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Case number 18-3056, United States of America versus Stephen Mason, also known as Sam Mason, appellant.

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Mr. Smith for the appellant.

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May it please the Court, my name is Greg Smith, appointed counsel for Stephen Mason, and I'm here to ask you to reverse and remand.

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But I also ask you today for a decision as soon as possible and before this Court issues any written opinion, because Mr. Mason is currently incarcerated only on a mandatory minimum sentence.

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So if you are inclined to reverse on any of our three grounds, please do issue a decision promptly

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without waiting for an opinion, so Mr. Mason can again get released on bail during his remand as he was before the trial below.

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The three grounds here are strong.

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Brady violation, mis-joinder and failure to sever, and mis-application of the safety valve.

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All three, including materiality on Brady, which really equates to the prejudice question, all three of our issues are reviewable de novo.

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On the Brady violation, I've never seen one this blatant.

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even seasoned counsel below was shot.

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I don't know how prosecutors could possibly hold onto a smoking gun like this for over six months.

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really nine months, especially when it's not even in the hands of law enforcement officers, but the prosecutors themselves, who were using the same information for their own purposes.

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You have to show that if you had the information earlier, that it would have undermined the confidence in the outcome.

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How would that have happened here with Mr. Jazz's untimely death?

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Good question.

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Thank you.

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If you'd been told on March 10th that Walker had gotten a letter from one of his co-defendants saying, I plan to lie against the others at trial, if you're the defense lawyer, what would you have done?

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You would have immediately called up Walker's lawyer.

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and ask for the letter.

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There's no reason to think that Walker's attorney would have refused the letter because he wasn't cooperating yet.

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So if you meet with Walker, and if you meet with Walker himself, you show him the letter, you get a sworn affidavit from Walker before he starts cooperating.

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And even if Walker's attorney did refuse, his attorney would surely at least have called the government.

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So the government likely would have talked to Walker's lawyer, would have found out about Jazz long before June 1st.

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Walker or any attorney, either Walker or an attorney for the government, would have told Defendants' Council.

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But what happens at trials different?

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Jazz is dead.

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Jazz is dead, but you would have people that had spoken to Jazz.

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This is rank hearsay.

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How do you get in?

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You don't get it in as evidence.

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There's no exception to hearsay.

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This applies to hearsay.

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You use it for impeachment, right?

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And Jones was thoroughly impeached at trial.

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So that's what I'm trying to get at.

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What difference does it make?

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Well, there was a huge difference between how Jones was impeached at trial and how he could have been impeached with this evidence.

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All they had at trial for impeachment was, isn't it true you told the truth but late to the government agents who were interviewing you?

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That is a far cry from, isn't it true that you said you were going to lie on your co-defendants?

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If it had been timely disclosed, you could have had a sworn interview with Walker,

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showing him this, getting him to acknowledge that Jazz had told him this.

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Couldn't they have done that anyway?

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They had the document.

[00:03:29] Speaker 02:
But it was delayed, Your Honor.

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They did get one chance, one chance through good lawtering to talk to Walker.

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They chose not to use it at the trial.

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They tried to call Walker.

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Well, yes, but only because of the way it was structured.

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They spoke to Walker in December without the letter.

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They didn't know the letter existed.

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And that alone was prejudiced.

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If they'd been able to show the document to Walker, here's what would have happened.

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Walker either would have admitted it, and then they could have had evidence that Walker admitted it.

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Or, well, that's probably what would have happened.

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They would have shown him and confronted him with the letter during their one interview.

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This was good lawyering below by the defense.

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They actually got a chance to talk to Walker in December before he clammed up, took the fifth, wouldn't go in trial, and wouldn't say yes.

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This Jones wrote this letter and I knew it.

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They had at one chance to talk to Walker, but they didn't have the letter.

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They didn't know about the letter.

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And when they finally did get the letter, Walker had changed his mind.

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They missed their chance to be able to say that.

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So what would have happened?

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Lots of different things would have happened.

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They would have had a chance to talk, find Jazz, talk to Jazz, get Jazz's uncle to corroborate what he said.

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And they could have called Walker.

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Or if Walker wouldn't testify, then at least you could have brought your investigator to take the stand.

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If Jones denied it.

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have your investigator say, well, I talked to Walker, and Walker said that he did, in fact, write that.

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Plus, he would have had lots of arguments to make related to the hearsay exemption related to, who could have testified?

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Walker possibly?

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Jazz possibly?

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Jazz's uncle possibly?

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And any investigator, defense investigator, that talked to any of those people potentially could have given a statement saying, yes, we heard that Jones wrote this letter.

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We know he failed the polygraph.

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This whole line of inquiry matters only for impeachment, and it's effective only if Jones wrote that letter.

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And we know that

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the letter was subjected to handwriting analysis, which came back definitively that Jones did not write the letter.

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Well, that was the government's expert said that.

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And you had a chance to get another expert and was satisfied to leave that to the expert, the government's expert.

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Yeah, I don't know what to say about that.

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Maybe there's an ineffectiveness issue.

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I don't know the answer to that.

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But at the end of the day, we have evidence, we have forensic evidence to the effect that Jones did not write that letter.

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And that's why they didn't end up cross-examining him is because it had been stacked to where Jones could deny it and knew he'd be backstopped.

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The defense also wasn't able to put in the polygraph that showed that Jones had been lying when he said he didn't write that.

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hypotheticals about what might have happened talking to Jones, talking to Walker, et cetera.

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But there's no reason to think that any of that would impact the assessment of the handwriting expert.

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Not of the handwriting expert, but instead of the defense being too scared to raise this because of the handwriting expert, if they had evidence that they could have been able to get through other witnesses saying, yes, we heard Jones wrote this, it would have been at least a fair fight.

[00:07:03] Speaker 02:
The way it was played out, the government had skewed it to where they had it lined up the way they wanted, where Jones was denying it.

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And despite the polygraph, they excluded the polygraph and they put in their own expert.

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But could the defense have done more in getting their own expert?

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Sure.

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But what they also could have done and didn't do was, and because they didn't have a chance to do it, was to get witnesses that say that Jones wrote, that's the piece that was missing.

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And that would have changed the trial.

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purely reasonable doubt case, and it all depended on Jones's credibility.

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So anything that was underlying Jones's credibility was potentially going to affect this trial.

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So let's pursue that.

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Okay.

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So assume Jones is not a credible witness.

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You still have all of the wiretaps which show

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which show Mason conspiring with Jones.

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But not the mandatory minimum, if Your Honor, and that's the key piece.

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The jury decided the mandatory minimums, and without Jones' testimony, they don't get a mandatory minimum conviction.

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They don't.

[00:08:06] Speaker 01:
Well, why not?

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I'm sorry, that's the 100 grams issue?

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Yes.

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Yes.

[00:08:11] Speaker 01:
Go ahead.

[00:08:12] Speaker 01:
So why wouldn't the government be able to fill in that evidence?

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Because it depended on Jones interpreting the wiretap evidence, Your Honor.

[00:08:20] Speaker 01:
But it's like four or five.

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What does that mean?

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So an FBI expert gets on.

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The four or five, that's right.

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What does it mean?

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And the only way they were able to get in evidence that that meant more than four or five grams, for example, was through Jones.

[00:08:37] Speaker 01:
Well, they knew how much lower was received.

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Well, Your Honor, I

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Don't agree with that analysis.

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I think it depended on Jones interpreting the evidence for them to get to the hundred grand.

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I appreciate that.

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I'm just trying to think of what other evidence there was and also what other evidence the government had.

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I believe that even at the sentencing, it was acknowledged by the district court below that they had depended on Jones to get them to the hundred grand.

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Well, I understand.

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It's fact.

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But was that the only evidence before the court?

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There was nobody else saying he had distributed any large quantities, Your Honor.

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Mr. Smith, could you clarify for me again, dealing with the hypothetical here, had there been an interview of Jazz before his death, how do you imagine that could have benefited?

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Well, it could have been a dying declaration.

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They also perhaps could have subpoenaed him and monitored him so he never died.

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How do you get dying declaration?

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Well, they could have also attempted to use the residual hearsay exception for indicia of reliability.

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And that opportunity was deprived.

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They were deprived of that opportunity to present to the judge.

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And look, if you get Jazz saying it, if you get Walker confirming it, if you get Jazz's uncle confirming it, you start getting into indicia of reliability to where the hearsay exception on the residual exemption has a lot more credibility to it.

[00:10:02] Speaker 02:
That opportunity was denied.

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But the bigger question is I just, I mean look, they held on to a document that was just kryptonite for six months and I don't know how this court feels about that.

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I just can't even fathom how they hold on to a document like this.

[00:10:23] Speaker 04:
The standard is prejudice, though, right?

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We're not here to supervise the processes.

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But here, I guess what I would say to the court is this.

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It seems like the prejudice prong – look, you have supervisory powers.

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It seems like the prejudice prong of Brady has been morphed into an unwritten timing rule

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on the other side, where it's supposed to be turned over immediately.

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But under the prejudice prong, they seem to have this view that if it's turned over a month before trial, it's a safe harbor.

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They were spending weeks writing this and wordsmithing this 10-page single-space document when it contains brain.

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I mean, they're supposed to be turned over immediately.

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Why aren't they turning it over piecemeal?

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Why are they wordsmithing this document for weeks?

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And then they turn it over a month before trial, and they're like, what have they got to complain about?

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It's a month before trial.

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We see this over and over.

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And it is dangerous to justice.

[00:11:24] Speaker 04:
Where's the law that says it needs to be turned over immediately?

[00:11:28] Speaker 02:
The law is pretty clear under Brady, Your Honor, that Brady's obligation is immediate upon them receiving the information, particularly here when they're using it for their own purposes but denying it to the defense, where they're confronting Jones in a debriefing.

[00:11:44] Speaker 02:
Where does it say that?

[00:11:45] Speaker 04:
You're making that statement.

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Give me a citation.

[00:11:47] Speaker 04:
I don't have it off the top of my head, Your Honor.

[00:11:49] Speaker 04:
I'm not certain it exists.

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I'm not certain the Supreme Court's ever said that.

[00:11:53] Speaker 02:
Your Honor, I believe it's... I will supplement it before it gets released.

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I think we've said in time to ensure effective trial preparation.

[00:12:03] Speaker 02:
That is... Well, see, this is the issue, Your Honor.

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There's the requirement of immediacy, but then if there is a violation, are you going to forgive it?

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The trial preparation relates to whether you're going to forgive it.

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And I guess this is what I'm saying.

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Instead of asking for permission, they're asking for forgiveness.

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That's exactly the mindset that seems to be taking place over here.

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That as long as they turn it over a month before trial, nobody's going to care.

[00:12:30] Speaker 03:
I think what Judge Griffith and I are asking you is not the question of prejudice, but the question of when the duty to disclose arises.

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Your theory is it was in March.

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at a time when the trial date hadn't been set.

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It wasn't going to be set until almost a year later.

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The government's still figuring out who are going to be their witnesses, who's cooperating, who's not.

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I don't know of any case that says they have to turn over evidence on that at a stage like that.

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on the theory that some unforeseeable event might, a witness might die or a document might be destroyed or something like that.

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Well, let me supplement to the court, I think.

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What I would like to do is to move on to the severance issue, which I think is maybe even stronger.

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They falsely said in their indictment that Miller and Mason had conspired together.

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That was not so.

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They never conspired together.

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And the fact that the government makes a false statement in its indictment can't possibly end the inquiry.

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More importantly, even if Rule 8 joined or can be upheld, the failure to sever Mason under Rule 14 analysis cannot be upheld.

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If Rule 8 is really that liberal, Rule 14 can't be a meaningless backstop.

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This was a highly unusual case, not one involving mere risks of spillover prejudice, but this was spilled over prejudice.

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We had a juror who acknowledged

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that she was confused.

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She admitted she believed the evidence of guilt presented only against Miller was evidence of guilt against Mason, and she continued to harbor that belief despite previous efforts to clarify otherwise.

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The government tries to suggest that this view was not proven to be shared by the jury as a whole, but that isn't the standard.

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Mason is constitutionally entitled to a unanimous jury.

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One juror finding him guilty illegally or improperly is enough.

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And that's especially true since this juror also later turned out to be the fourth person.

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The most confused juror is the fourth person.

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The government said below and tries to say here that it carefully segregated the evidence between the defendants, but the record shows otherwise.

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The government's representation of the record below was false.

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They didn't surgically segregate the defendants.

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Frankly, they conflated the two intentionally.

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They affirmatively noted they'd been arrested the same day, were the same age, and part of the same investigation.

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in an effort to slyly convey to the jury and suggest improperly that there was some connection between them.

[00:15:21] Speaker 02:
When that led to juror confusion, how did the district court react?

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The court acceded to the government's demands that she couldn't tell the jury that their view of the evidence was wrong.

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And instead, she gave about as watered down an instruction as one can imagine.

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I believe you may get the answer to your question as the evidence continues.

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And if you don't, you can come back and ask me other questions.

[00:15:46] Speaker 02:
That is as weak as it gets.

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And the court's abdication of its own responsibility to ensure a fair trial onto the jury was insufficient.

[00:15:56] Speaker 02:
A judge can't say, I'll assume this trial is fair unless you, the jury, come back and tell me otherwise, especially when you're putting that on the one juror who is admittedly confused.

[00:16:07] Speaker 02:
Further clarifying efforts that ensued through the government's questioning of Jones were also sufficient.

[00:16:12] Speaker 02:
They weren't materially different than the earlier attempts that had failed when Carney had asked those questions.

[00:16:19] Speaker 02:
And at most, it only would have clarified the testimony of this one witness, Jones.

[00:16:23] Speaker 02:
Look at what the juror asked that Jones be questioned about.

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She said, ask Jones why he or Walker

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chose Mason's house for the drug delivery and whether he or Walker had a relationship with Mason or chose it at random.

[00:16:40] Speaker 02:
The confused juror may have heard evidence that Jones and Mason had a relationship and thought, well, that answers my question.

[00:16:47] Speaker 02:
There's no need to follow up.

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And the fact that Jones didn't know about Mason's house doesn't mean Walker didn't know about Mason's house.

[00:16:57] Speaker 02:
The confusion that she had was not adequately cleared up by the clarification.

[00:17:04] Speaker 02:
And even if you did have assurance that the juror would necessarily have asked follow-up questions, which you don't, there's no reason to know that her verdict was not based in part on spilled over prejudice.

[00:17:16] Speaker 02:
Look, I understand severance issues that are successful but rare.

[00:17:21] Speaker 02:
But this is one.

[00:17:23] Speaker 02:
We don't ever see in the case law, all the cases cited by the other side, a situation where a juror specifically said, I believe that evidence against defendant A is evidence of guilt as to defendant B. That's what we have here.

[00:17:39] Speaker 02:
This is a highly unusual, extraordinary case.

[00:17:42] Speaker 02:
And the government didn't immediately clean this up after the jury asked that question, and the court gave its watered down instructions.

[00:17:49] Speaker 02:
It waited until later, wedging it in briefly before the

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The wiretap evidence that was the most dramatic in the case, squeezing it in there to try to minimize the corrective effect.

[00:18:00] Speaker 02:
This wasn't a real effort to stanch the taint, addressing it head on.

[00:18:05] Speaker 02:
Instead, it was buried with the government doing the bare minimum in a case where the government had also pushed the envelope in other ways.

[00:18:12] Speaker 02:
The fentanyl evidence, for example, trying to suggest my client was trying to kill his customers over the top.

[00:18:18] Speaker 02:
Throughout this case, we see over the top Brady withheld the hints about these two defendants being related when they weren't in an effort to slyly encourage the jury to think they were.

[00:18:30] Speaker 02:
The delayed correction.

[00:18:32] Speaker 02:
Throughout all of this, taken together, this appears to have been a win-and-all cost of prosecution, and it ought to give this court pause.

[00:18:40] Speaker 02:
As the Supreme Court and this court have noted, motions for severance are particularly sensitive in conspiracy cases because of a recognized danger that guilt of one defendant may be transferred to another.

[00:18:54] Speaker 02:
And as this court has also said, any serious doubts in this context must be resolved in favor of a defendant.

[00:19:03] Speaker 02:
Those doubts persist here and have not sufficiently been eliminated.

[00:19:07] Speaker 02:
Retrying this case would also be easy and quick.

[00:19:10] Speaker 02:
Most of the evidence below was against Miller, not Mason.

[00:19:13] Speaker 02:
This would be a very quick and easy retrial, and this court ought to uphold the sanctity of the process by sending this back for the quick and easy individualized trial that Mr. Mason deserves.

[00:19:25] Speaker 02:
Finally, as we noted, the court also lacked authority to – erred in believing it lacked authority to give Mr. Mason a mandatory minimum sentence.

[00:19:34] Speaker 02:
because he was not asked about the evidence only related to this case.

[00:19:39] Speaker 02:
He was asked only about the names of those he had worked with in the drug trade generally and in the illegal drug trade generally, not specific to this case.

[00:19:49] Speaker 01:
All right.

[00:19:49] Speaker 01:
Why don't we hear from the government who will give you some time on rebuttal.

[00:19:52] Speaker 02:
Thank you, Your Honor.

[00:19:53] Speaker 02:
I appreciate the time.

[00:20:01] Speaker 00:
Good morning and may it please the court, Dan Lenners for United States.

[00:20:05] Speaker 00:
To start with Judge Griffith and Judge Katz's question, this court has said that disclosure by the government must be made at such a time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case.

[00:20:20] Speaker 04:
Why the delay from June to December?

[00:20:23] Speaker 04:
What possible reason was there for the government to hold on to that

[00:20:29] Speaker 04:
Your friend called it kryptonite.

[00:20:32] Speaker 04:
That's not certain I'm going to call it that, but it was very helpful information for Mr. Mason.

[00:20:40] Speaker 04:
Why did the government hold onto it for so long?

[00:20:44] Speaker 00:
Your Honor, the prosecutors involved in this case are no longer in the office.

[00:20:48] Speaker 00:
And so I am stuck with what they said.

[00:20:50] Speaker 04:
Is that related to them having held on to it so long?

[00:20:52] Speaker 00:
Well, obviously I can't ask.

[00:20:54] Speaker 00:
I can ask them personally, Your Honor.

[00:20:56] Speaker 00:
So I'm relying on the December 2017 motions hearing, what they said during that hearing, and inferences I've drawn from that.

[00:21:04] Speaker 00:
And the way I've read that hearing is to say that they believe this was impeachment, not exculpatory, which is true, that they believe that a month before trial was sufficient time for the defense to use impeachment information

[00:21:22] Speaker 00:
And they had witnessed security concerns about disclosing the letter because its disclosure, they said, would only make sense in context if they revealed that Jones and Walker were cooperating with the government.

[00:21:36] Speaker 00:
And so at that point in June, Walker had just begun to debrief with the government.

[00:21:42] Speaker 00:
Jones had been debriefing but had not yet entered a cooperation agreement.

[00:21:46] Speaker 00:
There was no trial they said.

[00:21:48] Speaker 01:
So telling the defense that

[00:21:50] Speaker 01:
Jones had written this letter would disclose that they were cooperating?

[00:21:56] Speaker 00:
How?

[00:21:58] Speaker 00:
It would disclose that Walker was cooperating.

[00:22:02] Speaker 00:
How?

[00:22:03] Speaker 00:
Because they got the letter from Walker, and Walker was the one who said that Jones had written it.

[00:22:09] Speaker 00:
We don't know that Jones wrote it.

[00:22:10] Speaker 00:
In fact, the handwriting analysis said that he did.

[00:22:14] Speaker 01:
So if somebody turns over a Brady document,

[00:22:20] Speaker 01:
that signals that that person is cooperating and therefore is in jeopardy?

[00:22:26] Speaker 00:
That was the prosecutor's evaluation in this case.

[00:22:29] Speaker 00:
Yes, Your Honor.

[00:22:31] Speaker 01:
Isn't that true in most of these conspiracy cases?

[00:22:36] Speaker 00:
Isn't what true, Your Honor?

[00:22:37] Speaker 01:
Cooperation is going on.

[00:22:40] Speaker 00:
It's true that cooperation is often going on, but who specifically is cooperating is not something that's broadly disclosed.

[00:22:49] Speaker 01:
So where is that listed as a Brady exception?

[00:22:54] Speaker 00:
Your Honor, it's not an exception.

[00:22:56] Speaker 00:
The prosecutors turned it over.

[00:22:58] Speaker 00:
They recognized that they were required under Brady to

[00:23:01] Speaker 00:
to produce impeachment information.

[00:23:03] Speaker 00:
And in so doing, effectively disclose who's cooperating.

[00:23:08] Speaker 00:
Yes.

[00:23:08] Speaker 00:
Effectively disclose who's cooperating by showing from whom they got the letter.

[00:23:13] Speaker 00:
And also, they had to reveal their efforts to verify whether Jones.

[00:23:17] Speaker 01:
All I'm trying to understand is why is that different in December than in June?

[00:23:23] Speaker 00:
Because by December, they had a trial date a month away.

[00:23:26] Speaker 00:
And so at that point- It's irrelevant.

[00:23:29] Speaker 01:
Either they're going to plead or they're going to trial.

[00:23:31] Speaker 01:
There's no indication here, unless they cooperate, that the government's going to enter into any plea deals.

[00:23:38] Speaker 00:
I'm sorry, I don't understand your question, Your Honor.

[00:23:39] Speaker 00:
It's relevant because by that point, the government has to identify its cooperators because it has to identify its witnesses at trial and any impeachment information it has about them.

[00:23:51] Speaker 01:
But I just have never seen that in a case.

[00:23:54] Speaker 01:
Maybe I just haven't noticed it.

[00:23:58] Speaker 00:
There are very real witness security concerns in many of our cases.

[00:24:02] Speaker 01:
I mean, Brady is implicating a constitutional interest.

[00:24:08] Speaker 00:
Yes, Your Honor.

[00:24:11] Speaker 01:
I don't see this as an exception.

[00:24:13] Speaker 00:
There's no claim of an exception here, Your Honor.

[00:24:17] Speaker 00:
This Court has said that

[00:24:19] Speaker 00:
Neither this court nor the Supreme Court has ever said that Brady information, whether exculpatory or impeachment, has to be produced immediately.

[00:24:28] Speaker 00:
This court has said that it has to be produced at a time to allow the defense to use it effectively in the preparation and presentation of their case.

[00:24:36] Speaker 01:
And in this case, the district court continued the trial to give the defense some time.

[00:24:45] Speaker 01:
So clearly the district court didn't think that was adequate.

[00:24:49] Speaker 00:
That's correct, Your Honor, and we aren't defending the timeliness of the disclosure.

[00:24:53] Speaker 01:
So why didn't you turn it over in June?

[00:24:56] Speaker 00:
Again, Your Honor, I'm relying on what the prosecutor said at the December hearing.

[00:25:00] Speaker 00:
They thought it was impeachment.

[00:25:02] Speaker 01:
Are there some U.S.

[00:25:03] Speaker 01:
attorney policies that are written about this?

[00:25:06] Speaker 00:
There is the Justice Manual, Your Honor.

[00:25:08] Speaker 01:
And what does it say about this?

[00:25:10] Speaker 01:
Anything?

[00:25:11] Speaker 00:
It does, Your Honor.

[00:25:13] Speaker 00:
The Justice Manual distinguishes between exculpatory Brady and impeachment Brady.

[00:25:18] Speaker 00:
I don't have the exact quote for exculpatory Brady, but it has to be turned over very quickly.

[00:25:24] Speaker 01:
As to impeachment, what the Justice... But what I'm getting at, is there anything in the guidance that says the prosecutor should take into account the timeliness of turning it over as to whether or not it's likely to disclose

[00:25:38] Speaker 01:
Cooperators?

[00:25:39] Speaker 00:
Yes, Your Honor.

[00:25:40] Speaker 01:
It's in there?

[00:25:40] Speaker 00:
Yes, Your Honor.

[00:25:41] Speaker 00:
Justice Manual Section 9-5.001 says impeachment information will typically be disclosed at a reasonable time before trial to allow the trial to proceed efficiently.

[00:25:53] Speaker 00:
That didn't occur here.

[00:25:54] Speaker 00:
We can see that.

[00:25:55] Speaker 01:
No, no, no, no.

[00:25:56] Speaker 01:
You didn't answer my question.

[00:25:58] Speaker 01:
It's not in the manual.

[00:25:59] Speaker 01:
That's all the manual says.

[00:26:00] Speaker 00:
The next sentence, Your Honor, is that in some cases, a prosecutor may have to balance the goals of early disclosure against other significant interests, such as witness security and national security, and may conclude that it is not appropriate to provide early disclosure.

[00:26:16] Speaker 01:
All right.

[00:26:16] Speaker 01:
So there's no national security here, right?

[00:26:18] Speaker 01:
So it's just the security of the witnesses who are cooperating?

[00:26:23] Speaker 04:
Yes, Your Honor.

[00:26:24] Speaker 04:
So here's my concern if you can address it.

[00:26:28] Speaker 04:
Had the government notified Mr. Mason's counsel in March that this document existed, isn't it reasonable to assume that Mason's counsel would have

[00:26:45] Speaker 04:
reacted to that, would have sought out, as your friend identified, would have talked to Mr. Walker, would have sought out Jazz, would have pursued lots of lines of inquiries, all of which were foreclosed to them.

[00:27:00] Speaker 04:
by the government's decision to sit on the document and then the unfortunate happenstance of Jazz's death.

[00:27:08] Speaker 04:
There's a whole line of inquiry, a whole preparation for defense that was foreclosed because of the decision to sit on it and not to disclose it.

[00:27:20] Speaker 04:
I'm talking about in March.

[00:27:22] Speaker 00:
I understand, Your Honor.

[00:27:24] Speaker 00:
with your characterization of sitting on the document.

[00:27:27] Speaker 00:
The government didn't have the document and didn't know for sure it existed until June.

[00:27:33] Speaker 04:
But they thought it was a credible enough story that they pursued it.

[00:27:38] Speaker 04:
The government pursued it, right?

[00:27:40] Speaker 00:
Yes, Your Honor.

[00:27:41] Speaker 00:
In March, all the government knew were two things.

[00:27:44] Speaker 00:
that a co-author and an unrelated case said that Walker had showed him a letter, said it was written by one of Walker's 12 co-defendants, and that the writer said that he was going to lie about Walker, and that Jones denied writing or knowing about such a letter.

[00:28:05] Speaker 00:
That's all the prosecution knew.

[00:28:07] Speaker 01:
Well, the prosecutor could have picked up the telephone and talked to Walker's attorney.

[00:28:11] Speaker 00:
There's no reason to believe that Walker's attorney would have cooperated with the prosecution at this point.

[00:28:15] Speaker 01:
Well, you could find out.

[00:28:18] Speaker 00:
We'll never know, will we?

[00:28:20] Speaker 00:
We will never know, Your Honor.

[00:28:22] Speaker 00:
But all of that is speculative.

[00:28:25] Speaker 01:
But it's just an extraordinary situation to have a key potential government witness, one of the leaders of the drug conspiracy, to allegedly have written a letter

[00:28:40] Speaker 01:
not just some casual conversation, or had somebody else write the letter for him, that he's going to go down to court and lie against everybody.

[00:28:51] Speaker 00:
I agree that it is impeachment information.

[00:28:54] Speaker 00:
The government didn't know that Jones was the alleged author until June.

[00:28:59] Speaker 00:
In March, all they knew is that Walker said one of his co-defendants, there were 12 of

[00:29:05] Speaker 00:
said that that person was going to lie about Walker.

[00:29:07] Speaker 00:
The government acted reasonably in continuing to investigate that by asking Jones about it, polygraphing Jones about it, asking Walker about it, as soon as he began to debrief with the government.

[00:29:19] Speaker 00:
This was not exculpatory or impeachment information that required immediate disclosure in March of 2017.

[00:29:26] Speaker 03:
You said you're not, putting aside prejudice, you said you're not defending

[00:29:32] Speaker 03:
the timeliness of the disclosure in December.

[00:29:37] Speaker 03:
Are you taking the position that the government had no duty to disclose in March?

[00:29:47] Speaker 03:
Yes, Your Honor.

[00:29:49] Speaker 03:
Why is that?

[00:29:50] Speaker 03:
Because the information was too inchoate?

[00:29:54] Speaker 03:
or because the trial date was too far off?

[00:29:57] Speaker 00:
All of those things, Your Honor.

[00:29:59] Speaker 00:
The government has a duty to disclose exculpatory and impeachment information.

[00:30:03] Speaker 00:
What it knew about in March was neither exculpatory nor impeaching.

[00:30:09] Speaker 03:
Suppose your friend is right that a disclosure in March could have led to fruitful lines of inquiry for the defense.

[00:30:22] Speaker 03:
I know you dispute that, but suppose he's right about that.

[00:30:25] Speaker 03:
Same answer, no duty to disclose in March?

[00:30:30] Speaker 00:
Yes, because it wasn't impeaching of a government witness with no trial date and no knowledge of public government witnesses.

[00:30:36] Speaker 03:
Suppose – okay, suppose you actually had the document in March.

[00:30:41] Speaker 00:
Same answer?

[00:30:45] Speaker 00:
Again, Your Honor, even if the government had the document in March, there's no duty of immediate disclosure.

[00:30:53] Speaker 00:
And the defense can't establish prejudice even if the government had the... Now, put aside prejudice.

[00:30:59] Speaker 03:
Just when is the government supposed to disclose the document?

[00:31:06] Speaker 03:
And one way of thinking about the case is...

[00:31:10] Speaker 03:
The legal rule is in time to allow effective preparation for trial.

[00:31:19] Speaker 03:
And as things turned out, the defense didn't have effective preparation for trial, unbeknownst to anyone, but they didn't because the witness died in the interim.

[00:31:36] Speaker 00:
Without knowing about the witness's death, the government had a duty under this court's precedent to disclose in time for the defense to make effective preparation and use, and a broader duty under the justice manual to disclose impeachment information to ensure that the trial may proceed efficiently.

[00:31:57] Speaker 01:
I guess, where did the government come up with the notion that the defense only needs a month to prepare for trial?

[00:32:05] Speaker 00:
Again, Your Honor, I'm relying solely on what the government attorney said at the December hearing.

[00:32:12] Speaker 01:
But looking at the manual, it doesn't say anything about a month.

[00:32:17] Speaker 00:
You're right, Your Honor.

[00:32:18] Speaker 00:
The government has to make an evaluation as to how much time defense counsel needs to use impeachment information.

[00:32:24] Speaker 00:
Typically, impeachment information could presumably be used the next day, because there's no investigation necessary.

[00:32:33] Speaker 00:
All it does is show that the witness is maybe saying something that's not true.

[00:32:38] Speaker 01:
We all know of defense attorneys representing clients who need more than a month.

[00:32:47] Speaker 00:
I don't know if that's true.

[00:32:48] Speaker 01:
Well, we do know it's true.

[00:32:57] Speaker 01:
I'm just not sure where this is coming from.

[00:33:00] Speaker 01:
Now, your response to me is, well, you're concerned that a defendant may be alerted that a government, a potential co-conspirator is a potential government witness and or cooperating with the government.

[00:33:28] Speaker 01:
And I guess I don't understand why any defense attorney wouldn't anticipate that in a drug conspiracy from one of the two leaders of the conspiracy.

[00:33:39] Speaker 01:
I mean, it's not as though you're disclosing a secret, what I'm trying to get at.

[00:33:44] Speaker 01:
It's assumed, basically, because that's the way the government operates in these conspiracy, drug conspiracy cases.

[00:33:50] Speaker 01:
It's sort of standard operating procedure.

[00:33:53] Speaker 01:
They indict a slew of people, and then they make deals.

[00:33:57] Speaker 00:
That's true, Your Honor, but the question isn't whether the defense attorney knows that.

[00:34:01] Speaker 00:
The question is whether these defendants are at risk from their co-defendants.

[00:34:05] Speaker 00:
It is atypical to have cooperation from the leader and to have cooperation downward.

[00:34:11] Speaker 00:
It is more typical to have cooperation from the underlings and have cooperation upward.

[00:34:15] Speaker 01:
Well, but we all know of instances where the leader cooperates as well.

[00:34:20] Speaker 00:
There are certainly instances of cooperation, Your Honor, but that doesn't mean that there aren't real witness security concerns for people who are identified as cooperators to their co-defendants who are in jail with them and can threaten their lives.

[00:34:31] Speaker 00:
These assaults and murders of witnesses and cooperators happen all the time.

[00:34:36] Speaker 01:
I know, but you know, the theory is when you're in jail, you're supposed to be in secure protection, not being maintained there so people can

[00:34:49] Speaker 00:
That's right, Your Honor, and if a defendant is transferred to the secure protection wing, that's an indication that he's a cooperator and that puts his family, who's on the outside, at risk.

[00:35:00] Speaker 01:
It raises all sorts of security concerns, which is why... So, as a practical matter, under this procedure, district courts ought to be aware that once they set a trial date, they'll probably have to continue it for two months in order to allow the defense

[00:35:17] Speaker 01:
to have an adequate time to prepare for trial?

[00:35:20] Speaker 00:
No, Your Honor.

[00:35:20] Speaker 00:
These prosecutors made a misjudgment as to the amount of time that the defense needed to use effectively and investigate the impeachment information produced in this case.

[00:35:31] Speaker 01:
No, I'm assuming good days here.

[00:35:32] Speaker 01:
They thought a month was enough, but they were wrong.

[00:35:35] Speaker 00:
Yes, Your Honor, they made a misjudgment.

[00:35:37] Speaker 00:
But that doesn't change the fact that witness security is a very real concern that prosecutors should

[00:35:46] Speaker 00:
and must take into account when disclosing impeachment information that would identify the cooperators in that case.

[00:35:58] Speaker 00:
Regardless of the speculation that defense counsel engages in on appeal as to this series of events that somehow would have led them to discovering Bethea and Bethea identifying to a defense investigator presumably that Jones wrote the letter, none of that would have been admissible at trial.

[00:36:20] Speaker 00:
Once Bethea died, anyone to whom he said Jones was the author would be testifying as to hearsay.

[00:36:26] Speaker 00:
There is no hearsay exception that would allow that in and would allow in Bethea's authentication of the letter.

[00:36:33] Speaker 00:
The residual exception, which relies on the reliability of the hearsay, doesn't apply here when the handwriting analysis said that it clearly was not Jones's handwriting.

[00:36:47] Speaker 00:
And Jones himself repeatedly denied writing this letter.

[00:36:52] Speaker 00:
And so regardless of whatever chain of events defense counsel speculates in, which I think this court has refused to do in this context to find prejudice, none of this would have led to admissible testimony about the letter's authorship at trial, which is why defense counsel cannot establish prejudice here.

[00:37:16] Speaker 03:
One more question about March.

[00:37:18] Speaker 03:
Suppose, hypothetically, government has the latter, and suppose that Jazz was, the government knew that Jazz was elderly and very frail.

[00:37:35] Speaker 03:
His death in the actual case is unforeseeable, but imagine that it's very foreseeable.

[00:37:42] Speaker 03:
obligation to disclose in March under those facts or not?

[00:37:55] Speaker 00:
I'm not trying to be difficult, Your Honor.

[00:37:57] Speaker 00:
It's really hard for me to answer these questions on my feet.

[00:38:00] Speaker 00:
It's a hard question.

[00:38:00] Speaker 00:
I don't think that that factors into the whether the defense can effectively use the material at trial.

[00:38:08] Speaker 00:
If they

[00:38:10] Speaker 00:
If they have the letter, presumably Walker has said that Bethea identified Jones as the author.

[00:38:19] Speaker 00:
So that presumably means that the government knows that it wants to find Bethea.

[00:38:25] Speaker 00:
It tried to find Bethea.

[00:38:27] Speaker 00:
The government sought Bethea in June itself.

[00:38:31] Speaker 00:
and was unable to locate him.

[00:38:34] Speaker 00:
And so the government in this case made these reasonable efforts to track down this information to see for itself.

[00:38:42] Speaker 00:
And so I think in your honor's scenario, the government would have found Bethea and would have been able to interview him itself and evaluate his credibility as to the letter's authorship.

[00:38:52] Speaker 00:
I don't know.

[00:38:53] Speaker 03:
You're sort of, you're fighting the hypo a little bit by asserting that

[00:39:01] Speaker 03:
this really wouldn't have been a fruitful line of inquiry.

[00:39:06] Speaker 03:
I'm trying to test the question what happens in a circumstance where the defense has very real concerns about being able to develop lines of inquiry that are potentially important.

[00:39:28] Speaker 03:
And you have very real concerns about witness protection and such.

[00:39:33] Speaker 00:
So I think there are certainly avenues to address witness protection in that scenario, such as an attorney's eyes only disclosure that prevents the defense attorneys from sharing with their clients and thus protects the cooperators from any sort of retribution.

[00:39:53] Speaker 00:
There are avenues that the government can take to disclose sooner exculpatory Brady that may raise witness security concerns.

[00:40:03] Speaker 00:
And so that may be a more appropriate approach to take in some cases.

[00:40:09] Speaker 00:
As to the prosecutors in this case, they identified Facebook posts publicly that gave them real concern about witness security issues in this case.

[00:40:18] Speaker 00:
The letter they believed was inculpatory, or excuse me, impeachment brady.

[00:40:23] Speaker 00:
They apparently failed to see the additional

[00:40:27] Speaker 00:
investigation, the defense would have to – so they made a misjudgment and disclosed it later than they should have.

[00:40:34] Speaker 00:
But the defense can establish no preference.

[00:40:36] Speaker 03:
The concerns about witness security in this case are in the record?

[00:40:40] Speaker 03:
I'm sorry.

[00:40:40] Speaker 00:
That's what I'm entirely relying on, yes, Your Honor.

[00:40:42] Speaker 00:
Okay.

[00:40:43] Speaker 00:
The December 2017 transcript that one of the prosecutors mentions, Facebook posts by defendants with case-related information.

[00:40:56] Speaker 00:
As to the Joinder and Severance issue, I know I'm well over my time.

[00:41:01] Speaker 00:
I just want to talk about the government's response to the jurors' question.

[00:41:08] Speaker 00:
The defense is the one who suggested that the jurors' confusion be addressed by government questioning.

[00:41:17] Speaker 00:
That is, at JA 877, defense mason's counsel proposed either that the court cleared up immediately by note

[00:41:26] Speaker 00:
or by having the government ask that just directly.

[00:41:30] Speaker 00:
It is true that those were not the first two questions out of government counsel's mouth when questioning of Jones resumed.

[00:41:37] Speaker 00:
But the way the government did it was actually more protective of Mason's rights.

[00:41:42] Speaker 00:
Mason had not yet been discussed, except for a brief mention two days earlier in the case at all.

[00:41:48] Speaker 00:
Jones had not identified him sitting at counsel table.

[00:41:51] Speaker 00:
There had been no important identification.

[00:41:53] Speaker 00:
Jones had not explained how he knew Mason

[00:41:56] Speaker 00:
or what Mason's role in the conspiracy was.

[00:41:59] Speaker 00:
And so to have the first two questions out be, did you have drugs sent to Mason's house, did you know his address, would not have made sense to the jury.

[00:42:08] Speaker 00:
What the prosecutor did was very quickly, within five pages of transcripts, set all of that up, discussed Mason's role in the conspiracy, had Jones identify him, had Jones explain how he knew Mason,

[00:42:21] Speaker 00:
and then established that Jones had never used Mason's house for drug deliveries and didn't even know where Mason's lived.

[00:42:29] Speaker 00:
Under those circumstances, it wasn't the government squeezing it in.

[00:42:34] Speaker 00:
It was, in fact, the government setting up the questions in a way that would make sense to the jury and ameliorate any confusion.

[00:42:43] Speaker 00:
And the – this is an abuse of discretion standard.

[00:42:47] Speaker 00:
It is not de novo for the Rule 14 severance.

[00:42:50] Speaker 00:
The district court did not abuse her broad discretion, having sat in this trial in person, seen the questions, seen the effect on the jury, understood that there was no spillover prejudice necessitating a severance.

[00:43:04] Speaker 00:
If there are no further questions, we would ask that the judge and PFO.

[00:43:12] Speaker 04:
Mr. Smith, before you begin, I wonder if you could – and we may be going over old ground here, but just to help me – I want to hear from you how you imagine you would be able to have used this letter at trial.

[00:43:30] Speaker 04:
had you learned of it in March or sometime before Jazz died?

[00:43:35] Speaker 04:
Give me your best scenario for how you would use it at trial.

[00:43:39] Speaker 02:
Well, I wasn't trial counsel.

[00:43:42] Speaker 02:
But yes, I think what you would have been able to do is to actually confront Jones.

[00:43:50] Speaker 02:
If it had been produced earlier, you would have been able to confront Jones by asking him, isn't it true that you wrote this?

[00:43:56] Speaker 02:
And if he said no, then to have

[00:44:00] Speaker 02:
impeachment evidence that you could then bring in to refute that.

[00:44:04] Speaker 04:
And tell me the nature of that impeachment evidence.

[00:44:07] Speaker 02:
Well, you could have brought your defense investigator in to say, I spoke to Jazz, and Jazz told me this.

[00:44:12] Speaker 02:
And that comes in under the residual hearsay exception.

[00:44:15] Speaker 02:
You could have brought in the uncle of Jazz, who they could have found, because they would have been able to speak to Jazz, who could have said, yes, Jazz told me.

[00:44:24] Speaker 02:
They could have subpoenaed the call records nine months later.

[00:44:30] Speaker 02:
of Jazz speaking to people that are apparently recorded.

[00:44:34] Speaker 02:
You could have had, where he may have even talked about how he had gotten this letter, a number of different ways that you could have gotten cell information instead of looking for cellmates.

[00:44:49] Speaker 02:
Nine months later, you could have verified that he was in a cell, Jones was in a cell with Jazz, or near a cell with Jazz.

[00:44:57] Speaker 02:
Maybe you could even find other cellmates that could say that they heard this conversation taking place.

[00:45:02] Speaker 02:
There are any number of different ways that you could have documented and verified this.

[00:45:07] Speaker 02:
And look, we're not the ones to put the government in this situation with them holding this.

[00:45:13] Speaker 02:
Let me just go back and address a couple of things.

[00:45:15] Speaker 02:
He says he's a, Mr. Lenders is a fine superb lawyer.

[00:45:22] Speaker 02:
They've done a great job with this case, but he says they're not defending the timeliness of this, but then he starts talking about the witness security concerns.

[00:45:30] Speaker 02:
It's just not persuasive.

[00:45:32] Speaker 02:
This is not a valid concern when my client is on bail because he is not a security risk and when this is a guy turning down on underlings.

[00:45:41] Speaker 02:
At a minimum, they could have produced this pursuant to a protective order and given it just to the lawyers and had restrictions.

[00:45:47] Speaker 02:
The security concerns easily could have been covered, and eventually they got to disclose it anyway.

[00:45:52] Speaker 02:
They did disclose it, and there were no security concerns.

[00:45:54] Speaker 02:
Jones testified just fine, and there was no suggestion whatsoever that he had ever been threatened in any way.

[00:46:01] Speaker 02:
So it's totally overblown in a red herring.

[00:46:04] Speaker 02:
More importantly, you asked him, should he have made the disclosures in March?

[00:46:08] Speaker 02:
And he says, well, no.

[00:46:09] Speaker 02:
But it was never addressed below.

[00:46:12] Speaker 02:
You should remand this case, especially since there are many factors that remain.

[00:46:16] Speaker 02:
You shouldn't say on this that this record is so clear that they didn't have to disclose in May.

[00:46:21] Speaker 02:
They talked about the other cooperator.

[00:46:23] Speaker 02:
The review is de novo, right?

[00:46:25] Speaker 02:
It is.

[00:46:27] Speaker 03:
So if you're right on that point, we will just assess it.

[00:46:32] Speaker 02:
You can't.

[00:46:32] Speaker 02:
But where the record is not fully developed below because the court didn't address the March issue, there are other questions that remain.

[00:46:40] Speaker 02:
They say they got this information from another cooperator in another case, an unrelated case.

[00:46:46] Speaker 02:
Who is that cooperator?

[00:46:48] Speaker 02:
We still don't even know that cooperator.

[00:46:50] Speaker 02:
That's another thing you could have brought to the trial.

[00:46:52] Speaker 02:
Bring that cooperator in.

[00:46:53] Speaker 02:
They never disclosed the name of the cooperator from the other case.

[00:46:56] Speaker 02:
Even today, they haven't disclosed it.

[00:46:58] Speaker 02:
To this day.

[00:46:59] Speaker 02:
In addition, he says to the government, well, we hadn't confirmed that this letter existed.

[00:47:06] Speaker 02:
Well, the threshold has never been that Brady isn't Brady until the government obtains physical evidence or confirms its existence.

[00:47:15] Speaker 02:
or say it's someone being debriefed, tells the government that a gun used in a robbery is silver instead of black.

[00:47:21] Speaker 02:
Must the government actually obtain a silver gun before they disclose the statement?

[00:47:25] Speaker 02:
Of course not.

[00:47:26] Speaker 02:
Must they confirm the gun was silver before they reveal that statement?

[00:47:30] Speaker 02:
Of course not.

[00:47:31] Speaker 02:
Any such rule would make a mockery of Brady and undermine justice, leading to wrongful verdicts.

[00:47:37] Speaker 02:
Let me just finally say, if the information was tangible enough for the government to confront Jones in debriefing,

[00:47:44] Speaker 02:
It was Brady then.

[00:47:46] Speaker 02:
If it was tangible enough for them to line up a polygrapher and to craft polygraph questions on this for Jones, it was Brady then.

[00:47:54] Speaker 02:
The rule here should be basic and fundamental.

[00:47:56] Speaker 02:
If they are affirmatively using exculpatory and impeachment information for their own purposes, they can't simultaneously withhold that same information from the defense.

[00:48:05] Speaker 02:
The government said at the end, well, we did try to find Bethea so we could interview him ourself.

[00:48:12] Speaker 02:
Well, that's exactly the problem.

[00:48:14] Speaker 02:
They wanted to stay a step ahead of the defense.

[00:48:17] Speaker 02:
That's what was going on here.

[00:48:19] Speaker 02:
They withheld Brady so they could stay a step ahead of the defense.

[00:48:23] Speaker 02:
And that's exactly what should trouble this court.

[00:48:25] Speaker 02:
And that's exactly why, on that issue, it should be reversed.

[00:48:29] Speaker 02:
On the severance, I just want to quickly say, he says, well, it wouldn't have made sense to the jury to deal with it immediately after the judge's instructions because the jury wouldn't have understood.

[00:48:41] Speaker 02:
The jury wouldn't have understood.

[00:48:43] Speaker 02:
right after the judge is explaining, here's the question I just got asked, and then gave this modest, almost nothing curative instruction, the issue is right before the jury.

[00:49:01] Speaker 02:
That's the time to deal with it.

[00:49:03] Speaker 02:
If you want to cure the taint,

[00:49:06] Speaker 02:
You do what the defense lawyer specifically asked.

[00:49:09] Speaker 02:
I want this addressed, yes, by the government or the court, he said.

[00:49:13] Speaker 02:
But most important, he said, it needs to be addressed immediately.

[00:49:17] Speaker 02:
It wasn't addressed immediately.

[00:49:19] Speaker 02:
And that's why, in part, this court needs to sever.

[00:49:23] Speaker 02:
You've never seen a case like this where a juror, especially the foreperson, specifically says, I think evidence against defendant A

[00:49:34] Speaker 02:
is evidence of guilt as to defendant be clearly confused, clearly coming from other witnesses besides Jones, and it was never clarified.

[00:49:45] Speaker 02:
Again, remember the standard.

[00:49:47] Speaker 02:
If there are doubts, then you have to rule for the defendant on this inference issue.

[00:49:52] Speaker 02:
Wouldn't be much to retry this case.

[00:49:53] Speaker 02:
We ask that you remain.

[00:49:54] Speaker 02:
Thank you.

[00:49:55] Speaker 01:
Thank you.

[00:49:55] Speaker 01:
We'll take the case under advisement.