[00:42:34] Speaker 09:
I think the government

[00:42:37] Speaker 09:
says that with respect to Ayala.

[00:42:42] Speaker 09:
it's late 2000 or they say, I'm sorry, they say by 2008 or by late 2008 or something like that.

[00:42:53] Speaker 09:
But no one is really specific about dates here.

[00:42:58] Speaker 09:
But your argument is that these other crimes acts were prior to when your clients joined the conspiracy, but you don't present

[00:43:12] Speaker 09:
How are we supposed to figure that out?

[00:43:15] Speaker 06:
With respect to Mr. Martinez Amaya, he became involved after Ponce was arrested.

[00:43:23] Speaker 06:
And these crimes were committed, a number of these crimes were committed by Ponce while he was involved.

[00:43:30] Speaker 06:
So it's clear in terms of that timeframe that he didn't join until after these horrific acts occurred.

[00:43:37] Speaker 06:
And they are the most inflammatory.

[00:43:40] Speaker 06:
the murders allegedly committed by, I'm not sure how you pronounce his name.

[00:43:46] Speaker 08:
He came to the United States after those acts were committed, but the evidence viewed most favorably to the government is that he was already a leader of MS-13 in El Salvador and was sent here to take over the leadership position.

[00:44:09] Speaker 06:
I mean, I understand what you're saying.

[00:44:12] Speaker 06:
The problem with this is, though, that MS-13 is a huge organization, and it operates in sort of different cells, so it's not, and that's part of the problem, what is the conspiracy?

[00:44:28] Speaker 06:
It's not clear that what happens in El Salvador is necessarily part of the same conspiracy that is involved in this particular case, and I think that

[00:44:39] Speaker 06:
It stretches the rule of relevancy too far to start pulling in activities that occurred before these individuals were even involved in the cliques that carried out these offenses.

[00:44:56] Speaker 06:
I mean, that's at least our theory.

[00:44:58] Speaker 06:
You could look at it both ways, but I think that it just becomes absurd to extend every single, you know, every single crime that MS-13 ever committed at any time, anywhere in the world is now attributable

[00:45:11] Speaker 06:
to appellants and you can present evidence of that.

[00:45:15] Speaker 08:
I agree with that and I think you'd have a great case if the government were trying to put on evidence of crimes committed in prisons in California or years removed but this one is

[00:45:32] Speaker 08:
pretty close in time and pretty close in space to the particular clicks we're talking about.

[00:45:43] Speaker 08:
And what's odd factually is what you said, which is this one individual was not yet here.

[00:45:52] Speaker 08:
but the evidence is of the enterprise and the pattern of racketeering in the clique that he eventually took over.

[00:46:03] Speaker 06:
Well, I would just disagree with your honor.

[00:46:06] Speaker 06:
I don't think that our client should be held accountable for what happened before they even joined the cliques, or were even in the country.

[00:46:12] Speaker 08:
Joined the clique, but not before they joined the enterprise that was charged.

[00:46:19] Speaker 06:
That's, I mean, I think that's where I would make the demarcation point.

[00:46:23] Speaker 09:
I understand.

[00:46:24] Speaker 09:
Was there any sort of instruction given as to the jury as to how they were to use and consider this evidence and as to which defendants the evidence was relevant to?

[00:46:41] Speaker 06:
I don't believe there was any sort of limiting instruction.

[00:46:43] Speaker 09:
Was any requested?

[00:46:46] Speaker 06:
Well, appellants repeatedly objected

[00:46:49] Speaker 06:
And the court did not take it upon itself to offer some alternative.

[00:46:55] Speaker 09:
I understand that there were objections.

[00:46:57] Speaker 09:
I'm asking whether the defense sought any limiting instruction.

[00:47:02] Speaker 06:
I have not seen any specific limiting instruction that was requested.

[00:47:10] Speaker 06:
And I would just underscore how horrific this testimony was.

[00:47:14] Speaker 06:
I mean, the photographs are quite graphic of deceased persons and the injuries that were inflicted at the crime scene photographs are very graphic and bloody.

[00:47:27] Speaker 06:
And that you had eyewitness testimony from individuals who were attacked and wounded, seriously.

[00:47:41] Speaker 06:
So for all of those reasons, we would argue that, and I would also add that to the extent the government was trying to show how CLICS operated and felt that this testimony was relevant to that, they had extensive testimony from Mr. Juan Diaz, I believe, the El Salvador national police officer.

[00:48:03] Speaker 06:
He testified for almost two days about how MS-13 operates and what they do.

[00:48:10] Speaker 06:
We don't think that the government needed to bring any of this specific testimony in to demonstrate what was going on with the MS-13 gangs.

[00:48:21] Speaker 06:
And for all those reasons, we would argue that the jury was inflamed by this testimony and prejudiced into finding the appellants guilty of the Rico vicar and murder charges.

[00:48:35] Speaker 06:
Moving on to our next point,

[00:48:40] Speaker 06:
We attacked all of the predicate offenses on the Rico conviction.

[00:48:45] Speaker 06:
First, we argued that the jury instructions as to the predicate offense of extortion was improper because it left out the elements of a wrongful taking.

[00:48:57] Speaker 06:
and that the object of the alleged extortion had to be something of value.

[00:49:02] Speaker 06:
And I think we clearly demonstrated that the testimony about collecting rents, which was the only testimony really about extortion, was fairly weak in this particular instance.

[00:49:16] Speaker 06:
First of all, there was testimony that indicated that rents were collected primarily from illegal activities.

[00:49:21] Speaker 06:
So there was an inference that there was a quid pro quo here.

[00:49:25] Speaker 06:
that the rents were being collected in order to protect the illegal activities from being interfered with by other gangs or that they were in concert with.

[00:49:36] Speaker 08:
There's no rule of law that permits extortion from an illegal business.

[00:49:44] Speaker 06:
Well, but I think that's not – the argument that I'm making is that there is possibly – there's an inference of a joint venture here that the illegal operations were part of this gang activity and that they were helping each other, not that there was any real serious threat to the people who are paying rents.

[00:50:07] Speaker 06:
But the other aspect of this is that the individuals who provided testimony about the extortion said, well, yes, this is something that MS-13 does, but air clicks weren't doing it.

[00:50:19] Speaker 06:
We weren't doing it when we were there.

[00:50:22] Speaker 06:
There was rent paid, but it was rent in the context of gang members basically paying dues when they showed up at a meeting.

[00:50:30] Speaker 06:
It wasn't in the context of any kind of extortion.

[00:50:33] Speaker 06:
And the testimony on that is pretty clear.

[00:50:36] Speaker 06:
So I think if you take all of that together, leaving out the wrongfulness element of it really suggests that the juries could find that

[00:50:46] Speaker 06:
the appellants weren't engaged in any extortion activity.

[00:50:50] Speaker 06:
And for that reason, the error in the instruction was harmful.

[00:50:55] Speaker 06:
We also argued that the instruction on witness tampering was erroneous.

[00:51:01] Speaker 08:
Sorry, can I just ask before you move on?

[00:51:04] Speaker 08:
So the government represents in its brief, there was evidence

[00:51:09] Speaker 08:
that appellants specifically funded their gang activities and maintain control of territory by extorting local businesses, prostitutes, drug dealers, and others in the community.

[00:51:21] Speaker 08:
Is that a misstatement?

[00:51:24] Speaker 06:
I think that does stretch the facts in this case.

[00:51:26] Speaker 08:
If you look at the specific testimony about what was going on... Gang members, including Machado, would collect rent from such individuals by threatening to injure or kill them if they failed to pay.

[00:51:39] Speaker 06:
I don't know.

[00:51:40] Speaker 06:
I mean, does the government cite any?

[00:51:43] Speaker 08:
I mean, there's a string site.

[00:51:44] Speaker 08:
We can check.

[00:51:45] Speaker 06:
We can check the record sites, but because the sites that I'm seeing about this activity.

[00:51:51] Speaker 06:
The gang members are asked, so you collected rents, and they say, no, we didn't do it.

[00:51:57] Speaker 06:
Well, you know, I mean, that was done, but we weren't doing it.

[00:52:02] Speaker 06:
And there's testimony by a number of them saying that we paid rent as dues when we went to a meeting, not necessarily as part of any extortion activity.

[00:52:11] Speaker 06:
So there's a lot of confusion about what exactly rents are.

[00:52:16] Speaker 06:
So, I mean, I don't believe that

[00:52:19] Speaker 06:
There was any specific testimony in which Machado said, I force people to pay me rent.

[00:52:26] Speaker 06:
I don't think that exists in the record, but the government will have an opportunity to correct me if that's wrong.

[00:52:31] Speaker 08:
It's at page 31 of their brief.

[00:52:35] Speaker 06:
But I don't know what in the record it refers to.

[00:52:38] Speaker 06:
We'll check it.

[00:52:40] Speaker ?:
OK.

[00:52:40] Speaker 06:
And then the other issue moving on to the jury instruction on witness tampering, we argued that that instruction was erroneous because of the omission of the materiality element or a charge to the jury that the conduct must have the natural and probable effect of interfering with the due administration of justice.

[00:53:05] Speaker 06:
Again, in this context, you have witnesses who all had some vested interests, were all impeached, testifying about whether or not there was any conduct that might have interfered with their testimony.

[00:53:22] Speaker 06:
And had the jury been given this instruction, that would have been enough, we think, to tip the scale and possibly result in the jurors not convicting on that offense as well.

[00:53:33] Speaker 06:
with respect to double jeopardy, as the Garner Court found, it violates double jeopardy to convict Rico and Vicker for the same predicate offense.

[00:53:49] Speaker 06:
And to that extent, this Court could

[00:53:51] Speaker 06:
apply Garner to say that the underlying murder conviction on the RICO charge cannot be relied on to support that.

[00:53:58] Speaker 06:
So you have all three predicate offenses to the RICO charge that are vulnerable and to some degree or alternatively this court could take the position that the vicar charge should be thrown out on double jeopardy grounds.

[00:54:14] Speaker 07:
Thank you.

[00:54:31] Speaker 07:
All right, counsel for the government.

[00:54:33] Speaker 04:
Yes, addressing first the other crimes argument.

[00:54:37] Speaker 04:
All of the challenge crimes here were admissible as direct proof of the charged conspiracy and were really not other crimes at all.

[00:54:44] Speaker 09:
What was the scope of this conspiracy?

[00:54:46] Speaker 04:
The conspiracy charge was a conspiracy beginning in the late 1990s and extending to the present.

[00:54:52] Speaker 04:
The other crimes that are complained of were crimes that were committed in 2008 and 2009 around the time period when these appellants joined or were members of the conspiracy.

[00:55:05] Speaker 09:
So if the conspiracy charge was from the late 1990s to the present, would a

[00:55:14] Speaker 09:
murder in 1999 by MS-13 in California be direct evidence of the conspiracy?

[00:55:24] Speaker 04:
I think it wouldn't be inadmissible under 404B.

[00:55:29] Speaker 04:
I think it would be evidence of the conspiracy of the enterprise.

[00:55:33] Speaker 04:
Whether or not it would be admissible under 403 is another question.

[00:55:37] Speaker 04:
At some point

[00:55:38] Speaker 04:
it's, you know, a crime could be too attenuated to, you know, to be probative or, you know, the prejudicial value of the evidence may outweigh its probative value at a certain point.

[00:55:49] Speaker 04:
But that's not the problem that we have in this case.

[00:55:51] Speaker 09:
Well, my other question to you is, if that's the scope of the conspiracy in general, it's only what matters is when these defendants join the conspiracy and when, if ever, they left the conspiracy, right?

[00:56:08] Speaker 04:
I don't think that's correct, Your Honor.

[00:56:10] Speaker 04:
Where a conspiracy is charged, the government is entitled to bring in evidence to prove the existence of the conspiracy, even if it was before or after appellants joined the conspiracy.

[00:56:23] Speaker 04:
To prove the conspiracy itself, the enterprise itself, the government would be entitled to bring in that evidence.

[00:56:29] Speaker 04:
Again, the 403 balancing might be affected, but as far as whether that evidence would be other crimes evidence, I don't think it would be other crimes evidence.

[00:56:41] Speaker 09:
Now, all... Shouldn't an instruction be given to guide the jury as to how they're supposed to use evidence like that?

[00:56:49] Speaker 04:
Well, a court is not required to give an instruction where the evidence isn't truly other crimes.

[00:56:55] Speaker 09:
We do require on the record finding that it's more prejudicial, I'm sorry, that it's more, that its probative value outweighs its prejudicial effect, right?

[00:57:04] Speaker 04:
Yes, Your Honor.

[00:57:05] Speaker 09:
And was that finding ever made by the district court in this case?

[00:57:09] Speaker 04:
It wasn't stated on the record.

[00:57:10] Speaker 04:
I think that, you know, it's clear from the record, from the evidence and how it came in, that what, you know, how the reason the district court ruled that it did, and I think this court has said that, you know, explicit findings are not necessarily required where it's obvious from the record, you know, the reason supporting the district court's ruling.

[00:57:30] Speaker 04:
Here, three of the predicate acts, three of the acts that are challenged were actually overt acts charged in the indictment.

[00:57:37] Speaker 04:
So there really was no basis to challenge those crimes on 404B grounds.

[00:57:43] Speaker 04:
As to the other incidents that are challenged, they were all committed as part of the conspiracy and in furtherance of the conspiracy and by co-conspirators.

[00:57:51] Speaker 04:
So again, all of these crimes were committed because of the gang and in furtherance of the gang.

[00:58:00] Speaker 07:
limitation in your view about before and after limited to the clique or not even limited to the clique?

[00:58:09] Speaker 07:
In other words, I'm trying to understand if you're a district court judge and anything can come in, there's no 404B bar, what factors do you apply in a 403 balancing?

[00:58:25] Speaker 04:
Well, first of all, I wouldn't say that anything and everything can come in without offending Four of War B. I think that if it's within the charge conspiracy, it comes in.

[00:58:38] Speaker 08:
Any crime committed anywhere in the world by an MS-13 person between the late 1990s and the present?

[00:58:48] Speaker 04:
Again, I don't think that that's other crimes evidence.

[00:58:51] Speaker 04:
I think that it may be inadmissible because it lacks probative value or it's unduly prejudicial.

[00:58:57] Speaker 09:
But to answer Judge Rogers' question and Judge Katz's question, you're saying that that would not violate 404B for any MS-13 crime evidence from the 1990s to the present.

[00:59:15] Speaker 04:
If that's what's charged in the indictment, which it was, then I think the answer to that has to be no, it wouldn't violate 404B.

[00:59:24] Speaker 04:
The indictment charged a broad conspiracy.

[00:59:29] Speaker 04:
you know, for better for worse, the government was entitled to bring in evidence to prove up the enterprise.

[00:59:34] Speaker 04:
Again, it doesn't mean that all crimes are admissible.

[00:59:37] Speaker 09:
I think it's just the rule under which... So whenever the government charges a conspiracy involving MS-13 or Lacosa Nostra or any other sort of criminal enterprise, they can just

[00:59:51] Speaker 09:
say that the conspiracy involves the entire enterprise and then everything that proves that conspiracy is direct evidence under 404B.

[01:00:05] Speaker 04:
I think under 404b, that sort of evidence, it wouldn't violate 404b.

[01:00:12] Speaker 04:
I'm not trying to suggest that it's admissible.

[01:00:14] Speaker 04:
I think that the admissibility in that instance turns on its probative value versus risk of prejudice.

[01:00:21] Speaker 04:
So I'm not at all suggesting that charging abroad conspiracy sweeps in everything that MS-13 could have possibly done.

[01:00:29] Speaker 07:
We're challenging you, because it sounds like that's exactly what you're arguing.

[01:00:34] Speaker 04:
Your Honor, I don't mean to give that impression.

[01:00:35] Speaker 07:
What I'm trying to understand is we have these federal rules of evidence, but we also have the Supreme Court and old chief making it very clear that the government gets to decide how it wants to prove its case.

[01:00:49] Speaker 07:
So if it wants to over try it, that's the government's prerogative.

[01:00:54] Speaker 07:
The question is, what's left for these rules?

[01:00:57] Speaker 07:
Now I understand your point.

[01:00:59] Speaker 07:
At least I understand your argument about 404B.

[01:01:02] Speaker 07:
I'm trying to understand.

[01:01:04] Speaker 07:
If that's the position the government takes, and it says, of course, there's always 403, I wonder what a district court judge does with that.

[01:01:15] Speaker 07:
Well, Your Honor, I don't know.

[01:01:19] Speaker 07:
What are the limits?

[01:01:20] Speaker 07:
And I haven't seen any cases helping me with the limits, except where a judge goes and just sua sponte says, I think that's too much.

[01:01:29] Speaker 04:
Sure.

[01:01:30] Speaker 04:
I don't know where those limits are.

[01:01:31] Speaker 04:
I think it's dependent on the case.

[01:01:33] Speaker 04:
It's dependent on the evidence.

[01:01:35] Speaker 04:
But we don't confront that in this case.

[01:01:37] Speaker 07:
So in this case, that's what I'm trying to understand.

[01:01:40] Speaker 07:
The evidence, is it all limited to the two clicks?

[01:01:47] Speaker 03:
Yes, Your Honor.

[01:01:49] Speaker 07:
And the only issue now before us is the before and after question.

[01:01:56] Speaker 04:
That is the argument that they raise on appeal.

[01:02:00] Speaker 04:
I think there was, to Judge Wilkins' question to Ms.

[01:02:05] Speaker 04:
Pembroke, there was evidence that Ayala had joined the conspiracy by the age of 15, which would have been in 2006 or 2007.

[01:02:13] Speaker 04:
We know he was 17 at the time he committed the murders charged in this case in 2008.

[01:02:19] Speaker 04:
So he certainly was a member of the conspiracy during these 2008 and 2009 crimes.

[01:02:24] Speaker 04:
Martinez Amaya was brought up in December 2008 to lead the Normandy Click after Gil Bernardes had committed these crimes which are being challenged.

[01:02:35] Speaker 04:
So Martinez Amaya's very presence and leadership of this click is all due to these

[01:02:41] Speaker 04:
other, supposed other crimes that they challenge on appeal.

[01:02:46] Speaker 04:
With respect to Machado Arazo, the evidence, the earliest evidence that I could find was that he was a member of the clique in early 2009.

[01:02:56] Speaker 04:
But again, whether he was a member at the time of the commission of these other offenses is not a reason to exclude them.

[01:03:04] Speaker 04:
These other offenses were admissible because they proved the existence of the enterprise itself.

[01:03:11] Speaker 08:
And again, the probative value of the crimes here was... And they could tend to show that the murders committed by the defendants were part of a pattern.

[01:03:26] Speaker 00:
Certainly.

[01:03:26] Speaker 08:
A real pattern, right?

[01:03:27] Speaker 08:
Weren't one-off.

[01:03:28] Speaker 08:
Or that, even more precisely, that the defendants agreed to commit patterns of murder as opposed to just isolated acts.

[01:03:37] Speaker 04:
Certainly.

[01:03:37] Speaker 04:
And the evidence that's challenged here, these are all crimes that are committed against rival gang members, which is the pattern of racketeering that we established at trial.

[01:03:49] Speaker 08:
So these were in- Or rival gang members or members of the gang who had violated rules.

[01:03:56] Speaker 04:
Exactly.

[01:03:56] Speaker 04:
Exactly.

[01:03:58] Speaker 04:
So these were not offenses that were unrelated in any way to the conspiracy.

[01:04:03] Speaker 04:
They were, in fact, exactly what this conspiracy was intended to do.

[01:04:08] Speaker 04:
The probative value here was certainly not outweighed by any unfair prejudice.

[01:04:14] Speaker 04:
And the crimes here were not particularly prejudicial given the evidence of the very violent acts in which appellants themselves had engaged.

[01:04:25] Speaker 04:
With respect to the extortion instruction,

[01:04:32] Speaker 04:
Any inference here that there was a joint venture of illegal operations is simply not supported by the record.

[01:04:40] Speaker 08:
Several... You don't defend it on the merits, right?

[01:04:45] Speaker 08:
You don't defend that instruction to the extent it omitted the element of wrongfulness.

[01:04:52] Speaker 04:
To the extent it omitted the wrongfulness element, we think it was error.

[01:04:56] Speaker 04:
But we think that appellants can't establish plain error affecting substantial rights because of the very compelling evidence that what in fact was done here was extortion under the law.

[01:05:10] Speaker 04:
Almost every cooperator testified about their CLIC's efforts to collect rent from illegal businesses and others in the community.

[01:05:18] Speaker 04:
I don't suggest that this testimony was vague or that there really wasn't any testimony that these particular clicks collected rent, but that's simply not true.

[01:05:28] Speaker 04:
Avila Melendez himself testified that Machado Arazo collected rent, and Machado Arazo can be heard on a recorded phone call talking about the collection of rent.

[01:05:38] Speaker 04:
Fuentes, Moyeno, Silva, Sarabia, Solorzano, all testified about money extorted from others through threats to kill or injure.

[01:05:46] Speaker 08:
And is that your evidence of that is what I was summarizing from page 31 of your brief?

[01:05:52] Speaker 04:
Yes, Your Honor, from each of their testimony.

[01:05:58] Speaker 04:
With respect to the, I can address the obstruction instruction, if Your Honor's wish, I've exceeded my time, and the double jeopardy issue if the court has questions.

[01:06:08] Speaker 07:
Submit on your brief.

[01:06:10] Speaker 04:
Yes, thank you, Your Honor.

[01:06:16] Speaker 06:
If I can just briefly address a few points the government raised.

[01:06:26] Speaker 06:
First of all, with respect to the participation of appellants in the cliques that committed the crimes at issue, Elia was a member of a different clique.

[01:06:35] Speaker 06:
He was not a member of the clique that was

[01:06:38] Speaker 06:
involved in the late 2008 offenses, the government admits Machado didn't join until 2009.

[01:06:46] Speaker 06:
And while the government would like to allege that my client, Mr. Martinez Amaya's participation in the

[01:06:55] Speaker 06:
the click in this area was due to these other offenses, there is no real clear evidence of that either.

[01:07:02] Speaker 06:
The government also wants to allege that the relevant time period is from 1990 until the present, but RICO must be limited to incidents that occurred at least within a 10-year period.

[01:07:16] Speaker 06:
So we would argue that there is some statutory basis for limiting the conduct that you're talking about to a 10-year period.

[01:07:24] Speaker 06:
The court has asked about whether or not there's any case law to support limiting the time period that's covered by what the government can allege in a conspiracy.

[01:07:37] Speaker 06:
We cited in our brief the Dorsey case, which was a Florida case that

[01:07:43] Speaker 06:
uses a statute that tracks the Rico statute and talks about how the time period there has to be a cutoff as to how far you can go.

[01:07:52] Speaker 06:
And McGill actually does strike certain evidence of other acts as

[01:07:58] Speaker 06:
being too far outside the scope of what was going on to allow it to be admitted.

[01:08:05] Speaker 08:
The predicate murders here, if my notes are correct, occurred between November 2008 and March 2010.

[01:08:17] Speaker 08:
And the other crimes, reputed other crimes about which you're complaining, occurred from July 2008 to

[01:08:28] Speaker 08:
December 2009.

[01:08:30] Speaker 08:
Seems like it's a pretty close fit, at least temporarily.

[01:08:34] Speaker 08:
So the hypotheticals about going back a decade or two are not this case.

[01:08:40] Speaker 06:
I would have to double-check the late 2008 date, but that may be with respect to defendant Elia's conduct, and the other crimes that we're focusing on are crimes that were committed by different clique.

[01:08:57] Speaker 06:
So there's a disconnect there.

[01:09:00] Speaker 06:
in the time frame, the crimes that were committed by the clique of which Mr. Machado and Mr. Martin Isamaya were associated well predated the predicate murders that were alleged in the indictment against them.

[01:09:19] Speaker 08:
On the clique point,

[01:09:23] Speaker 08:
There are possible distinctions between the two cliques at issue.

[01:09:28] Speaker 08:
I get that.

[01:09:28] Speaker 08:
But on the other hand, all of this involves the charge defenses and the putative other acts all involve MS-13 in the greater Washington, D.C.

[01:09:41] Speaker 08:
area.

[01:09:41] Speaker 08:
So again, it seems like there's

[01:09:44] Speaker 08:
fairly precise geographic fit and the hypotheticals about California and El Salvador are not this case.

[01:09:54] Speaker 06:
Well, having lived in DC for a long time, to me, Reston is the other side of the world.

[01:10:00] Speaker 06:
I mean, I never get out there.

[01:10:02] Speaker 06:
It's a ways away.

[01:10:04] Speaker 06:
I don't know if I would agree with that.

[01:10:08] Speaker 06:
But in any event, turning to the government's arguments about the, I'm sorry,

[01:10:21] Speaker 06:
Oh, the court has asked about needing whether this evidence was needed in order to establish a pattern.

[01:10:29] Speaker 06:
We would argue that, again, the testimony of Juan Diaz, which went on for two days about what

[01:10:36] Speaker 06:
MS-13 does and how it operates was more than sufficient to establish any kind of pattern the government needed.

[01:10:42] Speaker 06:
And to get into these specific crimes was really done only for the purpose to inflame and prejudice the jury.

[01:10:50] Speaker 06:
And with respect to the issue of rents, the government has asserted that Machado said he collected rent.

[01:10:58] Speaker 06:
Again, though, I believe that if you look at that testimony, and this is the point I was trying to make,

[01:11:05] Speaker 06:
Machado doesn't explain what collecting rents means.

[01:11:09] Speaker 06:
He doesn't say, I extorted people by collecting rents.

[01:11:13] Speaker 06:
And I could be wrong about that.

[01:11:15] Speaker 06:
But my recollection is the testimony about the phone calls in which rents were referenced didn't articulate what we mean by rents.

[01:11:24] Speaker 06:
And remember now, we're talking about a term of art that's being used by the gang

[01:11:30] Speaker 06:
in Spanish that's being translated.

[01:11:33] Speaker 06:
I mean, I don't know when he's saying rent.

[01:11:35] Speaker 06:
Maybe he's talking about dues.

[01:11:36] Speaker 06:
Maybe he wasn't referring to anything that involved any kinds of threats.

[01:11:40] Speaker 06:
We have no idea.

[01:11:41] Speaker 06:
And unless the court has other questions.

[01:11:46] Speaker 06:
Thank you.

[01:11:54] Speaker 07:
All right, we'll turn to issue three.

[01:12:06] Speaker 07:
may please the court mark eisenstein on behalf

[01:12:18] Speaker 01:
Thank you, Your Honor.

[01:12:19] Speaker 01:
May it please the Court, Mark Eisenstein on behalf of Appellant Yesder Ayala addressing the issue of duress.

[01:12:25] Speaker 01:
We ask this Court to reverse Mr. Ayala's conviction and find that the trial court erred in precluding Mr. Ayala from presenting evidence on the issue of duress and refusing to provide the requested jury instruction.

[01:12:35] Speaker 01:
Mr. Ayala's sole defense at trial was duress, but evidence and argument was never meaningfully made to the jury.

[01:12:42] Speaker 01:
The circumstances of the case and the proffers made by trial counsel were sufficient from which a regional juror could find for Mr. Ayala on the issue of duress and the court erred in precluding both the evidence and the instruction.

[01:12:54] Speaker 01:
Any hints of duress argument trial counsel may have been able to get on the record were of no value to Mr. Ayala without a corresponding jury instruction.

[01:13:03] Speaker 01:
The trial court precluded Mr. Ayala from introducing affirmative evidence

[01:13:07] Speaker 01:
on the issue of duress, and while the jury may have been thinking from a layperson's perspective about the issue of duress, they were unable to act or make any meaningful use of it to the benefit of Mr. Ayala without the requested instruction.

[01:13:21] Speaker 01:
The record demonstrated that Mr. Ayala acted under the threat of imminent harm, and he lacked a reasonable alternative to committing the charged offenses.

[01:13:28] Speaker 01:
There's no need for the evidence used to support the duress argument to be overwhelming.

[01:13:33] Speaker 01:
Weak support is sufficient to allow a defendant to introduce evidence and obtain the requested instruction.

[01:13:40] Speaker 01:
Mr. Ayala faced imminent threat of death or serious bodily injury.

[01:13:44] Speaker 01:
Mr. Ayala was required to strictly abide by MS-13 rules and follow all instructions.

[01:13:49] Speaker 01:
The penalty for not doing so was death.

[01:13:52] Speaker 01:
There was testimony from MS-13 members about how the rules were enforced, what the rules were, and numerous examples of what happens for violating a gang rule.

[01:14:02] Speaker 09:
What about our case law in effect saying that you can't kind of voluntarily place yourself in a precarious circumstance and then claim the rest when that circumstance comes to be essentially?

[01:14:19] Speaker 01:
I don't believe the government's taking that position, but with respect to the case law, I think you have to look at the facts and circumstances of the charged offense and whether it's imminent threat of harm and no reasonable alternative.

[01:14:34] Speaker 01:
I think that may cut against one or two of those factors, but I don't view the case law as a bar of anybody who joins a violent street gang that they are precluded from introducing the issue of the arrest.

[01:14:45] Speaker 08:
No, but you're focusing the duress analysis very late in time, right?

[01:14:54] Speaker 08:
He's in the gang, the hit's been ordered on someone, he learns about the hit, and you say, well, at that point he has no choice.

[01:15:03] Speaker 08:
Your Honor, I believe.

[01:15:07] Speaker 08:
There's also testimony that he's been in the gang for two years.

[01:15:10] Speaker 08:
He chooses to join the gang, and he's in for two years before the murders happen, which raises both Judge Wilkins' point about voluntarily placing herself into a situation that becomes duressful, if that's a word,

[01:15:29] Speaker 08:
And the Prong 2 of our case law, which says if you have opportunities to go to the police or seek help or whatever, that forecloses the defense.

[01:15:45] Speaker 01:
The first issue, I believe, this is not a case where Mr. Ayala simply knew of the green light and he saw Mr. Membrano Zelaya walking down the street and he decided, I have to act, I'm going to act.

[01:15:57] Speaker 01:
If you look at the facts and circumstances of the offense, there was a number of MS-13 members in an apartment building.

[01:16:01] Speaker 01:
Another member, who I believe there's testimony was higher up than Mr. Ayala, said, we found Mr. Zambrano Zelaya.

[01:16:08] Speaker 01:
We're going to execute the green light.

[01:16:09] Speaker 01:
And Mr. Silva, that individual, assigned roles.

[01:16:12] Speaker 01:
He said, you, Mr. Ayala, you're responsible for this part.

[01:16:15] Speaker 01:
You, Mr. Rudy Martinez, you're responsible for this part.

[01:16:18] Speaker 01:
We're going to go downstairs and act.

[01:16:19] Speaker 01:
So I think under those circumstances, Mr. Ayala, when he was given the instruction, you need to go downstairs and stand.

[01:16:25] Speaker 08:
And I'm willing to assume for the sake of argument that at that point in time,

[01:16:30] Speaker 08:
he might have a defense, but it's the wrong point in time because it ignores everything your client had done in the prior two years to get himself in that situation.

[01:16:45] Speaker 01:
But I believe you need to focus on the two charged conducts or the two murders.

[01:16:50] Speaker 01:
So I believe the relevant focus, respectfully, is when the crimes are happening, whether Mr. Ayala, at that point, was under imminent threat of harm.

[01:16:59] Speaker 08:
Even if his decision to join MS-13 a couple years later was entirely voluntary?

[01:17:10] Speaker 01:
Your Honor, I think you need to look at the circumstances and all the facts and circumstances.

[01:17:14] Speaker 01:
I think Mr. Ayala presents a unique case with respect to whether his joining the game was voluntary.

[01:17:21] Speaker 01:
There was testimony or proper testimony that Mr. Ayala was young.

[01:17:24] Speaker 08:
No, I understand.

[01:17:25] Speaker 08:
We can talk about that separately, but the theory you just articulated would give a defense to someone

[01:17:32] Speaker 08:
even to someone who voluntarily joins the gang and knows, I'm going into this gang that has these rules and I opt into that and then I find myself in a tough position a couple years later.

[01:17:49] Speaker 01:
I think there's a distinguishing factor, and there's a question in the record, or through proper testimony, about whether Mr. Ayala voluntarily joined the gang.

[01:17:57] Speaker 08:
I understand, but aside that, I'm testing your claim that we, in assessing whether or not the murders were committed under duress, the relevant time frame is right at the end when he learns of the green light, and you say at that point, has no choice.

[01:18:21] Speaker 01:
Yes.

[01:18:22] Speaker 08:
It seems like you're starting the story much too late.

[01:18:27] Speaker 01:
But I believe given the focus is on the imminency, I think that's where the focus needs to be.

[01:18:33] Speaker 09:
Was the evidence that that was the first that he learned of this particular green light?

[01:18:41] Speaker 01:
No, Your Honor.

[01:18:41] Speaker 01:
I believe there's testimony that he previously learned of the green light.

[01:18:44] Speaker 01:
and he knew about the green light, but it was on that evening when he was instructed to act.

[01:18:50] Speaker 01:
We think there's a distinction between merely knowing of the green light and the gang rule saying you need to carry out the green light and being directed and ordered minutes before the act occurs.

[01:18:59] Speaker 09:
But how do you then respond to, I guess, the government's argument that

[01:19:06] Speaker 09:
you can't if you know about the green light and you know that you're expected to act immediately if you see this person or else you'll be killed then you can't your obligation if you know that that's the way that it works your obligation to withdraw from this

[01:19:29] Speaker 09:
is earlier and not when, oh, all of a sudden, you come upon the person who's been in green light.

[01:19:38] Speaker 01:
And I guess that gets to the question, the second element, about whether Mr. Ayala or the individual has a reasonable alternative.

[01:19:43] Speaker 01:
From Mr. Ayala's perspective, he had no reasonable alternative.

[01:19:46] Speaker 01:
He believed he was in the gang and he needed to follow orders, otherwise he'd be killed.

[01:19:51] Speaker 01:
He needed to look no further than the circumstances of Mr. Membrano Zelaya's killing.

[01:19:55] Speaker 01:
He was an MS-13 member in El Salvador.

[01:19:57] Speaker 01:
He moved to the U.S.

[01:19:58] Speaker 01:
and he tried to disassociate himself with the gang.

[01:20:00] Speaker 01:
He tried to remove his tattoos.

[01:20:02] Speaker 01:
He tried to stop hanging out with gang members.

[01:20:04] Speaker 01:
And simply for doing so, he was subject to death.

[01:20:07] Speaker 01:
A green light was issued and he was subject to death simply for doing that.

[01:20:11] Speaker 01:
So from Mr. Ayala's perspective, he believed they had no reasonable legal alternative

[01:20:16] Speaker 01:
He didn't believe he can go to the police.

[01:20:19] Speaker 01:
That wasn't a reasonable outcome because he knew exactly what would happen.

[01:20:21] Speaker 01:
The gang rules mandated that he would be killed for failing to follow through an order.

[01:20:26] Speaker 01:
He'd be killed for going to the police.

[01:20:28] Speaker 01:
And he, from his perspective, had no reasonable alternative.

[01:20:31] Speaker 08:
Can I ask a different question, which is all of the thrust of your argument in your brief and here is a claim of duress to a murder.

[01:20:45] Speaker 08:
I thought it was black letter law that there is no duress defense to murder.

[01:20:50] Speaker 01:
Your Honor, I believe the issue of duress can go to the element and whether the government can prove the elements.

[01:20:57] Speaker 01:
There's a case from the central district of Florida, United States v. Slocum, which is not in the briefing schedule, but I happen to look at it in preparing for today, which the issue came up about whether murder is a defense to murder and aid a racketeering and whether... You should give us the site.

[01:21:15] Speaker 01:
Oh, I apologize, Your Honor.

[01:21:16] Speaker 01:
The site to that.

[01:21:17] Speaker 01:
486 F SUP 2nd 1104.

[01:21:20] Speaker 01:
And I believe that case says that the issue of duress can negate or prevent the government from proving malice.

[01:21:28] Speaker 08:
Well, sure, but that's not what you're trying to do here.

[01:21:32] Speaker 08:
I mean, the mens rea of the crime is premeditation, voluntary action.

[01:21:39] Speaker 08:
I assume it's something like that.

[01:21:41] Speaker 08:
You're using duress as an affirmative defense to say, yes, it was premeditated and knowing and everything else.

[01:21:48] Speaker 08:
defendant should go off scot-free because he was forced to do it.

[01:21:53] Speaker 01:
I believe it goes directly specifically to the issue of malice and about whether the government's evidence can prove malice.

[01:21:59] Speaker 01:
And if not, then I don't think the murder conviction.

[01:22:01] Speaker 09:
So below it was presented that way, that essentially we want this defense so that we can try to try this down to a manslaughter?

[01:22:12] Speaker 01:
I don't believe it was ever, it was clear from the record what trial counsel's argument was, but I don't think it was ever fleshed out.

[01:22:18] Speaker 08:
I mean, that's certainly not how you've presented it here.

[01:22:22] Speaker 08:
Where your your claimed error is failure to get instructions on the affirmative defense, which has these two elements that we've been talking about.

[01:22:35] Speaker 08:
in terms of the error you're claiming on appeal is failure to give you the affirmative defense of duress not that you were somehow prevented from litigating from defending against the government's proof of whatever mens rea requirement attached to the murder convictions but i believe that's part of the argument is that trial court

[01:23:03] Speaker 01:
also declined to allow Mr. Ayala to prevent witnesses from five different people about the issue of duress.

[01:23:10] Speaker 01:
And proffers were made, and the trial court declined to allow that.

[01:23:14] Speaker 01:
The government cites the Noe case, which I think has distinguishable facts, but even in that case where the individual went to California for months and was away from the person they were claiming duress, they were able to present the evidence, and then after the evidence was presented, the trial court found that the instruction would not be given.

[01:23:34] Speaker 08:
We don't believe that the... Sorry, the predicate murder offense is under the D.C.

[01:23:43] Speaker 08:
Code, and what's the mens rea element?

[01:23:47] Speaker 08:
It's malice.

[01:23:51] Speaker 01:
I believe it's the same for the... Yes, the relevant mens rea is malice.

[01:23:57] Speaker 08:
And you're saying that this evidence that you proffered would tend to negate malice?

[01:24:04] Speaker 08:
even if it were not an affirmative defense it would tend to negate the malice element of the offense.

[01:24:11] Speaker 01:
Yeah, to prevent the government from proving that element.

[01:24:14] Speaker 01:
And we don't believe that allowing this instruction would open the floodgates and allow every defendant who's a member of MS-13 or a member of any gang to claim duress.

[01:24:24] Speaker 01:
Here, Mr. Ayala's youth, his low IQ, and his susceptibility to the influence of the gang is a unique circumstance, which I don't think would be repeated in many circumstances, and also the fact that Mr. Ayala didn't just know that

[01:24:38] Speaker 01:
green light.

[01:24:39] Speaker 01:
He was ordered to carry out and I believe I'm well over my time.

[01:24:42] Speaker 01:
So unless the court has any questions.

[01:24:45] Speaker 01:
Thank you.

[01:24:56] Speaker 07:
Council for the government.

[01:24:58] Speaker 04:
The district court did not abuse its discretion or did not err in denying the duress instruction here.

[01:25:03] Speaker 04:
Mr. Ayala failed to proffer any evidence whatsoever that he acted under an unlawful threat of imminent death or serious bodily injury.

[01:25:11] Speaker 04:
And most of the evidence showed veiled threats of future unspecified harm, which courts have held is insufficient.

[01:25:19] Speaker 04:
He's never proffered that a specific threat was actually made to him.

[01:25:22] Speaker 04:
The only specific threats he proffered were made to his mother and sister.

[01:25:26] Speaker 04:
after he was arrested.

[01:25:28] Speaker 04:
And he failed to show that he had no reasonable legal alternative to committing the crimes.

[01:25:34] Speaker 04:
He was a member of the gang for two years.

[01:25:37] Speaker 04:
He had every opportunity to seek assistance from law enforcement or from others or to remove himself from the gang.

[01:25:44] Speaker 09:
Isn't it a little rich for the government to argue that there was no real threat to him when the whole theory of your case and the whole theory

[01:25:53] Speaker 09:
and all your evidence about how MS-13 works, is that if you don't follow the gang rules, you get killed?

[01:26:03] Speaker 04:
I'm not suggesting that there wasn't pressure on gang members to commit crimes, but to present duress as a legal defense, Ayala had to

[01:26:13] Speaker 04:
satisfied the standard, which was showing an imminent threat, specific threat of harm to himself.

[01:26:19] Speaker 04:
So while he may have been pressured like others to commit crimes, as a legal matter, he simply did not meet the standard for duress.

[01:26:28] Speaker 04:
This court has found in even more pressing circumstances that duress hasn't been met.

[01:26:34] Speaker 04:
In Jenrett, there was a two-day period of time in which the defendant could have acted.

[01:26:40] Speaker 04:
So the fact that he may have felt pressured by the norms of the gang to commit crime simply is not enough legally to warrant a duress instruction.

[01:26:55] Speaker 07:
So even accepting Judge Wilkins' point about the whole theory of your case, does he still lose on no reasonable alternative?

[01:27:07] Speaker 04:
Yes, he still loses on no reasonable alternative because first of all, he had plenty of time to seek assistance.

[01:27:16] Speaker 04:
And second of all, even if we assume that in the moment he was required to execute the green light against the murder victims, the evidence was that a green light wouldn't issue against a gang member without investigation and deliberation.

[01:27:35] Speaker 04:
The suggestion that he was under the threat of imminent death in that moment simply is not borne out by the evidence in the case.

[01:27:44] Speaker 04:
Green lights here were issued by top leaders in El Salvador, trickled down after some amount of deliberation.

[01:27:52] Speaker 04:
Any threat that he might have felt to his life would have only come after the fact.

[01:28:01] Speaker 04:
you know, in the circumstances of this case where he was an active leader of a clique and in fact, you know, had threatened others to commit crimes, there simply wasn't evidence that he himself was some helpless victim of the gang and acted under duress to commit the offenses here.

[01:28:22] Speaker 04:
In any event, he was able to present more or less his duress defense through cross-examination of every single cooperating witness where he elicited that the penalty was death for failure to comply with gang rules.

[01:28:37] Speaker 04:
He argued extensively in closing argument that he acted under duress.

[01:28:43] Speaker 04:
And so the jury was fully aware of his theory of the case.

[01:28:46] Speaker 08:
How do you respond to your friend's argument that even if he weren't entitled to the affirmative defense, the evidence was improperly excluded because it tended to negate the malice element that you had to prove?

[01:29:05] Speaker 04:
Well, I don't think that he was prevented from negating that.

[01:29:10] Speaker 04:
In fact, he quite successfully presented that theory that he lacked malice, that he lacked the specific intent to commit these crimes through his cross-examination of the cooperating witnesses.

[01:29:23] Speaker 04:
So I think that the court's rulings here didn't prevent him from putting on evidence negating the intent required for these crimes.

[01:29:34] Speaker 04:
The jury was well aware that his theory was that he did not commit these crimes because he wanted to, but rather because the gang told him to.

[01:29:45] Speaker 09:
Did the court give a second degree murder instruction or a manslaughter instruction for the murder of Membrano Zelaya?

[01:30:01] Speaker 04:
I don't recall if the court gave a second-degree murder instruction for that offense.

[01:30:05] Speaker 04:
I know the court gave that instruction for the Sanchez murder.

[01:30:10] Speaker 09:
Because he was convicted of second-degree insanity.

[01:30:12] Speaker 04:
Exactly.

[01:30:13] Speaker 08:
I think they all did.

[01:30:14] Speaker 08:
I mean, on the verdict form, each of them has the choice, first or second.

[01:30:19] Speaker 04:
Okay.

[01:30:20] Speaker 04:
Yeah, I don't have a specific recollection at this time, but the fact that they did find him guilty.

[01:30:26] Speaker 09:
But manslaughter, absence of malice, would require finding a guilt on manslaughter as opposed to second-degree murder.

[01:30:36] Speaker 09:
I mean, malice is an element of second-degree murder.

[01:30:39] Speaker 04:
That's true, but in finding him guilty of the lesser included offense, the jury necessarily found that he did not have the intent to commit the first degree murder charge.

[01:30:52] Speaker 04:
So I mean, I think if we're going to read anything from the jury's findings, it's that

[01:30:56] Speaker 04:
They bought into his theory that he did not act with premeditation and deliberation and specific intent.

[01:31:07] Speaker 09:
But the jury was never told or given the option that they could find that this pressure that he was under could be sufficient or it's up to them to determine

[01:31:24] Speaker 09:
whether that raises a reasonable doubt as to whether the element of malice is present.

[01:31:31] Speaker 09:
And if so, then they have the option of voluntary manslaughter.

[01:31:37] Speaker 04:
No, the jury was not told that.

[01:31:39] Speaker 04:
I mean, the jury was instructed that they had to find

[01:31:41] Speaker 04:
each element of the offense, including the mens rea element.

[01:31:46] Speaker 04:
And in this case, there simply wasn't support in the record for the duress instruction.

[01:31:52] Speaker 04:
There wasn't support in the record for... And I don't believe that a manslaughter instruction was requested either.

[01:32:01] Speaker 04:
But again, there was simply no support in the record here that

[01:32:04] Speaker 09:
Ayala acted out of coercion in committing these guys my next question because I mean you could ask for a manslaughter instruction without getting a duress instruction right right you can I mean Yeah, ask for a manslaughter lesser included.

[01:32:20] Speaker 09:
Yes, your honor But you don't believe that they did

[01:32:23] Speaker 04:
I don't believe that they did.

[01:32:24] Speaker 07:
I was going to ask you.

[01:32:26] Speaker 07:
So your reading of the record here is that the proffer of the expert was simply, not simply, but only in connection with the affirmative defense.

[01:32:38] Speaker 04:
That's how it was presented by Ayala.

[01:32:40] Speaker 04:
That's how it was proffered by Ayala, that it went to his duress defense.

[01:32:44] Speaker 07:
But was this argument ever made to the district court about negating an element

[01:32:52] Speaker 04:
No, Your Honor.

[01:32:53] Speaker 04:
I believe that it was all in the context of presenting duress as a defense.

[01:32:57] Speaker 07:
And is that something that's presented here at oral argument for the first time?

[01:33:02] Speaker 04:
I believe so, Your Honor.

[01:33:05] Speaker 08:
All right.

[01:33:05] Speaker 08:
Thank you.

[01:33:05] Speaker 08:
Can I just ask one more question?

[01:33:06] Speaker 08:
I'm curious why the government didn't argue that duress is not a defense to murder.

[01:33:12] Speaker 08:
Do you agree with that proposition?

[01:33:14] Speaker 04:
Your honor, I'll be quite honest.

[01:33:16] Speaker 04:
I did not think of it.

[01:33:17] Speaker 04:
I in briefing this I looked at the court's cases on duress and it didn't occur to me I'm happy to brief it for the court if the court wishes There are no further questions we'll rest on our brief

[01:33:48] Speaker 01:
With respect to the question about whether this argument was ever meaningfully made to the jury and I guess whether there's harmless error, the way I think about this case is allowing somebody or allowing trial counsel to argue duress through cross-examination and arguing it through closing without the instruction is similar to finding, or in a civil case, allowing a defendant to argue contributory negligence to the jury without a corresponding instruction.

[01:34:13] Speaker 01:
The jury would not know what to do.

[01:34:16] Speaker 01:
They wouldn't know, like Your Honor Judge Wilkins pointed out, how to use this evidence.

[01:34:20] Speaker 01:
Does it negate an element?

[01:34:21] Speaker 01:
Should we find on a lesser included offense?

[01:34:23] Speaker 01:
And the fact that one of the convictions was ultimately secondary murder, I don't believe that is proof that this evidence was meaningfully made and effectively made to the jury.

[01:34:33] Speaker 09:
Do you dispute the government's representation that it was never submitted below, that you were trying to negate an element, and that you didn't request a lesser included instruction for manslaughter?

[01:34:47] Speaker 01:
My review of the record did not show that there was a request for a manslaughter, lesser included offense.

[01:34:54] Speaker 01:
And I think the point about the green light, I think the distinguishing fact here is that Mr. Ayala just didn't

[01:35:02] Speaker 01:
he was instructed to act on the green light minutes before the murder occurred.

[01:35:07] Speaker 01:
And there was testimony at trial that the failure to follow through, an individual who didn't follow through on an instruction to carry out a green light was subject to death and the death of their family.

[01:35:16] Speaker 01:
So under those circumstances, Mr. Ayala had no choice but to act.

[01:35:20] Speaker 01:
Our understanding is that the reasonableness or the factor or the relevant standard with respect to reasonable miss is whether a person of reasonable firmness in Mr. Royale's situation would believe he or she had no reasonable alternative but to act.

[01:35:34] Speaker 01:
And I believe under these circumstances, Mr. Royale's thinking or Mr. Royale's position was reasonable and should have been a fact question that should have went to the jury.

[01:35:42] Speaker 07:
So was that the nature of the expert testimony that he proffered?

[01:35:50] Speaker 01:
I believe that Dr. DeClew was the proper expert, and one of the things he was going to testify to is Mr. Ella's youth, his low IQ, and his susceptibility to gang influence.

[01:36:04] Speaker 01:
So I think it would go to the reasonableness of whether he was reasonably

[01:36:08] Speaker 01:
in his belief that he had no other alternative.

[01:36:11] Speaker 01:
And I believe that those factors, I think, would have bore fruit for the same reason that the trial court in sensing Mr. Ayala considered his youth and considered all these factors in fashioning an appropriate sentence other than life.

[01:36:23] Speaker 07:
So the expert would have testified that he was young and that youth

[01:36:33] Speaker 07:
unmeasured decisions and lack mature judgment.

[01:36:39] Speaker 07:
That's what I thought that proffer was, not the next step, that even though having been in this gang for a number of years, upon being confronted with the green light situation, he simply lacked the mental capacity

[01:37:03] Speaker 07:
to do anything but go along and would not have understood that when the detective suggested he had an alternative, he was simply too young to appreciate that such an alternative could exist.

[01:37:21] Speaker 07:
I'm trying to understand this.

[01:37:22] Speaker 07:
When I read the district court's opinion on waiver,

[01:37:26] Speaker 07:
You know, he may be young, but he's a sophisticated dude to the extent he is.

[01:37:31] Speaker 07:
Now, the expert was going to talk about he has an IQ of 77.

[01:37:35] Speaker 01:
Yes, Your Honor.

[01:37:38] Speaker 01:
I don't think the position is that he lacked the mental capacity to understand that he had a choice.

[01:37:43] Speaker 01:
I think it goes to whether it was reasonable or whether there's a reasonable alternative somebody in Mr. Yala's shoes believed that he had a reasonable alternative but to act.

[01:37:53] Speaker 07:
And the expert was simply going to talk about his youth.

[01:37:56] Speaker 07:
Is that correct?

[01:37:57] Speaker 01:
Correct.

[01:37:58] Speaker 01:
I believe you talk about his youth, and I believe you talk about probably the same thing that were in the privacy of cases from Roper up to Miller about why youthful offenders are different.

[01:38:07] Speaker 01:
So for the same reason, the development of the brain and decision-making process, I believe that also goes to whether there's an imminent threat of harm and about whether Mr. Ayala lacked a reasonable alternative.

[01:38:19] Speaker 07:
Thank you.

[01:38:21] Speaker 01:
Thank you.

[01:38:32] Speaker 07:
All right, we'll hear issue four.

[01:38:35] Speaker 02:
If it please the court, Thomas Corcoran.

[01:38:38] Speaker 02:
I'm here on behalf of Machado Arrazo, along with Fabulous Cura West.

[01:38:43] Speaker 02:
And I'll be making two arguments on behalf of Machado Arrazo and Martinez Amaya.

[01:38:50] Speaker 02:
The first is the extra 10 year sentence pursuant to 924C3 for carrying a firearm during a crime of violence.

[01:39:00] Speaker 02:
Pursuant to Supreme Court precedent, we have the correct approach is the categorical approach.

[01:39:06] Speaker 02:
And that is here whether ordinary people, quote unquote, ordinary people will think a crime involves violent physical force based upon its statutory definition, not what the guy did.

[01:39:19] Speaker 02:
If a prior conviction is based on a statute that in its least violent application does not involve violent physical force, it does not qualify as a prior conviction involving violent physical force.

[01:39:33] Speaker 02:
Maryland first degree murder, which is the murder here, can be done by poison.

[01:39:41] Speaker 02:
or various other things, other kinds of premeditated murder such as trickery or withholding life-saving medication or sustenance.

[01:39:52] Speaker 02:
The weight of authority now supports Machado and Amaya's position here.

[01:39:57] Speaker 02:
U.S.

[01:39:58] Speaker 02:
v. Middleton, a Fourth Circuit case decided just six weeks ago, ruled that Torres Miguel, the case on which we have chiefly relied and on which the government argued had been superseded by Irby, was the controlling case.

[01:40:12] Speaker 02:
Under Torres Miguel, a crime can result in death or serious injury without involving the use of physical force.

[01:40:22] Speaker 02:
Accordingly, Maryland first degree murder, which can be done by nonviolent means, does not involve violent physical force.

[01:40:30] Speaker 02:
The government relies on this court's January decision in the United States versus Benbow.

[01:40:36] Speaker 02:
I mean, this is the supplementary authority you received, I think, yesterday, maybe.

[01:40:43] Speaker 02:
In addition to being non-presidential, the decision is unpersuasive because it misinterprets Castleman.

[01:40:49] Speaker 02:
Castleman addressed the common law concept of force, which encompassed even the slightest offensive touching.

[01:40:56] Speaker 02:
That is not 924C, violent physical force.

[01:41:00] Speaker 02:
Finally on this issue, last Friday, off April 6, the Supreme Court granted certiorari in the case of Stokelyng versus United States, 11th Circuit case.

[01:41:13] Speaker 02:
The issue is whether an offense which has been interpreted by state appellate courts

[01:41:18] Speaker 02:
to require only slight force is categorically a violent felony under the Armed Career Criminal Act.

[01:41:26] Speaker 02:
That is the granted certiorari in this case.

[01:41:29] Speaker 02:
So it appears that they're not going to change their views about the categorical force, excuse me.

[01:41:38] Speaker 02:
The elements of plain error pursuant to this court's decision and hunt are met.

[01:41:43] Speaker 02:
Given Middleton's adoption of Taurus Miguel, there's now plain error.

[01:41:49] Speaker 02:
Under Henderson, it is sufficient that the error is plain at the time of direct review.

[01:41:54] Speaker 02:
And quite clearly, it affects the appellants of substantial rights.

[01:42:00] Speaker 02:
10 years in prison is a substantial thing.

[01:42:04] Speaker 02:
Also, the failure to argue below was not to yield a tactical advantage.

[01:42:09] Speaker 02:
Samuel Johnson was struck down.

[01:42:11] Speaker 02:
The ACCA's residual clause was decided three days after Machado and Amaya were sentenced.

[01:42:19] Speaker 02:
and other decisions such as Middleton have made the present argument more convincing.

[01:42:24] Speaker 02:
And now I'd like to turn to cruel and unusual punishment, which I realize is a bit of not a likely winner, but in any event.

[01:42:37] Speaker 02:
First, in Miller in 2012, the court relied on, quote, evolving standards of decency that marked the progress of maturing society in ruling that life without parole for juvenile was a cruel and unusual punishment.

[01:42:52] Speaker 02:
Life without a significant chance for parole is now not allowed in the European Union after the 2013 Venter versus United Kingdom decision.

[01:43:03] Speaker 02:
The question

[01:43:04] Speaker 02:
here for my clients is how we get past the Harmelin 1991 concurrence.

[01:43:12] Speaker 02:
It's only three-judge concurrence, which the court in Graham in 2010 ruled was a controlling decision.

[01:43:20] Speaker 02:
If the First Circuit in Rivera, the case I brought to your attention on Friday, I think, could not get past Harmelin, how can this court?

[01:43:30] Speaker 02:
The initial factor in Harmelin

[01:43:32] Speaker 02:
The factor to be considered before comparisons to other sentences is, quote, whether the threshold comparison leads to an inference that grows disproportionality.

[01:43:45] Speaker 02:
Well, what makes a sentence grossly disproportional?

[01:43:50] Speaker 02:
Quote, the evolving standards that mark the progress of a maturing society, and Justice Kennedy wrote, if no civilized democratic state permitted life without parole, that would make life without parole seem grossly disproportional.

[01:44:07] Speaker 02:
Vinter is arguably such a big change, and Harman,

[01:44:11] Speaker 02:
decided in 1991 was decided 18 years ago, that is a generation ago.

[01:44:17] Speaker 02:
Finally, as to El Salvador, you've already heard this, MS-13 is more or less in charge there, and refusing to join the gang there means death.

[01:44:27] Speaker 02:
This is the same sort of situation that motivated the court in Miller to rule that life sentences for juveniles was cruel and unusual punishment.

[01:44:36] Speaker 02:
As the court wrote in Miller, children are more vulnerable and have limited control over their environment and cannot extricate themselves from crime-producing settings.

[01:44:46] Speaker 02:
This is precisely the case for Majado and Arazo here in El Salvador.

[01:44:51] Speaker 02:
And now here, it was Joy and Ms.

[01:44:53] Speaker 02:
13, who are very likely to get killed.

[01:45:00] Speaker 02:
If there are no questions.

[01:45:01] Speaker 02:
Thank you.

[01:45:01] Speaker 02:
Thank you.

[01:45:05] Speaker 07:
Here from the government.

[01:45:11] Speaker 04:
Maryland first degree murder qualifies as a crime of violence under both the force clause and the residual clause of 924C.

[01:45:19] Speaker 04:
Murder qualifies under the force clause because it satisfies the Johnson definition of violent force.

[01:45:25] Speaker 04:
It requires force capable of causing physical pain or injury to another.

[01:45:30] Speaker 04:
Appellant's suggestion that Castleman is inapplicable is simply not supported.

[01:45:36] Speaker 04:
This court in rhetoric looked to the reasoning of Castleman

[01:45:39] Speaker 04:
in considering whether armed robbery was a violent felony and relied on Castleman's distinction between direct and indirect uses of force.

[01:45:49] Speaker 04:
That distinction requires the rejection of appellant's contention that a murder by poison doesn't require violent force.

[01:46:00] Speaker 08:
Statute requires physical force.

[01:46:06] Speaker 08:
The Supreme Court distinguished physical from intellectual and moral, so what about a murder convicted through one of those means?

[01:46:20] Speaker 04:
Through intellectual force?

[01:46:22] Speaker 08:
Yeah, someone induces a victim to step on a ledge by saying that it's secure or whatever, and the person falls to his death.

[01:46:36] Speaker 04:
I wouldn't categorize that as a lack of physical force.

[01:46:41] Speaker 04:
I think that that goes to the distinction that Castleman made between direct and indirect uses of force.

[01:46:47] Speaker 04:
I mean, the case where, I mean, it would be the same with, you know, the use of poison or, you know, exposing a baby to, you know, the elements.

[01:46:57] Speaker 08:
This is in Johnson.

[01:46:59] Speaker 08:
They say some cases involve physical force, and other cases involve intellectual or emotional force.

[01:47:07] Speaker 08:
And I hear what you're saying, but it just seems to be fighting that dichotomy which the court gave us.

[01:47:14] Speaker 04:
I think Johnson also specifically recognized murder as a quintessential crime of violence.

[01:47:26] Speaker 04:
Although force may be applied in different ways, I think it's incorrect to conclude that violent force or physical force is not used.

[01:47:38] Speaker 04:
It's simply, again, this Castleman distinction between how force is applied rather than the nature of the force itself.

[01:47:46] Speaker 08:
I'm not hung up on violent force versus mere touching.

[01:47:50] Speaker 08:
I'm more worried about the physical versus intellectual part of Johnson.

[01:47:57] Speaker 04:
Again, Your Honor, I really think, though, that even an intellectual... I don't see how it's possible to commit a murder through purely intellectual force.

[01:48:06] Speaker 08:
I would have thought that that involves what we've described as excessive legal imagination, except Justice Scalia gave it to us.

[01:48:16] Speaker 04:
Well, I don't think that takes it out of the realm of excessive legal imagination.

[01:48:22] Speaker 04:
But it certainly, I think, is not what one would consider typically to be a commission of murder.

[01:48:34] Speaker 04:
When we look to outside the realm of those kind of imaginative hypotheticals, and as this court cautioned in rhetoric,

[01:48:43] Speaker 04:
murder pure and simple, first degree murder pure and simple, is again the quintessential crime of violence.

[01:48:54] Speaker 09:
Turning to the... Can I ask this question?

[01:48:57] Speaker 09:
Let's suppose the defendant knows that someone has a severe nut allergy and that person says, you know, does this

[01:49:09] Speaker 09:
cake have any nuts in it and the defendant knows that it does but says no it doesn't and the victim eats some of the cake and dies and couldn't that person be convicted of first degree murder under the Maryland statute?

[01:49:28] Speaker 04:
I believe so your honor it would be an intentional killing I suppose in that instance

[01:49:33] Speaker 04:
The nuts would be akin to poison to the person.

[01:49:36] Speaker 09:
So your argument is that that was a use of physical force?

[01:49:43] Speaker 04:
Yes, it is the use of physical force.

[01:49:45] Speaker 04:
Again, as the court explained in Castleman, it's the application of the killing agent to the person, even if it's by indirect means, that is the use of force.

[01:49:57] Speaker 04:
So poison is a forceful element.

[01:49:59] Speaker 09:
Even if the defendant in that case didn't bake the cake, it was baked by somebody else from the office, but the defendant knew what was in the cake.

[01:50:10] Speaker 09:
let things happen the way that they happened because they wanted that person dead.

[01:50:16] Speaker 04:
I think if the defendant is the person who knows and knowingly and intentionally puts that person at the path of death, then yes, that person would be liable for committing a violent felony.

[01:50:30] Speaker 09:
The person who baked the cake, if there's no showing of intention there or knowledge, I think... The defendant is the one that I'm talking about who didn't bake the cake, who just answered the question falsely.

[01:50:45] Speaker 09:
Didn't bring the cake.

[01:50:48] Speaker 09:
Nobody else brought the cake.

[01:50:49] Speaker 09:
But the defendant answered the question falsely.

[01:50:53] Speaker 09:
So where would the defendant's use of physical force be?

[01:50:57] Speaker 04:
Well, it's intentionally placing this person in the path of a force, which would be the nuts, the poison.

[01:51:07] Speaker 04:
And that's exactly what Castleman explained.

[01:51:09] Speaker 09:
You didn't tell him to eat the cake.

[01:51:11] Speaker 09:
I'm sorry, you're on.

[01:51:11] Speaker 09:
The victim wanted the cake.

[01:51:12] Speaker 09:
The victim loves cake.

[01:51:16] Speaker 04:
I love cake, too, but if somebody knows I have a nut allergy and it's severe enough to kill me and knows that cake has nuts and doesn't stop me from eating it, I would call that an intentional killing by use of force.

[01:51:32] Speaker 04:
And the force, again, it's an indirect application of force, but it doesn't mean that it wasn't violent force.

[01:51:39] Speaker 04:
It's not, for example, as Castleman explained, it's not, you know, when somebody kills with a gun, one could argue that the pulling of the trigger is not the application of force, but I don't think anyone would argue that shooting somebody with a gun is not a use of violent force.

[01:52:00] Speaker 04:
I think it's the same.

[01:52:03] Speaker 04:
how the force is applied, it's what is the nature of the force used, and a poison is a violent force that leads to a killing.

[01:52:13] Speaker 04:
For all of those reasons, we

[01:52:15] Speaker 04:
we contend that Castleman is applicable and that first degree premeditated murder is clearly a crime of violence.

[01:52:24] Speaker 04:
I can talk about the Eighth Amendment issue or if there are no questions, I'll rest on our brief.

[01:52:31] Speaker 04:
I would ask this court to affirm the judgment of the district court.

[01:52:46] Speaker 02:
Well, may it please the court?

[01:52:47] Speaker 02:
Looking at the specific facts of Redrick, the court refused to accept that armed robbery by poison was a sufficiently possible way of killing somebody, that it escaped the categorical approach there.

[01:53:12] Speaker 02:
But murder by poison is a lot more probable than armed robbery by poison.

[01:53:19] Speaker 02:
And finally, I just want to emphasize one point.

[01:53:23] Speaker 02:
The issue here is whether, quote, ordinary people will think a crime involves violent physical force.

[01:53:30] Speaker 02:
I don't think ordinary people would think.

[01:53:33] Speaker 02:
Think that first degree murder by boys violent physical force by poison involves violent physical force or under the hypotheticals by Judge Wilkins.

[01:53:45] Speaker 02:
Are there any anything else?

[01:53:48] Speaker 07:
Thank you.

[01:53:49] Speaker 07:
Thank you your honor Well, we will take the case under advisement I want to express the court's appreciation to appointed counsel very helpful to the court in argument and groups.

[01:54:02] Speaker 07:
Thank you