[00:00:01] Speaker 04:
I'm for the defendant appellants, the movement's below.

[00:00:28] Speaker 04:
I'll judge by the 10 minutes per side that of the many issues presented, you're going to focus on one, maybe two.

[00:00:34] Speaker 04:
But I would like to briefly describe probably an issue that you're perhaps not going to get to, which is the legal errors below in the decision, which presupposes we have jurisdiction to get there, and the issue of misconduct.

[00:00:52] Speaker 05:
You can do this in any order you want, but I would like to hear about jurisdiction at some point.

[00:00:59] Speaker 04:
OK.

[00:00:59] Speaker 04:
I think we only have a little bit of time, so we should go straight there.

[00:01:02] Speaker 01:
And in particular on that point, why the distinction between with prejudice and without prejudice has any bearing on the particular relief you're seeking, which goes to the presence or not of probable cause?

[00:01:22] Speaker 04:
two movements provided affidavits that describe how the cloud of the accusations against them are injuring them reputationally, Mr. Baskin with regards to immigration.

[00:01:37] Speaker 04:
So that's the Article III case or controversy there.

[00:01:40] Speaker 01:
I understand the cloud of accusations question, but in the end of his opinion, the district judge said, I'm not addressing here any

[00:01:51] Speaker 01:
Motion to expunge, only addressing with or without prejudice.

[00:01:55] Speaker 01:
And what's at stake with the distinction between with prejudice and without prejudice is the susceptibility or not to retrial, to re-indictment, to re-indictment.

[00:02:06] Speaker 01:
And here, if there's a time bar, there's no risk of re-indictment.

[00:02:10] Speaker 01:
And even if there were, that, I mean, a without prejudice dismissal could be because of want of probable cause.

[00:02:21] Speaker 01:
a with prejudice dismissal could be for reasons other than a want of probable cause.

[00:02:26] Speaker 01:
So it just seems to me that the causation of redressability are missing here, or that's an argument.

[00:02:34] Speaker 01:
I guess I'm asking you, are they?

[00:02:35] Speaker 01:
Or if they're not, why not?

[00:02:37] Speaker 04:
That's a good question.

[00:02:38] Speaker 04:
The other side didn't raise it, so it may be that we need to brief that after this, but I'll try to answer it.

[00:02:46] Speaker 04:
The injury is from the cloud.

[00:02:48] Speaker 04:
So for example, we – if all we wanted was a dismissal of prejudice, we could cite the statute of limitations now and get to that.

[00:02:56] Speaker 04:
I mean, I don't think reprosecution is likely.

[00:02:58] Speaker 04:
What we're trying to do is exonerate, and that is to remove cloud, and that is that there was no probable cause the government has admitted that essentially count one didn't happen or rather

[00:03:10] Speaker 04:
That's my shorthand.

[00:03:12] Speaker 04:
Rather, other people did it, and the government has admitted that we got all of them.

[00:03:17] Speaker 04:
So the district judge inserted, oh, but these guys might have been responsible too, but that's contrary to the government's admissions, which is we got all of them.

[00:03:26] Speaker 05:
So sorry, you are challenging the probable cause determination

[00:03:33] Speaker 05:
by the grand jury on the front end?

[00:03:36] Speaker 05:
I don't think so.

[00:03:37] Speaker 04:
I think what we're challenging is... Right, because you'd have a pretty big problem under Caley.

[00:03:43] Speaker 04:
No, absolutely.

[00:03:43] Speaker 04:
I've never tried to go back to 2004, which is when the grand jury acted, or maybe it was 2003, I'm sorry.

[00:03:50] Speaker 04:
What we're saying is that the government, by continuing this case, after it cratered in New York in 2007-8, and it started cratering here, moved to New York, and finished cratering,

[00:04:00] Speaker 04:
that that was, they continued to pursue, the United States was an active party in the extradition proceedings in Barbados, represented by counsel.

[00:04:11] Speaker 04:
And so they continued, they never admitted to that court that the case is cratered, we admit it's only about the two kilograms in Barbados.

[00:04:20] Speaker 04:
They kept going, they countenance, they didn't need to ask for the gentleman to be locked up,

[00:04:24] Speaker 04:
so to have bail revoked.

[00:04:27] Speaker 04:
So then the United States comes to the court below, the district court here, and as a matter of factly, it slips in on Christmas Eve, a motion to dismiss, oh, it's been an old case, let's just let it go.

[00:04:42] Speaker 05:
I mean, you're coming to points for sanctions and stuff.

[00:04:48] Speaker 05:
I just want to focus on,

[00:04:51] Speaker 05:
what the stigmatizing injury is here.

[00:04:55] Speaker 05:
It's the pendency, it's the... No, they're called drug dealers.

[00:04:59] Speaker 04:
I mean, I've written letters to websites that take that down, and what I got was the word alleged inserted in front of drug dealer.

[00:05:08] Speaker 04:
That's not in the record, but that's an example.

[00:05:09] Speaker 05:
It's the stigmatizing effect of a grand jury indictment, which we can't do anything about,

[00:05:17] Speaker 05:
plus the pursuit for some years of a criminal prosecution which the government has now abandoned.

[00:05:27] Speaker 04:
So the government got on a tighter by bringing a false case.

[00:05:31] Speaker 04:
And then the government was allowed to dismount rather easily.

[00:05:35] Speaker 04:
And our argument is the government should not be allowed to dismount so easily.

[00:05:39] Speaker 04:
They misled the court in asking to dismiss the case.

[00:05:45] Speaker 04:
They misled the court in Barbados from 2008 onwards.

[00:05:49] Speaker 01:
But that's the civil case.

[00:05:51] Speaker 01:
There's a civil case for malicious prosecution and false imprisonment, and that's the place to make that claim, no?

[00:06:02] Speaker 04:
I'm not sure what the law is on that.

[00:06:03] Speaker 04:
That case has been, the judge, Sue Esponti, stated we have the same judge in the civil and the criminal case.

[00:06:09] Speaker 04:
My thinking, to be honest, is that we have a hard time on immunity in that.

[00:06:14] Speaker 04:
So I see there as being three parts.

[00:06:16] Speaker 04:
Did the government do wrong?

[00:06:19] Speaker 04:
If so, are they immune?

[00:06:22] Speaker 04:
And if not, let's talk about money.

[00:06:24] Speaker 04:
That's the civil case.

[00:06:26] Speaker 04:
I don't know how we get past that second hurdle.

[00:06:29] Speaker 04:
Maybe we can.

[00:06:30] Speaker 04:
Maybe we can't.

[00:06:30] Speaker 04:
There's theories that one can raise.

[00:06:34] Speaker 04:
But if we can hear, I think we have a, quote, cause of action here, which is an opposition to the 48A motion, essentially, or a counter motion to dismiss, or a sanctions motion.

[00:06:47] Speaker 04:
And so we can exonerate them.

[00:06:49] Speaker 04:
I'll call that a win.

[00:06:50] Speaker 04:
I'd love you to get money, but I would, of the three tiers that I described for the civil case, this case meets the first tier, which is, did the government do wrong?

[00:07:00] Speaker 01:
So if there were a timely trial, re-indictment and trial, and your clients were acquitted, you would not be here.

[00:07:09] Speaker 01:
The harm that you're asserting would not exist, in your view.

[00:07:14] Speaker 04:
If they were found innocent, they would not feel guilty.

[00:07:17] Speaker 01:
They would be acquitted, right?

[00:07:18] Speaker 04:
Yes, if they were acquitted, I'm sorry.

[00:07:19] Speaker 01:
An acquittal, however, is not a finding that there was never probable cause in the first place.

[00:07:27] Speaker 04:
Well, it depends on what you're acquitted on.

[00:07:29] Speaker 01:
But it isn't.

[00:07:30] Speaker 01:
It just isn't a finding that there was no probable cause in the first place, unless there is also some determination that the evidence was false, in which case the court would have to go over and above the acquittal and

[00:07:43] Speaker 01:
move for some kind of expungement of arrest or indict, right?

[00:07:50] Speaker 01:
So even, I mean you wouldn't be here if there were an acquittal.

[00:07:54] Speaker 01:
you said.

[00:07:55] Speaker 04:
I think that's right.

[00:07:56] Speaker 04:
I mean, it depends on the basis of the acquittal, I guess.

[00:07:59] Speaker 01:
But also, at the end of his opinion, the district judge said that he referred to a request that the relief be without prejudice to a future motion to expunge Mugen's arrest records.

[00:08:15] Speaker 04:
Yeah, we asked for that.

[00:08:16] Speaker 01:
For a lack of probable cause.

[00:08:18] Speaker 01:
And then he said, should Mugen seek additional relief following the court's decision on the motion

[00:08:24] Speaker 01:
on with prejudice without prejudice, the court will address that request.

[00:08:28] Speaker 01:
I didn't find any such motion in the record.

[00:08:30] Speaker 01:
Did you make such motion?

[00:08:31] Speaker 04:
We appealed this, and we've been waiting for that result.

[00:08:35] Speaker 01:
But so you didn't, actually.

[00:08:36] Speaker 04:
We have not filed anything yet.

[00:08:37] Speaker 01:
OK, we'll give you more time if there are more questions.

[00:08:49] Speaker 00:
Good morning.

[00:08:50] Speaker 00:
May it please the court, Vijay Shankar for the United States.

[00:08:54] Speaker 00:
Your Honor, as my colleague's own argument makes clear why it is that his client is not entitled to the relief they seek.

[00:09:01] Speaker 00:
As he put it, they seek exoneration.

[00:09:04] Speaker 00:
And as Your Honor recognized, that's not what even a dismissal with prejudice provides defendants.

[00:09:11] Speaker 05:
The grand jury... On the question of jurisdiction?

[00:09:15] Speaker 05:
Do you think this is more appropriately regarded as a problem of no finality or a problem of no injury?

[00:09:26] Speaker 05:
Because Parr talks about both.

[00:09:29] Speaker 00:
Right.

[00:09:30] Speaker 00:
And we do think it is both, Your Honor.

[00:09:32] Speaker 00:
They are sort of wrapped up together.

[00:09:34] Speaker 00:
There's no injury.

[00:09:35] Speaker 00:
because the defendants do have gained a favorable ruling.

[00:09:40] Speaker 05:
Let's just try to unpack them for a second.

[00:09:42] Speaker 05:
So just on finality, that opinion is one in which there is a second indictment and the court's analysis of finality is premised on

[00:09:57] Speaker 05:
the pendency of the second indictment and they say the dismissal of the first one is interlocutory because the case is going on through the second one.

[00:10:06] Speaker 05:
We don't have that here.

[00:10:08] Speaker 05:
This dismissal is final, at least in the intuitive sense that it leaves the district court with

[00:10:15] Speaker 05:
no further judicial labor.

[00:10:18] Speaker 05:
It's nothing else he has to do.

[00:10:19] Speaker 00:
That's right, Your Honor, but finality for these purposes, for purposes of appellate jurisdiction under 1291, in the criminal context, the courts have made clear, including the Supreme Court, does require a final judgment.

[00:10:32] Speaker 00:
And that's in the statute, and the final judgment in the criminal context does consist of a conviction and sentence.

[00:10:38] Speaker 00:
That is the judgment.

[00:10:39] Speaker 00:
And so... This case is time-barred.

[00:10:41] Speaker 00:
There's no dispute about that, is there?

[00:10:43] Speaker 00:
There is no dispute – I will say, Your Honor, it does get a little complicated with Section 3288, which does speak of an appeal from the dismissal of an indictment tolling the statute of limitations.

[00:10:57] Speaker 00:
Now, I do think a common-sense reading of that statute – I didn't find any cases on this – a common-sense reading of that statute would have to contemplate an appeal by the government

[00:11:07] Speaker 00:
from the dismissal of an indictment, which would then toll the statute of limitations.

[00:11:13] Speaker 00:
But here we have an appeal from the – by the defendants from denial of a motion to alter the dismissal of the indictment.

[00:11:21] Speaker 00:
So I do think it gets a little complicated.

[00:11:23] Speaker 00:
I think for our purposes, the government would essentially acknowledge that

[00:11:29] Speaker 00:
The statute of limitations ran in 2009.

[00:11:31] Speaker 00:
There's certainly, from our perspective, no interest in a new prosecution here.

[00:11:38] Speaker 01:
You say you would essentially acknowledge – would you acknowledge – it would make the record cleaner – would you acknowledge that there is no interest in reprosecution and that – Yes, Your Honor.

[00:11:47] Speaker 00:
Yes, Your Honor.

[00:11:49] Speaker 00:
So, turning back to Judge Katz's question, I think finality here has to entail a final judgment which can consist of conviction and sentence.

[00:11:59] Speaker 05:
It's a little bit of a counterintuitive notion that you could never have a final judgment.

[00:12:09] Speaker 05:
resting on some threshold ground as opposed to an adjudication on the merits.

[00:12:15] Speaker 05:
I mean, if there were no special statutes, jurisdictional statutes, other than 1291, and an indictment were dismissed for some reason you think is completely indefensible,

[00:12:30] Speaker 05:
Is it really your position that the government couldn't appeal that through 1291 because the dismissal is not a conviction on the merits?

[00:12:38] Speaker 00:
Well, the government can appeal the dismissal of an indictment under Section 3731.

[00:12:42] Speaker 05:
Which is why I said assume no other statutes.

[00:12:45] Speaker 00:
Oh, sorry.

[00:12:46] Speaker 05:
Just to test the 1291 instinct.

[00:12:50] Speaker 00:
If there was no 3731, I think it's probably fair to say that that would not be a final judgment.

[00:12:57] Speaker 00:
I mean, that's the very purpose that Congress enacted 3731 in that situation.

[00:13:01] Speaker 00:
Otherwise, the government would have no recourse if there was a dismissal of the indictment pretrial.

[00:13:07] Speaker 00:
But I think it's wrapped – I think that's why the concepts are wrapped up together, finality and lack of injury, because the defendant here – the defendants do stand presumptively innocent of these charges.

[00:13:17] Speaker 00:
There are no pending charges against them.

[00:13:18] Speaker 00:
They received a favorable decision.

[00:13:21] Speaker 00:
The only way they would have recourse to an appeal here is if they were then retried or tried.

[00:13:28] Speaker 00:
convicted and sentenced, and then they would have an opportunity to challenge the dismissal of the indictment.

[00:13:32] Speaker 01:
But there is precedent, not in the circuit, but precedent and reasoning, that an indictment that is dismissed without prejudice in some cases perhaps should be dismissed with prejudice as a sanction for prosecutorial misconduct.

[00:13:51] Speaker 01:
And if a defendant were in that position,

[00:13:58] Speaker 01:
and the limitations period had run so that there wasn't going to be the par subsequent proceeding to final judgment and sentence, is it your position that there would be no finality there from which a defendant could?

[00:14:15] Speaker 01:
Take an appeal?

[00:14:17] Speaker 00:
There wouldn't be, Your Honor.

[00:14:19] Speaker 00:
If the defendant moved to dismiss or sought to challenge the dismissal and argued for a dismissal with prejudice, and the district court denied that, I mean, that's essentially where we are now.

[00:14:32] Speaker 00:
And the government chose not to reprosecute or the statute of limitations had run.

[00:14:37] Speaker 00:
That would be the end of the case.

[00:14:40] Speaker 00:
The defendants, again, have no charges pending against them.

[00:14:42] Speaker 00:
They are not injured, and there would not be a final judgment for purposes of 1291 in the criminal context.

[00:14:48] Speaker 01:
But there would be, by hypothesis, and again, that's not our precedent, but to the extent that if one were to accept precedent that says sometimes a with prejudice dismissal is the appropriate sanction, you're saying, well, that would no longer be a sanction because the government's already been disabled by the time bar.

[00:15:06] Speaker 00:
That's right.

[00:15:07] Speaker 01:
So it would be a sanction in the air.

[00:15:09] Speaker 00:
Right.

[00:15:09] Speaker 00:
And this does go back to, I think, your opening question to my colleague, which is, what does a dismissal with prejudice do other than prevent the government from re-prosecuting the case?

[00:15:19] Speaker 00:
I'm not sure it does anything.

[00:15:20] Speaker 00:
It certainly doesn't do what my colleague is asking for it to do, which is exonerate his clients.

[00:15:25] Speaker 00:
It doesn't do that any more than a dismissal without prejudice fails to exonerate his clients.

[00:15:30] Speaker 01:
What about for purposes of precedent and

[00:15:35] Speaker 01:
closing the books in a correct manner, there's a constitutional violation and prosecutorial misconduct and the district judge just blinked and didn't find that it was so and the court looking at that said that's just that's just error and the defendant looking at that says it's not about me facing further prosecution it's what happened in this case and

[00:15:59] Speaker 01:
and how that should be reflected in the nature of the dismissal.

[00:16:04] Speaker 01:
Again, no finality?

[00:16:06] Speaker 00:
The reason that a dismissal with prejudice sanctions the government is that it prevents reprosecution.

[00:16:12] Speaker 00:
It is a sanction.

[00:16:14] Speaker 00:
That's why courts have called it the most extreme sanction.

[00:16:16] Speaker 01:
But it may also be symbolic in the sense that, as here, a dismissal without prejudice, the government learns from its mistakes

[00:16:26] Speaker 01:
thankfully, and looks at the situations of where do we prosecute this?

[00:16:32] Speaker 01:
In a hypothetical case, the court told us we violated the Constitution, the court told us there was prosecutorial misconduct.

[00:16:39] Speaker 01:
We can read the writing on the wall, but if the defendant and the court and the law says, no, no, no, no, much more serious, you still think that there's no finality for purposes of correcting

[00:16:55] Speaker 01:
the record on that.

[00:16:56] Speaker 00:
There's not, Your Honor, because the record that would be sought to be corrected in that instance is the grand jury's finding of probable cause.

[00:17:04] Speaker 01:
Well, I'm actually, on my hypothesis, pausing something different, but the record is that is the use of the nature of the dismissal to send a quieter, more tolerant, or a louder, more scolding message.

[00:17:20] Speaker 00:
Well, Your Honor, I'm not sure that that's really what a dismissal with prejudice does.

[00:17:25] Speaker 03:
I mean, the message it sends is to... Well, what do you think a dismissal with prejudice does?

[00:17:28] Speaker 03:
You think it takes the singular consequence?

[00:17:31] Speaker 00:
I think the sole consequence of a dismissal with prejudice, although it may, the district court obviously may seek to send messages through its word.

[00:17:39] Speaker 03:
Well, yeah, I mean, I think that's pretty obvious in some cases.

[00:17:42] Speaker 03:
Right.

[00:17:42] Speaker 03:
If a district court judge elects to dismiss with prejudice,

[00:17:46] Speaker 03:
It's more than the simple consequence that you can't re-prosecute.

[00:17:51] Speaker 03:
It's for a reason, the underlying reason why we're not gonna allow you to re-prosecute.

[00:17:57] Speaker 03:
comes along with the dismissal of prejudice.

[00:18:00] Speaker 03:
I mean, for you to suggest that the only consequence is you can't re-prosecute ignores the reason why you can't re-prosecute, which is what the defendant is trying to get.

[00:18:10] Speaker 00:
Well, I think it's the only consequence that the defendant has any cognizable stake in.

[00:18:16] Speaker 03:
Well, that's the standing question.

[00:18:19] Speaker 03:
That's the standing court.

[00:18:20] Speaker 03:
I mean, that's why we're pushing you in front.

[00:18:21] Speaker 03:
The finality is so counterintuitive, it doesn't make a lot of sense.

[00:18:25] Speaker 03:
There are reputational consequences and maybe beyond that a defendant can show.

[00:18:31] Speaker 03:
It matters whether I can show that it's on the internet or otherwise.

[00:18:35] Speaker 03:
It's not just that they can't re-prosecute me.

[00:18:38] Speaker 03:
It affects my life.

[00:18:39] Speaker 03:
And the district court judge has that available to say.

[00:18:43] Speaker 03:
It's a no to the government.

[00:18:45] Speaker 03:
But I am effectively admonishing you or letting the public know that there are some things that have gone on here that were not acceptable.

[00:18:55] Speaker 03:
And that's why you can't prosecute again.

[00:19:00] Speaker 00:
Your Honor, the reputational injury that you contemplate in that hypothetical, I don't think could be addressed by a district court in a dismissal, even a dismissal, with prejudice.

[00:19:11] Speaker 00:
And that's because, again, the grand jury has already found probable cause to indict.

[00:19:14] Speaker 03:
And the Supreme Court in Caley, when you...

[00:19:17] Speaker 03:
I'm sorry?

[00:19:18] Speaker 03:
How the case is being pursued?

[00:19:20] Speaker 00:
Well, certainly the district court could, through its language, sanction the government for the handling of the case if at some point there was a motion, sort of a Bank of Nova Scotia situation, where the defendant has argued that the indictment was obtained through, for example, perjured testimony.

[00:19:38] Speaker 00:
the district court would then have to determine whether in the absence of that perjured testimony there was still probable cause to indict.

[00:19:44] Speaker 00:
We don't have that situation here.

[00:19:46] Speaker 00:
Short of that, the fact of reputational injury that results from a grand jury's properly constituted grand jury's finding of probable cause simply cannot be erased by the district court, even if the district court wanted to dismiss the indictment with prejudice.

[00:20:01] Speaker 00:
That's Kayleigh.

[00:20:02] Speaker 01:
Be that as it may, the case I'm thinking of is the Fifth Circuit's case in Salinas.

[00:20:08] Speaker 01:
where the Court of Appeals reversed the district court's dismissal of an indictment without prejudice because it became clear that the reason that the government sought the dismissal without prejudice was because it didn't like the jury that got impaled.

[00:20:29] Speaker 01:
that the district court said without prejudice, the court of appeals said, no, no, that is not okay.

[00:20:35] Speaker 01:
And the sanction there was for the court of appeals to say that's gotta be dismissed with prejudice.

[00:20:42] Speaker 01:
And the question is, is it your view that in the posture that we have here, we could not make that kind of determination in order to make clear that that is a showstopper?

[00:20:57] Speaker 00:
That kind of conduct by a prosecutor is a showstopper.

[00:21:01] Speaker 00:
You could make that clear, Your Honor, but you could only do it after the defendant has been convicted and sentenced and then appeals from following final judgment, appeals from the district court's denial, I'm sorry, dismissal with prejudice as opposed to without prejudice.

[00:21:16] Speaker 00:
And that's — Because of finality concerns?

[00:21:19] Speaker 01:
Finality concerns?

[00:21:20] Speaker 00:
Yes.

[00:21:21] Speaker 00:
Yes, Your Honor.

[00:21:21] Speaker 00:
Who said that?

[00:21:22] Speaker 00:
This court has said that.

[00:21:23] Speaker 00:
In fact, in the case of Poindexter, which we didn't cite in our brief – it wasn't directly raised here – but this court's decision in United States v. Poindexter, which is 859 U.S.

[00:21:33] Speaker 00:
216, talks about the fact that that type of dismissal is not appealable until after final judgment

[00:21:42] Speaker 00:
which consists of conviction and sentence in the criminal context.

[00:21:46] Speaker 03:
Which can, not must, you said can consist of?

[00:21:52] Speaker 00:
No, it must, Your Honor, with respect.

[00:21:54] Speaker 03:
I mean, the court's... See, the point is, I don't understand why you have the option.

[00:21:57] Speaker 03:
Your argument makes me wonder why we have the option of dismissal with prejudice.

[00:22:02] Speaker 00:
Certainly, Your Honor, a district court can pretrial dismiss an indictment with prejudice.

[00:22:10] Speaker 00:
I don't dispute that if the proper circumstances are presented.

[00:22:13] Speaker 00:
And we set them forth in our case – I'm sorry, in our brief – misconduct by the government and a desire to harass the defendant, all those reasons we set forth.

[00:22:22] Speaker 00:
The question is, if the district court declines to do that and dismisses without prejudice, is that immediately appealable?

[00:22:30] Speaker 00:
The Supreme Court addressed that in the PARA and said, no, the defendant has to go through the adversary.

[00:22:35] Speaker 03:
No, the PARA situation is on its face different.

[00:22:39] Speaker 03:
You can understand why the court would have gone that route, given the case was still continuing.

[00:22:44] Speaker 03:
It's not the same situation.

[00:22:46] Speaker 00:
Your Honor, respectfully, PARA is actually broken up into two sections, the opinion.

[00:22:51] Speaker 00:
It talks about first, let's assume that we don't have a second indictment.

[00:22:55] Speaker 00:
Let's just talk about the first indictment.

[00:22:57] Speaker 00:
And it's been dismissed.

[00:22:59] Speaker 05:
And the only rationale on that part of the opinion, though, is the injury point, not the finale.

[00:23:07] Speaker 00:
Well, it's both, Your Honor.

[00:23:10] Speaker 00:
It's both, respectfully.

[00:23:15] Speaker 00:
The testing of the effect of the dismissal order must abide petitioner's trial and only then, if convicted, will he have been agreed.

[00:23:23] Speaker 00:
But that's wrapped up in finality.

[00:23:25] Speaker 00:
Right.

[00:23:25] Speaker 05:
Paragraph one, if you view the first indictment in isolation, the problem is petitioner has not been agreed.

[00:23:35] Speaker 05:
Right.

[00:23:35] Speaker 05:
Paragraph two, if you view the two together as a single prosecution, no finality.

[00:23:41] Speaker 00:
Yes, Your Honor.

[00:23:43] Speaker 05:
And I would think Judge Edwards is absolutely right as to the second piece of it, which just leaves you your standing or injury argument.

[00:23:54] Speaker 00:
Your Honor, I think these are wrapped up together.

[00:23:56] Speaker 00:
1291, the finality requirements of 1291 rest on whether

[00:24:01] Speaker 00:
an appellant has been aggrieved in a way that results from finality that this court can then address the issue.

[00:24:09] Speaker 00:
In the criminal context, courts have repeatedly held that a defendant is not aggrieved as required for finality until he or she has been convicted and sentenced.

[00:24:19] Speaker 00:
That's why a number of pretrial rulings in which a defendant has been aggrieved by, for example, the exclusion of evidence, he may be aggrieved, but he hasn't been aggrieved in the finality sense.

[00:24:30] Speaker 05:
Grieved sounds like a standing concept, not a finality concept.

[00:24:36] Speaker 01:
So in this case, there was this discussion about expungement.

[00:24:40] Speaker 01:
And I don't see the defendants having sought expungement of a record.

[00:24:48] Speaker 01:
And the arrest here took place in Barbados, not in the United States.

[00:24:52] Speaker 01:
So any expungement of an arrest record would have to take place in Barbados.

[00:24:56] Speaker 01:
Is that right?

[00:24:57] Speaker 00:
That's right, Your Honor.

[00:24:58] Speaker 01:
And so if they were to seek expungement of the grand jury record, is that something that is in the equitable discretion of the district court to seek?

[00:25:08] Speaker 00:
Your Honor, I'm not aware of any mechanism for a district court, and that's exactly what the Supreme Court's saying to Kayleigh, to erase the fact of an indictment on probable cause by a properly constituted.

[00:25:20] Speaker 01:
I'm thinking expunge the record of, not erase the fact of, but to say the record of that is causing harm.

[00:25:26] Speaker 01:
We're not going to go into its merits, but for reasons orthogonal to its merits having to do with perhaps misconduct.

[00:25:35] Speaker 01:
the judge thinks that it's a medial question in terms of future-looking harms, you're just not aware one way or the other.

[00:25:43] Speaker 00:
No, the indictment has been returned.

[00:25:45] Speaker 00:
The indictment is a fact of life.

[00:25:49] Speaker 00:
It has been returned by a properly constituted grand jury.

[00:25:53] Speaker 00:
I mean, the Supreme Court has said in Kayleigh that is conclusive, inviolable, unreviewable by a court.

[00:26:00] Speaker 01:
Now, this is not this case.

[00:26:02] Speaker 00:
Let me be clear.

[00:26:05] Speaker 01:
the prosecution or somebody posing as a prosecutor with a group of actors went into a grand jury and procured an indictment, we wouldn't have to deal with the Cayley question if we just said, let's take that record and expunge it.

[00:26:21] Speaker 01:
Presumably that would be an available remedy to just, that's gonna be sealed, that's gonna be expunged, whatever, it's not gonna cast aspersions on

[00:26:30] Speaker 01:
the target of the indictment.

[00:26:31] Speaker 00:
I think, I mean, the Supreme Court addressed that issue, I think, in Midland Asphalt, which is when Justice Scalia would probably term that an indictment, something that is not even an indictment on its face.

[00:26:44] Speaker 00:
I mean, if you've got somebody who's imposing, I'm sorry, posing as a prosecutor and, you know, is falsely obtaining an indictment,

[00:26:53] Speaker 00:
from a grand jury, I think that's not an indictment on its face.

[00:26:56] Speaker 01:
But you get my point.

[00:26:57] Speaker 01:
Let's say it is a prosecutor.

[00:26:58] Speaker 01:
Let's say that's extreme misconduct, and they're bringing in just made-up witnesses.

[00:27:01] Speaker 01:
They're just bringing in people that the prosecutor paid and asking the jury to credit those people.

[00:27:11] Speaker 01:
And the jury does credit those people.

[00:27:14] Speaker 01:
And they do, under the process he set up,

[00:27:17] Speaker 01:
I'm just wondering what your position is on where, there has to be some remedy for the harm that might flow from that.

[00:27:24] Speaker 00:
And I'm just wondering where that would be.

[00:27:26] Speaker 00:
That's a dismissal of the indictment with prejudice, and that requires the Bank of Nova Scotia analysis, which is whether in the absence of that testimony, I mean if your honor's hypothetical is that was the only evidence that was presented to the grand jury, it was all false and made up, I think a district court would have to find that in the absence of that evidence,

[00:27:46] Speaker 00:
there should not have been an indictment, but if the district court finds the opposite, that I find that an indictment was still properly returned under Bank of Nova Scotia, then we have a properly returned indictment, and that is an existence of fact that the defendant can't erase.

[00:28:02] Speaker 01:
It would have to be a dismissal of the indictment with prejudice, with reasons given that it was because the evidence

[00:28:11] Speaker 01:
that ostensibly supported probable cause was false.

[00:28:14] Speaker 01:
Because just the dismissal without prejudice doesn't communicate that.

[00:28:18] Speaker 01:
Yeah, I think that's right.

[00:28:20] Speaker 05:
Suppose the indictment is dismissed without prejudice and then the defendant goes to the district court and asks for the relief Judge Pillard is suggesting and says, I want this expunged.

[00:28:39] Speaker 05:
Would the defendant have Article III standing to make that request just based on this reputational harm from the fact of the abandoned prosecution?

[00:29:00] Speaker 00:
I don't think that the defendant would have Article III standing because although he will have a claim of a grievance, it would not be redressable by the district court in the way that the defendant is asking for it to be redressed, which is erasure.

[00:29:17] Speaker 00:
Again, I'm assuming now not the previous hypothetical of a completely fake indictment type of situation, but where if the district court

[00:29:28] Speaker 00:
that the indictment was otherwise properly returned by a properly... No, just as a sanction for government misconduct.

[00:29:37] Speaker 00:
Again, Your Honor, I get that this may be a little bit hard to...

[00:29:43] Speaker 00:
to get around, but the cases make clear, Kaley makes clear, a district court can't erase the fact of an indictment and the finding of probable cause that supports that indictment by a properly constituted grand jury.

[00:29:55] Speaker 00:
The grand jury is a freestanding body, and the courts have trusted for centuries that the grand jury is the body.

[00:30:02] Speaker 03:
You're saying even in a situation of falsely acquired evidence that's submitted to the grand jury, which is what Judge Piller was,

[00:30:08] Speaker 00:
Well, again, Your Honor, that would require the Bank of Nova Scotia analysis.

[00:30:12] Speaker 03:
Well, so the answer to Judge Katz is yes, they could.

[00:30:16] Speaker 03:
The fact that it occurs a little bit later shouldn't matter if it's a falsely acquired indictment.

[00:30:23] Speaker 03:
I apologize if I did that, Your Honor.

[00:30:35] Speaker 00:
I may have misunderstood your question.

[00:30:38] Speaker 00:
If the question is that

[00:30:40] Speaker 00:
At this point, defendants return to the district court and say everything that was presented to the grand jury was perjured and false.

[00:30:46] Speaker 00:
And so I want the fact of the indictment to be expunged.

[00:30:50] Speaker 00:
I think that at that point, the district court would have to conduct, again, I'm not sure exactly what the mechanism would be, the motion would be styled as.

[00:31:01] Speaker 00:
I would have to think about that, but I think regardless, the district court would have to conduct some sort of Bank of Nova Scotia analysis.

[00:31:07] Speaker 05:
So the defendant in that circumstance would have Article 3 standing to seek that relief before the district court?

[00:31:19] Speaker 00:
I guess that's probably right, Your Honor.

[00:31:22] Speaker 05:
Okay, so then why for Article 3 purposes

[00:31:27] Speaker 05:
Why would the defendant have a sufficient injury to seek that relief before the district court through that sort of motion, but not have standing to appeal?

[00:31:41] Speaker 05:
The injury's the same.

[00:31:43] Speaker 00:
But we have not made a pure Article III lack of standing argument in this court.

[00:31:50] Speaker 00:
What we have done is relied on the fact that

[00:31:53] Speaker 00:
a defendant whose indictment has been dismissed and stands presumptively innocent and does not have charges pending against him.

[00:32:06] Speaker 00:
has not been aggrieved, has received a favorable ruling from the district court, and has not been aggrieved for purposes of appellate standing, which is a slightly different concept from pure constitutional standing in the sense of having aggrievance.

[00:32:21] Speaker 05:
Which is why you don't want to untangle finality and injury.

[00:32:26] Speaker 00:
Well, I do respectfully think they are intertwined in this context, Your Honor.

[00:32:33] Speaker 01:
I had thought that when you were responding to my earlier question that you had said that if a prosecutor had presented false evidence

[00:32:46] Speaker 01:
that the remedy for the defendant, and it was a situation like this, where after the indictment was dismissed, the limitations period was gonna run, so there was no par prospect of retrial.

[00:33:02] Speaker 01:
But there's false evidence, and the defendant and or the court of appeals

[00:33:10] Speaker 01:
thinks that it is in the interest of justice to have the lack of support for what the

[00:33:19] Speaker 01:
the grand jury did made clear on the record.

[00:33:22] Speaker 01:
I thought your answer to me was there would be a dismissal of the indictment and the court could give the reasons that would fix that problem by saying, you know, I grant the Rule 48 motion to dismiss the indictment because the evidence presented by the government was false.

[00:33:45] Speaker 01:
Is that right?

[00:33:46] Speaker 01:
Yes.

[00:33:47] Speaker 01:
Now, if that's appropriate, it seems to me that the same thing could be true when the indictment is dismissed without prejudice, that actually you could say, well, this prosecutor presented false evidence, but this defendant may still be a criminal.

[00:34:05] Speaker 01:
So I'm going to dismiss this without prejudice with that reason and let the government get its act together, get a new prosecutor on the case,

[00:34:15] Speaker 01:
within the time period go after this person.

[00:34:19] Speaker 00:
Well, again, Your Honor, I think there is a distinction between a comment in a dismissal ruling indicating that the government presented false testimony before the grand jury, and then the ultimate determination whether that calls for a dismissal with prejudice or nonetheless a dismissal without prejudice.

[00:34:38] Speaker 01:
I think I'm agreeing with you on that.

[00:34:42] Speaker 01:
But then I'm wondering about whether this individual might be aggrieved

[00:34:48] Speaker 01:
by the lack of articulation of reasons that redress his complaint.

[00:35:03] Speaker 01:
And whether they've asked for that appropriately is a separate question.

[00:35:06] Speaker 01:
But just in terms of this question about finality and aggrieved, I'm just probing the United States position on that.

[00:35:22] Speaker 00:
I suppose that defendant could be aggrieved by the lack of language that he seeks to have included in that opinion.

[00:35:33] Speaker 00:
Again, I don't think it advances the ball in the aggrieved sense for the defendant with respect to any relief that he or she might seek, tangible relief that he or she might seek.

[00:35:47] Speaker 00:
With or without prejudice?

[00:35:48] Speaker 00:
Correct.

[00:35:50] Speaker 00:
and with respect to waving this document around and saying, there was never any probable cause to indict me in the first place, unless we have a ruling where the district court said, I've conducted the Bank of Nova Scotia analysis, and in the absence of the false or perjured testimony, there was no evidence to support the grand jury's probable cause finding.

[00:36:14] Speaker 00:
That's the only situation in which the defendant can do that.

[00:36:17] Speaker 00:
And I appreciate and understand the court's questions in all of these contexts.

[00:36:21] Speaker 00:
I will, of course, note that the district court here specifically found on the record that there was no misconduct.

[00:36:27] Speaker 00:
So we're not talking about a situation, and I've entertained the notions in all these hypotheticals of government misconduct and the presentation of false testimony and all of that, but we would vociferously deny that any of that occurred here, and the district court specifically found that it did not occur here.

[00:36:44] Speaker 00:
And we appreciate that that's your position.

[00:36:49] Speaker 03:
Are you sure the standing of the agreement issue resolved by the Supreme Court in court

[00:36:55] Speaker 03:
is not to be viewed as Article 3 standing question, which is what you said.

[00:37:01] Speaker 00:
I don't think it's – certainly the Supreme Court didn't conceptualize it.

[00:37:05] Speaker 03:
They used the words Article 3.

[00:37:06] Speaker 03:
That's true.

[00:37:06] Speaker 03:
They used a grievance.

[00:37:08] Speaker 00:
Right.

[00:37:09] Speaker 03:
And I think that – And they used standing.

[00:37:13] Speaker 00:
I don't recall them using standing.

[00:37:15] Speaker 00:
I might be – I'm subject to being corrected on that, Your Honor.

[00:37:19] Speaker 00:
Yes, I'm sorry, standing to appeal.

[00:37:22] Speaker 00:
And so, right.

[00:37:23] Speaker 00:
And so this is where I was going with Judge Katz's question, which is appellate standing as being distinguished from pure Article 3 standing in the sense of

[00:37:35] Speaker 03:
Yeah, no, I mean, that's a curious notion to me.

[00:37:40] Speaker 03:
I – you may be right, and I haven't researched it that way in recent memory, or maybe ever.

[00:37:48] Speaker 03:
I've just always assumed the notion of standing and disseminating from occupancy, but you may be right.

[00:37:53] Speaker 00:
I don't know.

[00:37:54] Speaker 00:
Of course, there – I mean, there's prudential standing and constitutional standing.

[00:38:01] Speaker 03:
Since Lexmark, I mean, they're trying to wash away all these prudential motions.

[00:38:05] Speaker 03:
They're not as many as they used to be, so I'm not sure what that means either.

[00:38:09] Speaker 03:
Because that would give discretion to the court of prudential, so they could say, well, in this case, no prudential.

[00:38:16] Speaker 03:
I don't think the court's going that way.

[00:38:17] Speaker 03:
I think it's quite the opposite.

[00:38:19] Speaker 03:
It's either their cause of action or jurisdictional or not, and prudentialism is a fading category.

[00:38:26] Speaker 03:
So I was just curious when you made that comment so straightforwardly, if it was absolutely clear, was there some authority you have for that?

[00:38:33] Speaker 00:
Well, Your Honor, again, I recognize that PAR, you know, PAR is some 60, 70 years old now.

[00:38:38] Speaker 00:
Yeah, it's not great.

[00:38:40] Speaker 03:
It's certainly not in line with the way we write it now.

[00:38:44] Speaker 03:
All due respect to the court.

[00:38:46] Speaker 00:
Yes, of course, due respect to the court.

[00:38:48] Speaker 00:
It's not a model of clarity, but I do think ultimately the question is the defendant who has obtained the dismissal of an indictment, whether on the government's motion or by the district court, the Supreme Court has made clear, generally can't appeal that ruling until.

[00:39:03] Speaker 03:
I was just trying, in fact, to see whether you really meant to say it is in Article 3, because we – the notion now is that you've got to have standing at every stage.

[00:39:13] Speaker 03:
litigation.

[00:39:14] Speaker 03:
If something happens, we'll look at you again, like some of you, you know, you want a part of the case.

[00:39:20] Speaker 03:
And so we now look, you had standing coming in the door, now we're going to look to see whether you still have it.

[00:39:25] Speaker 03:
That's kind of the way we operate now.

[00:39:28] Speaker 03:
which is kind of this context, is you're still standing, now that X has happened.

[00:39:33] Speaker 03:
And so when you say to me, well, it's a potential standing notion, and Lex Marx says, well, we don't really do that anymore, I'm not sure what you're talking about.

[00:39:43] Speaker 03:
So I'm just trying to sort it out in my mind.

[00:39:48] Speaker 05:
Yeah, just on that, I wonder what,

[00:39:52] Speaker 05:
how we think about this Camretta case, which is the one your opponent cites for the proposition that a prevailing party often, or sometimes has standing to appeal, and the court, in the course of analyzing that, seems to say there's an Article III limit on a prevailing party's standing to appeal.

[00:40:20] Speaker 05:
And then above and beyond that, there is what the court describes as rules as a matter of practice and prudence, specifically on appellate standing.

[00:40:32] Speaker 05:
And is that the box that you're trying to fit your injury principle above and beyond Article 3 into?

[00:40:45] Speaker 00:
Your Honor, I apologize I haven't fooled you.

[00:40:47] Speaker 03:
Now that I think about it, I really don't know, Your Honor, what I was trying to say.

[00:40:51] Speaker 00:
I think that's probably a fair answer to that question.

[00:40:55] Speaker 01:
One more question, at least, from me.

[00:40:57] Speaker 01:
So if a district judge in receiving a record in a case and a Rule 48 motion thought that there were defects in the reliability of the evidence that became apparent after the grand jury acted

[00:41:16] Speaker 01:
Would it be appropriate for that district judge to say, I'm going to dismiss this indictment with or without prejudice, because defects in the record arising after the indictment make me believe that there is at least a serious question whether there was probable cause to support it?

[00:41:34] Speaker 01:
So I'm analogizing a little bit to a civil dismissal of a complaint without prejudice.

[00:41:39] Speaker 01:
Complaint, you show me, doesn't state a claim.

[00:41:43] Speaker 01:
I'm not saying you couldn't.

[00:41:45] Speaker 01:
So could the district court, and in fact, wouldn't it be good practice for a district court to specify that what the court understands to be the reliable record as of the time of the government's motion to dismiss doesn't add up?

[00:42:01] Speaker 00:
Well, Your Honor, of course, I think there's a question of whether evidence that has arisen outside of

[00:42:10] Speaker 00:
potentially after the grand jury presentment bears on the question of whether the grand jury had sufficient evidence before it to determine that there was probable cause to believe the defendants committed the crimes.

[00:42:23] Speaker 01:
It might not.

[00:42:24] Speaker 01:
Just bracketing the grand jury and what it did at that time

[00:42:27] Speaker 01:
the court could say it's transpired since then and therefore as we go forward we need a valid indictment government recognizes that government's going to dismiss ask to dismiss this indictment but just to guide everybody and sort of make clear what the state of play is I the district judge think

[00:42:45] Speaker 01:
that you don't have enough if you were gonna just bring that same case tomorrow to a new grand jury.

[00:42:50] Speaker 00:
No, Your Honor, I mean, that would not, I don't think that would be permissible, and here's why.

[00:42:54] Speaker 00:
Really?

[00:42:55] Speaker 00:
That would not be, indictments are generally dismissed for legal insufficiency.

[00:43:01] Speaker 00:
Right.

[00:43:02] Speaker 00:
Because otherwise, I mean, the government, once an indictment has been returned, has the right to bring its case before the jury and present the evidence that it has.

[00:43:09] Speaker 00:
Now, the district court has to wait until that happens before determining that there's insufficient evidence to actually

[00:43:15] Speaker 00:
find the defendant's guilty beyond a reasonable doubt.

[00:43:18] Speaker 00:
If the district court is determining pretrial that the indictment was insufficient to find the defendant's guilty beyond a reasonable doubt, that's an inappropriate use of Rule 29.

[00:43:32] Speaker 00:
On the other hand, as I understand your hypothetical, the district court is concluding pretrial that there was insufficient evidence to support the indictment

[00:43:43] Speaker 00:
then again, I'm not sure what sort of evidence is supporting that finding by the district court.

[00:43:49] Speaker 00:
If there was some motion again, going back to something I've said many times, by the defendants that there was false or perjured testimony before the grand jury, then the district court would have to look at that, look at what was presented to the grand jury, and determine whether if you excise the false or perjured testimony, there was nonetheless sufficient evidence

[00:44:09] Speaker 00:
to indict the defendants.

[00:44:12] Speaker 00:
Obviously, the district court at that point could find no.

[00:44:14] Speaker 00:
Once you excise all of the false or perjured testimony, there was insufficient evidence to indict these defendants, and that point would dismiss the indictment

[00:44:28] Speaker 01:
And so say, could so say, no?

[00:44:30] Speaker 01:
Yes, but we – that's what – I thought that was my question.

[00:44:33] Speaker 00:
Maybe I missed something in translation.

[00:44:35] Speaker 00:
Okay, I'm sorry.

[00:44:36] Speaker 00:
Yes, but I didn't – I'm sorry, I didn't get in your question that there was an actual claim of

[00:44:43] Speaker 00:
of false and perjured testimony before the grand jury and a finding by the district court that in the absence of that testimony, there was no – there was insufficient evidence.

[00:45:00] Speaker 01:
What we found out since the indictment is that there wasn't enough.

[00:45:03] Speaker 01:
It didn't add up.

[00:45:05] Speaker 01:
In order to reindite, it would have to be some non-falson.

[00:45:09] Speaker 00:
But I'm not sure.

[00:45:10] Speaker 00:
I'm sorry.

[00:45:11] Speaker 00:
This is where I'm getting, if I'm resisting you, it's only for this reason.

[00:45:15] Speaker 00:
And hopefully, it's to assist you.

[00:45:18] Speaker 00:
I'm not sure how that would be based on anything that would be found out since the time of the grand jury presentment.

[00:45:25] Speaker 01:
Well, the court might not know until later, and the defendant might not know.

[00:45:30] Speaker 00:
Oh, that there was false or perjured testimony?

[00:45:32] Speaker 00:
Yeah.

[00:45:32] Speaker 00:
I'm sorry.

[00:45:33] Speaker 00:
I thought you were referring to maybe new evidence of somebody else that robbed the bank or something like that.

[00:45:39] Speaker 00:
No, no, no.

[00:45:39] Speaker 00:
I thought you were talking about new substantive evidence, not evidence of prior to the agreement.

[00:45:46] Speaker 00:
I'm sorry, yeah.

[00:45:47] Speaker 00:
So if there's a new learning of impropriety before the grand jury that leads the court to conclude that in the absence of that impropriety, the grand jury would not have been indicted, then under Bank of Nova Scotia, it could in that situation.

[00:46:04] Speaker 00:
Exactly.

[00:46:05] Speaker 01:
So typically, dismissal, whether with or without prejudice, is something of a black box, but it doesn't have to be.

[00:46:11] Speaker 01:
And in fact, sometimes it can be explained.

[00:46:14] Speaker 01:
And sometimes that explanation can guide and mitigate potential harms that might flow from that indictment.

[00:46:25] Speaker 00:
Your Honor, I hate to be... That's all right.

[00:46:27] Speaker 00:
I hate to fight with you.

[00:46:28] Speaker 00:
I'm not trying to.

[00:46:29] Speaker 00:
I don't think we can make that final step.

[00:46:34] Speaker 00:
I don't think we can.

[00:46:35] Speaker 00:
I don't think a defendant can

[00:46:38] Speaker 00:
walk around with a document that says there were improprieties before the grand jury, and therefore I'm actually innocent.

[00:46:48] Speaker 00:
I'm exonerated of these offenses.

[00:46:51] Speaker 00:
And that's what the defendants here are.

[00:46:53] Speaker 00:
The law says a defendant can't do if a properly constituted grand jury found probable cause to issue an indictment.

[00:47:06] Speaker 01:
Thank you.

[00:47:09] Speaker 01:
Does Mr. Joseph have any time remaining for rebuttal?

[00:47:15] Speaker 01:
We'll give you – we gave Mr. Shankar a lot of time.

[00:47:18] Speaker 01:
We'll give you three minutes on rebuttal.

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

[00:47:22] Speaker 04:
To agree with Judges Edwards and Fuller, there's a distinction between the relief, the broad naked relief that you get, and the reasons that are given in the opinion that can fill out that black box.

[00:47:36] Speaker 04:
We've asked and they didn't deny that we could ask for declaratory relief.

[00:47:41] Speaker 04:
I mean, you can just say – I mean, and again, this is not something where we're saying we were not at the banquet and being robbed.

[00:47:48] Speaker 04:
This is something where they said it.

[00:47:49] Speaker 04:
They said this case is only about two kilograms in Barbados.

[00:47:53] Speaker 04:
That means count one wasn't these guys.

[00:47:55] Speaker 04:
They said we got all the other people that did count one, the JFK interdiction.

[00:48:01] Speaker 01:
When they said this case is only about count two, that was not with respect to these defendants.

[00:48:07] Speaker 04:
Well, kind of.

[00:48:09] Speaker 04:
So there were five defendants in D.C.

[00:48:11] Speaker 04:
and three in New York.

[00:48:14] Speaker 04:
The two appellants here were dropped, not because they were the most important, but because they were the least important.

[00:48:19] Speaker 04:
That's an inference on my part.

[00:48:20] Speaker 04:
But one of the ringleaders, supposed ringleader,

[00:48:24] Speaker 04:
was in the New York case, and he's actually in the quote.

[00:48:27] Speaker 04:
So it's not just Mr. Douglas, the guy that was here, extended here, and then sent.

[00:48:32] Speaker 04:
But one of the original three movements, Hawksworth.

[00:48:36] Speaker 04:
And they said, other than vague conversations with Hawksworth about whatever, this is only about two kilograms.

[00:48:43] Speaker 04:
And they say the case, not the Douglas case.

[00:48:46] Speaker 04:
And the case there was Hawksworth, Douglas, and a gentleman named Subram.

[00:48:50] Speaker 04:
So they've admitted that, now maybe that, it's an admission against interest.

[00:48:54] Speaker 04:
I don't know, they haven't shown any evidence.

[00:48:55] Speaker 04:
There was clearly false evidence submitted to the jury.

[00:48:58] Speaker 04:
If we have to go back and do a Nova Scotia process, we will.

[00:49:01] Speaker 04:
But you can declare right now that the government has admitted that these guys didn't do it, that someone else did count one.

[00:49:08] Speaker 04:
They're only charged with count one.

[00:49:10] Speaker 04:
They didn't do it.

[00:49:11] Speaker 01:
Do you have any precedent for a court of appeals issuing any kind of declaratory relief even close to where you're seeking?

[00:49:18] Speaker 01:
Any precedent for that?

[00:49:20] Speaker 04:
I would only say that the Bender case, which is we raised it, they didn't rebut it, so they waived it.

[00:49:30] Speaker 04:
You have the raw power under the Declaratory Judgment Act.

[00:49:37] Speaker 04:
You can declare the legal relations and other rights of any interested party in that language.

[00:49:41] Speaker 04:
Assuming there's jurisdiction.

[00:49:43] Speaker 04:
Absolutely, assuming there's jurisdiction.

[00:49:49] Speaker 05:
So can I just take you back to jurisdiction?

[00:49:54] Speaker 05:
We've asked some tough questions on the other side, but my question for you is, we do have this Supreme Court opinion in par, and it does seem to say, the first half of the opinion seems to say if you assume only one indictment that's been dismissed without prejudice,

[00:50:19] Speaker 05:
An appeal will not lie because the petitioner has not been aggrieved.

[00:50:24] Speaker 05:
So far as petitioners standing to appeal is concerned, it makes no difference whether the dismissal leaves him open to further prosecution.

[00:50:32] Speaker 05:
He has to wait until he's re-prosecuted and convicted and only then will he have been aggrieved.

[00:50:40] Speaker 05:
might or might not be consistent with other lines of cases and theories of standing and such that have evolved, Lexmark and your cases on reputational standing and so on, but the holding of the Supreme Court.

[00:50:57] Speaker 05:
So how do we get around that?

[00:51:03] Speaker 04:
We're alleging injuries that Mr. Parr didn't allege.

[00:51:09] Speaker 04:
He was trying to get out of something.

[00:51:11] Speaker 04:
And yes, they divided it up.

[00:51:13] Speaker 04:
I'd have to go back and look at the declarations that were submitted in Parr.

[00:51:16] Speaker 04:
But he didn't say, employers won't employ me.

[00:51:19] Speaker 04:
Well, we said it, and they haven't established that Mr. Parr also said it.

[00:51:23] Speaker 04:
So standing isn't entirely legal.

[00:51:28] Speaker 04:
It's factual as well.

[00:51:30] Speaker 04:
And we put the facts in the record.

[00:51:32] Speaker 04:
I don't know if Mr. Parr did or not.

[00:51:34] Speaker 05:
Seems like it's a pretty categorical statement

[00:51:39] Speaker 05:
that a grievement doesn't happen until reprosecution and conviction, whether it's a matter of Article III or whether it's just a court-made rule of appellate standing.

[00:52:03] Speaker 04:
Go ahead.

[00:52:03] Speaker 04:
I'm sorry.

[00:52:04] Speaker 01:
I don't want to cut you off if you're ready with an answer.

[00:52:06] Speaker 04:
I'm trying to think of these court-made rules of appellate standing, and I'm trying to think if – I guess they haven't waived anything, because those aren't jurisdictional.

[00:52:13] Speaker 04:
They're – but I gather – I mean, I don't understand.

[00:52:16] Speaker 04:
There's no way I can say that you waived that.

[00:52:18] Speaker 01:
So I mean, in terms of agreement with respect to prosecution, it doesn't happen until re-prosecution.

[00:52:26] Speaker 01:
Now, to the extent that what your clients are asserting is an accompanying harm that has to do with reasons.

[00:52:35] Speaker 04:
That's what I tried to say, yes.

[00:52:37] Speaker 01:
I'm really not seeing in the record, notwithstanding the district judge's invitation,

[00:52:45] Speaker 01:
any motion for that accompanying reason giving relief.

[00:52:54] Speaker 04:
Okay so the district judge had this motion pending for almost two years and then on the eve of the hearing he came up with an argument that he made up

[00:53:04] Speaker 04:
and dismissed us after making us wait two years.

[00:53:08] Speaker 04:
And so we filed an emergency motion for reconsideration saying that we have 14 days to appeal.

[00:53:13] Speaker 04:
Here's all the reasons why it's wrong.

[00:53:15] Speaker 04:
And the government agreed with us that his reason was wrong.

[00:53:18] Speaker 04:
He made it up just out of the blue.

[00:53:20] Speaker 04:
And so he withdrew that one.

[00:53:22] Speaker 04:
And so he's done it again here.

[00:53:23] Speaker 04:
He's made arguments they didn't make below, some of which are nonsense, some of which are just unfair.

[00:53:28] Speaker 04:
The nonsense one would be the

[00:53:33] Speaker 04:
the fact that the sovereign nation of Barbados can't release or bail its citizens being held pending extradition in the United States until he issues an order dismissing the charges.

[00:53:42] Speaker 04:
He made that up without citation, just threw it in there.

[00:53:45] Speaker 04:
And so that's the notion that there's no misconduct based on things like that.

[00:53:50] Speaker 04:
So we disagree with the government vociferously.

[00:53:55] Speaker 04:
There was, we believe, misconduct here.

[00:53:59] Speaker 01:
Horrible misconduct.

[00:53:59] Speaker 01:
And in your view, it is misconduct

[00:54:01] Speaker 01:
in the Nova Scotia sense that goes to the nature of what the grand jury is?

[00:54:06] Speaker 04:
If I may, I'll certainly get to that.

[00:54:09] Speaker 04:
So we appeal because, I mean, we will get to Nova Scotia if we have to.

[00:54:14] Speaker 04:
We will move for an expunge if we have to.

[00:54:17] Speaker 04:
But we think we've got all we need right here.

[00:54:19] Speaker 01:
And if we don't, and if you're... In other words, you think you've made in the trial court enough of a request for those reasons?

[00:54:25] Speaker 04:
No, no, I'm sorry.

[00:54:25] Speaker 04:
No, we haven't gone to those steps.

[00:54:27] Speaker 04:
But the government here has admitted they didn't do it.

[00:54:30] Speaker 04:
And so we don't think we need to go there.

[00:54:33] Speaker 04:
I mean, we're certainly willing to go to Nova Scotia, and I don't have the grand jury proceedings, but obviously there was false information there, because they later said we didn't do it.

[00:54:42] Speaker 04:
But we will go there if we need to.

[00:54:44] Speaker 03:
Thank you.

[00:54:45] Speaker 01:
Oh, I'm sorry.

[00:54:47] Speaker 03:
You know, it's interesting.

[00:54:49] Speaker 03:
As I recall, there's another jurisdictional problem here potentially.

[00:54:55] Speaker 03:
Camereta is an interesting opinion for you to cite.

[00:54:59] Speaker 03:
It's in the civil context.

[00:55:01] Speaker 03:
If you recall, I think Camereta also says that although it's interesting, because they talk about Article III standing, but they also talk about the prudential limitations.

[00:55:12] Speaker 03:
So the court, once again, is all over the place.

[00:55:15] Speaker 03:
But in any event, in the end, they say it's moot.

[00:55:19] Speaker 03:
And if you tie that together with the reference in Parr,

[00:55:24] Speaker 03:
The statute of limitations may render the case moot.

[00:55:28] Speaker 03:
You've got a real problem taking your best case, comrade, and tying its holding together with what the Supreme Court says in part, in part, if nothing else, the matter's moot.

[00:55:41] Speaker 03:
because of the statute of limitations.

[00:55:44] Speaker 03:
At least as a judge looking at precedent and trying to make some sense of this, I don't see how you get past that.

[00:55:49] Speaker 04:
Okay, we cited in the brief, and I don't know the names of the cases.

[00:55:52] Speaker 04:
I can grab them very quickly.

[00:55:54] Speaker 04:
But that's an affirmative defense.

[00:55:56] Speaker 04:
We don't have to raise it.

[00:55:58] Speaker 04:
So, I mean, if it's- Mootness is- Mootness is- No, no, no.

[00:56:01] Speaker 04:
Statute limitations is an affirmative defense.

[00:56:03] Speaker 01:
I didn't understand that.

[00:56:04] Speaker 01:
You said in the brief we would have to raise it.

[00:56:06] Speaker 01:
You're not going to raise it in order to create a risk of re-prosecution?

[00:56:11] Speaker 01:
It just doesn't make sense.

[00:56:12] Speaker 04:
Well, it was perhaps facile, and I apologize if I shouldn't have raised it.

[00:56:17] Speaker 03:
But it's there.

[00:56:18] Speaker 03:
It's been raised, and the government observes it.

[00:56:20] Speaker 03:
And we're looking at it, and we're thinking in terms of jurisdictional matters.

[00:56:24] Speaker 03:
And so you may end up with something that's moot.

[00:56:28] Speaker 04:
No, I understand.

[00:56:29] Speaker 04:
So we try to argue that the passing of the statute of limitations doesn't moot the relief we're requesting because

[00:56:39] Speaker 04:
because we would have to affirmably raise the statute of limitations.

[00:56:43] Speaker 03:
They would have to remonstrate.

[00:56:44] Speaker 04:
So, now that's a little far-fetched.

[00:56:46] Speaker 04:
I'll grant you that.

[00:56:46] Speaker 03:
That was far-fetched.

[00:56:47] Speaker 03:
That's why I wasn't remembering.

[00:56:49] Speaker 03:
It's a very far-fetched statement.

[00:56:50] Speaker 04:
Okay, very far-fetched.

[00:56:51] Speaker 04:
Not a little.

[00:56:52] Speaker 04:
But the harms are ongoing, and the black box, however it's, whatever the judgment you call it, the black box can explain under the Declaratory Judgment Act that the government has admitted that these guys didn't do it.

[00:57:07] Speaker 05:
The harm you allege, which you say wasn't alleged in par, is reputational injury, right?

[00:57:18] Speaker 04:
Reputational, which goes into employment, and also with Mr. Gaskin, there's integration consequences.

[00:57:25] Speaker 05:
But that flows from the prosecution, right?

[00:57:31] Speaker 05:
The fact that they were indicted and then

[00:57:34] Speaker 04:
Uh, have you ever been arrested?

[00:57:36] Speaker 04:
Prosecution went forward.

[00:57:38] Speaker 05:
Sorry?

[00:57:40] Speaker 05:
That flows from the abandoned prosecution, right?

[00:57:45] Speaker 05:
I think it's... I mean, the reason I'm asking this is we have a line of cases on reputational injury which say that sometimes it qualifies as an Article III injury

[00:58:03] Speaker 05:
but not when the reputational harm flows from an otherwise moot aspect of a case.

[00:58:12] Speaker 05:
So just to make that less abstract, right, a defendant who is harmed by a statute that remains on the books that brands the defendant a child abuser,

[00:58:28] Speaker 05:
can challenge the statute, but it's still on the books or the judge who is harmed by a misconduct finding that's on the public record can challenge the misconduct finding.

[00:58:45] Speaker 05:
That seems different from what we have here where you say your client is harmed by

[00:58:55] Speaker 05:
an indictment and or prosecution that's been abandoned and as dead as dead can be.

[00:59:02] Speaker 04:
I thought your two examples didn't align.

[00:59:06] Speaker 04:
So a misconduct finding is a factual finding.

[00:59:08] Speaker 04:
You did these things.

[00:59:10] Speaker 05:
I'm not talking about the misconduct.

[00:59:11] Speaker 05:
I'm talking about

[00:59:13] Speaker 05:
The statute in Fortich is still on the books.

[00:59:19] Speaker 05:
To make this analogous, it would seem to me in Fortich you would have to have the statute that is alleged to be the bill of attainder is repealed for unknown reasons and then the defendant comes in and says, well yes, but I want a declaratory judgment

[00:59:40] Speaker 05:
that it was a bill of attainder, because I still have this harm of having been labeled a child molester.

[00:59:48] Speaker 05:
And we would not allow that.

[00:59:50] Speaker 04:
That seems correct.

[00:59:51] Speaker 05:
I don't know for you.

[00:59:52] Speaker 05:
That seems analogous here.

[00:59:53] Speaker 05:
The prosecution has been abandoned.

[00:59:57] Speaker 04:
But it's still illegal to deal drugs, and the government still said that these guys did it, and then the government later admitted that they didn't do it.

[01:00:03] Speaker 04:
And they're fighting us for some reason.

[01:00:05] Speaker 05:
In a prosecution that's

[01:00:08] Speaker 05:
no longer pending.

[01:00:11] Speaker 04:
But it's the shadow of it still lingers in Barbados.

[01:00:15] Speaker 04:
I don't know if it should, but it does.

[01:00:20] Speaker 01:
OK.

[01:00:23] Speaker 01:
Thank you.