[00:00:00] Speaker 00: Case number 19-3074, United States of America versus Patricia Driscoll at balance. [00:00:07] Speaker 00: Mr. Storles for the appellant, Mr. Smith for the appellee. [00:00:12] Speaker 04: Good morning, Mr. Stolarz. [00:00:14] Speaker 04: We'll hear from you. [00:00:15] Speaker 02: Thank you, Your Honor. [00:00:16] Speaker 02: Good morning. [00:00:17] Speaker 02: May it please the court, Ryan Stolarz for appellant Patricia Driscoll. [00:00:21] Speaker 02: First off, I want to thank the court personnel for the very helpful manner in which we're doing this virtual court. [00:00:25] Speaker 02: Thank you very much to the court. [00:00:27] Speaker 02: Your Honor, in 1935, the Supreme Court stated [00:00:30] Speaker 02: that a prosecutor may strike hard blows, but he's not at liberty to strike foul ones. [00:00:34] Speaker 02: That platitude gets thrown around a lot. [00:00:37] Speaker 02: This case is the embodiment of it. [00:00:39] Speaker 02: This whole case was broken from the very beginning due to misconduct by the investigative agent that was compounded by misconduct by the prosecutor who sought to cover for that agent. [00:00:49] Speaker 02: And the only way this kind of misconduct doesn't happen again is accountability. [00:00:54] Speaker 02: As a criminal defense lawyer, I hear things like accountability and deterrence all the time. [00:00:58] Speaker 02: And yet here we are, [00:00:59] Speaker 02: the government doing this conduct and there's no accountability. [00:01:04] Speaker 02: The agent in this case took the constitution into his own hands. [00:01:08] Speaker 02: He sees an exciting new case on a sports website. [00:01:12] Speaker 02: He's a brand new agent. [00:01:14] Speaker 02: The district court called it the Moby Dick, the white whale case. [00:01:18] Speaker 02: He hears she is testifying at her child custody hearing where the child will spend holidays and school. [00:01:24] Speaker 02: He admits he knows less than 5% of the case and wants his case badly. [00:01:29] Speaker 02: The prosecutor agrees that the agent, Agent Valdini, should go to the child custody hearing and hear Ms. [00:01:34] Speaker 02: Driscoll testify. [00:01:35] Speaker 02: It was a team decision. [00:01:37] Speaker 02: The prosecutor tells him, though, don't badge in. [00:01:41] Speaker 02: Don't get the badge. [00:01:43] Speaker 02: Still unsure what that means. [00:01:45] Speaker 02: But there's no formal covert operation plan approved. [00:01:48] Speaker 02: The prosecutor admitted it. [00:01:51] Speaker 02: Yes, sir. [00:01:53] Speaker 01: I assume I'm sold on everything you've said. [00:01:56] Speaker 01: I assume I'm sold that there was prosecutorial misconduct here. [00:02:01] Speaker 01: Can you explain why there was Brady prejudice? [00:02:07] Speaker 01: Why should we reverse the case when we ultimately got all the information in time to use it in trial? [00:02:14] Speaker 01: And in particular, I would ask, do you know of any one case from the DC Circuit where [00:02:22] Speaker 01: The DC Circuit has reversed a district court guilty verdict on the grounds of Brady when the Brady material was in the hands of the defense, at least by the time the defense began its case in chief. [00:02:37] Speaker 02: Thank you, Your Honor. [00:02:38] Speaker 02: And thank you for that question. [00:02:40] Speaker 02: I believe the court tried valiantly to remedy this trial for the Brady evidence. [00:02:45] Speaker 02: And there's two reasons why it was insufficient. [00:02:47] Speaker 02: One, a Brady remedy cannot remedy a lying government witness [00:02:51] Speaker 02: Agent Valdini was very specific to where and how this case came out. [00:02:56] Speaker 02: We received the Brady. [00:02:57] Speaker 02: The judge called a mini trial during the trial. [00:03:00] Speaker 02: And during that mini trial, the agent testified outside the presence of the jury and didn't do well. [00:03:05] Speaker 02: Realized he had been caught. [00:03:06] Speaker 02: And by the time he testified in front of the jury, he cleaned it all up. [00:03:10] Speaker 02: There's nothing as a defense lawyer that I could do to remedy that. [00:03:13] Speaker 02: He said, for example, in front of the jury, he got consent from a supervisor to conduct surveillance. [00:03:17] Speaker 02: Well, that made it look more official. [00:03:19] Speaker 02: That had never been given to me before. [00:03:21] Speaker 02: I was blindsided the entire time. [00:03:23] Speaker 02: I did the best I could with it, but that's not the standard. [00:03:26] Speaker 01: And he lied about it. [00:03:27] Speaker 01: All these arguments you're making, you were able to make to the jury in order to hurt his credibility, correct? [00:03:33] Speaker 02: That is absolutely correct. [00:03:33] Speaker 02: Yes, Your Honor, I did. [00:03:34] Speaker 01: So is there an answer to my kind of yes or no question on, do you have a DC Circuit case that reverses a district court conviction, when the Brady evidence in question did make its way into the hands of the defense, [00:03:49] Speaker 01: at least before the defense began at the case. [00:03:53] Speaker 02: No, Your Honor, I don't. [00:03:54] Speaker 02: And the judge noted that, which said that the prosecutor was lucky that I got it when I got it. [00:03:58] Speaker 02: If I got in a week later or two weeks later, I'd be in a different posture. [00:04:01] Speaker 02: And I fully acknowledge that. [00:04:03] Speaker 02: But I believe, Your Honor, this is bigger than Brady. [00:04:05] Speaker 02: I believe this case was fundamentally broken from the very beginning. [00:04:08] Speaker 02: So even if you take a step behind Brady and look to the Tweedle case, which is the best I can find in the Fifth Circuit, I realize there's limitations in that case. [00:04:15] Speaker 02: It's a Fourth Amendment case because you're dealing with a [00:04:17] Speaker 02: agent who lied in that case about a civil audit and asking the person asked, is this a criminal audit or is there an agent involved? [00:04:23] Speaker 02: No. [00:04:24] Speaker 02: And they produced the documents. [00:04:25] Speaker 02: In this case, judge, we have the fifth amendment being violated. [00:04:28] Speaker 02: So I think this goes beyond Brady. [00:04:30] Speaker 02: And that's the point that I really want to stress, which is if the agent sits in a child custody hearing and mistress will ghost him and said, are you worked for the government? [00:04:40] Speaker 02: And he says, no, he is her consent to go up there and testify is, is gone. [00:04:46] Speaker 02: So the whole case gets cracked from the very beginning. [00:04:48] Speaker 02: Yes, I understand about the Brady issue, and I fully understand your honest point, and I frankly agree with what Judge Leon said. [00:04:54] Speaker 02: I got it. [00:04:55] Speaker 02: I don't think I was able to use it effectively, but I got it. [00:04:58] Speaker 02: But this case was cracked from the very beginning. [00:05:00] Speaker 02: And Agent Belladini admits this. [00:05:02] Speaker 02: He said, I did not want it to be overt for Ms. [00:05:05] Speaker 02: Driscoll to know we're investigating her yet. [00:05:08] Speaker 02: The only context I know of where you can lie is when you're doing custodial interrogations. [00:05:13] Speaker 02: Back to my old public defender days. [00:05:15] Speaker 02: You just have to litigate that. [00:05:16] Speaker 02: There's no context like that here. [00:05:19] Speaker 02: The court, the court asked who he was, Agent Valdini lies. [00:05:22] Speaker 02: Ms. [00:05:23] Speaker 02: Driscoll asked who he was, Agent Valdini lies. [00:05:25] Speaker 02: His lawyer asked who he was, Agent Valdini lies. [00:05:27] Speaker 02: He holds the Constitution and says, you know what, I'm going to take it in my hands such that you can't consult with your lawyer to see if you want to take a timeout, see if you want to testify or not, such that the judge himself cannot admonish the witness to seek counsel. [00:05:39] Speaker 02: I mean, that what I think is, [00:05:40] Speaker 02: even somewhat even a bigger question is what he usurped, not just the role of a defense lawyer who could tell a person, he advised him of the constitutional rights. [00:05:49] Speaker 04: Is there any authority though, that even if he had disclosed that he was a government agent, that, um, [00:06:06] Speaker 04: the judge at that proceeding had any obligation to warn Ms. [00:06:14] Speaker 04: Driscoll before she testified? [00:06:16] Speaker 02: No, I think what I've seen is common practice. [00:06:20] Speaker 02: In fact, Judge Leon did that in the district court when one of the witnesses had exposure. [00:06:25] Speaker 04: But I guess my point is that [00:06:30] Speaker 04: Ms. [00:06:31] Speaker 04: Driscoll was testifying. [00:06:33] Speaker 04: It's an open proceeding. [00:06:36] Speaker 04: The government or the public or anybody could get a transcript of it. [00:06:43] Speaker 04: So there's no expectation that she has that whatever she says can't be used against her. [00:06:51] Speaker 04: Why would we have any expectation of that? [00:06:54] Speaker 02: Well, you're absolutely right. [00:06:55] Speaker 02: And there's irony to that. [00:06:57] Speaker 02: If the government never went, [00:06:58] Speaker 02: they could have easily gotten a transcript and they could have used whatever she said for their investigative purposes. [00:07:03] Speaker 02: It's the moment that agent Valdini inserts himself in the process and lies to her and says, I am not a government agent. [00:07:10] Speaker 02: It was a point-blank question. [00:07:12] Speaker 02: First day, are you work for the court? [00:07:13] Speaker 02: No. [00:07:13] Speaker 02: Second day he came back, do you work for the government? [00:07:15] Speaker 02: He says, no. [00:07:16] Speaker 02: Therefore she feels comfortable to testify. [00:07:18] Speaker 02: So because he inserted himself, Judge. [00:07:20] Speaker 04: But if he had never showed up, she would have been just as comfortable and would have said this exact same thing and the government could have [00:07:28] Speaker 04: obtain the transcript and you would have been where you are. [00:07:32] Speaker 04: I mean, it seems to me that if there's any real misconduct here, it's when, you know, he goes to lunch and, you know, does the other stuff. [00:07:44] Speaker 04: But I'm just not understanding what constitutional right or egregious misconduct takes place [00:07:56] Speaker 04: by him not identifying himself in the courtroom. [00:07:59] Speaker 02: Well, the best that I could do judge is, is make the analogy to Twiel, which is I acknowledge the limitations of the fourth amendment case. [00:08:05] Speaker 02: In that case, they say, is there a civil, is there a criminal audit? [00:08:07] Speaker 02: No. [00:08:08] Speaker 02: So they produce documents. [00:08:09] Speaker 02: In this case, she says, are you a government agent? [00:08:11] Speaker 02: If he says yes, then she will consult with her lawyer, but she will, the judge made monitor, Hey, you might want to get your own criminal defense lawyer. [00:08:19] Speaker 02: And then she may not testify, but it's judge agent Belladini took the constitution in his hands. [00:08:23] Speaker 02: I can't be, [00:08:24] Speaker 02: permissible. [00:08:24] Speaker 02: I understand you're allowed to lie to a witness in interrogation, but not in this context, when you are purposely hiding who you are to make her go and testify. [00:08:32] Speaker 02: He's going to watch her testify. [00:08:34] Speaker 02: So in doing that, he is taking the conscience in his hands. [00:08:37] Speaker 03: Was any of the civil testimony used against her in the criminal trial? [00:08:43] Speaker 03: Yes, Judge. [00:08:44] Speaker 02: In fact, the agent admitted he issued subpoenas as a result of what he heard. [00:08:48] Speaker 02: He knew who to talk to. [00:08:49] Speaker 02: He knew which witnesses to call. [00:08:51] Speaker 02: And he knew what her defense was. [00:08:52] Speaker 02: the sitting duck for years. [00:08:54] Speaker 02: The same defense she used then, I used later in the trial, and it was all out there because he knew about it. [00:08:59] Speaker 02: So yes, and the government admitted that they made derivative use of the testimony. [00:09:03] Speaker 02: That's very clear, and I have the assent for it too. [00:09:07] Speaker 02: It's a JA 373. [00:09:08] Speaker 02: They admitted they made derivative use of the information. [00:09:11] Speaker 02: So this comes down almost like a fruit of poisonous tree in some ways. [00:09:15] Speaker 02: If he sits there, [00:09:16] Speaker 02: and lies, and then all these things happen. [00:09:18] Speaker 02: He writes down, oh, I got to subpoena this bank. [00:09:20] Speaker 02: Oh, I got to subpoena this person. [00:09:21] Speaker 02: Oh, I got to take a witness. [00:09:23] Speaker 02: He's filing the Constitution to get his roadmap in a high profile case. [00:09:27] Speaker 02: He's a new agent. [00:09:28] Speaker 02: He's a lawyer, by the way, a new agent, desperate for a white whale case. [00:09:32] Speaker 02: Prosecutors do not supervise him as to the lunch, which I know run a little short on time. [00:09:36] Speaker 02: That lunch is preposterous. [00:09:38] Speaker 02: It's one of the worst things I've ever seen. [00:09:39] Speaker 02: But yet the prosecutor doesn't inquire about a fourth day memo and then makes the, [00:09:46] Speaker 02: The statement they made to the district court, they lied to the district court and they said that he did not write a memo because nothing happened on that day. [00:09:53] Speaker 02: J.A. [00:09:53] Speaker 02: 254. [00:09:54] Speaker 02: If I wrote that in a pleading or Mr. Scott wrote that in a pleading, we'd be investigated for obstruction of justice. [00:09:59] Speaker 02: But yet they can say nothing happened. [00:10:00] Speaker 02: And that's totally not true. [00:10:01] Speaker 02: District court denied that. [00:10:03] Speaker 04: Given that given the interest of time, do you want to argue about any of your other issues, particularly the jury instruction issue? [00:10:12] Speaker 02: I can address that during my two-minute rebuttal. [00:10:15] Speaker 02: I mostly rest on the papers on that. [00:10:17] Speaker 02: The courts flipped the order of the Red Book, gave an anti-deadlock instruction, then gave two others that missed the critical point of holding to your honest convictions rather than just saying keep an open mind. [00:10:29] Speaker 02: Sorry? [00:10:30] Speaker 03: I'll just ask you one or two questions about that. [00:10:33] Speaker 03: Yes, Your Honor. [00:10:34] Speaker 03: I take it it's not your position that [00:10:41] Speaker 03: the standard, there are two standard instructions, as far as I can tell, that in some sense are anti-deadlock. [00:10:51] Speaker 03: They are under 2.601 of the Red Book. [00:10:56] Speaker 03: And Roman III is the one that's called the Thomas Instruction. [00:11:00] Speaker 03: There's also Roman I, which is called the Initial Instruction. [00:11:04] Speaker 03: I take it it's not your position that [00:11:09] Speaker 03: it would be reversible error to give the initial instruction because it's materially different from what's called the Thomas instruction. [00:11:20] Speaker 03: Correct, that is not my position. [00:11:22] Speaker 03: And is it your point that in the hypothetical case where the district court starts with the initial instruction at the beginning, on the first deadlock notice early in the trial, he gives the initial instruction [00:11:39] Speaker 03: then the jury deliberates more, second deadlock note, then he gives the Thomas instruction. [00:11:46] Speaker 03: Is that reversible error for giving the same kind of instruction twice? [00:11:52] Speaker 02: Well, and that's the big debate. [00:11:54] Speaker 02: The government said they could not, the judge could not give an anti-deadlock instruction twice. [00:11:58] Speaker 03: What's your position on that? [00:12:01] Speaker 02: I believe you cannot give more than one anti-deadlock instruction. [00:12:04] Speaker 02: And frankly, that's part of the role of this court. [00:12:07] Speaker 02: because there's a split in the circuits, there's a hodgepodge of wordsmithing during instruction cases that takes up a lot of time to parse each one. [00:12:13] Speaker 02: There's no clear ruling from this court on whether that can or can't happen. [00:12:17] Speaker 02: And so I do think that's the role of this court to give us a firm ruling that you cannot do a repetition of an anti-deadlock instruction. [00:12:26] Speaker 03: Suppose we disagree. [00:12:30] Speaker 03: And as to my hypothetical, what is it about flipping the order? [00:12:35] Speaker 03: This case is odd because the district court starts with the full blown Thomas instruction the first time and then uses the Thomas light initial instruction on the third instruction. [00:12:48] Speaker 03: Why is it worse to flip the order than if he had just done exactly what the red book seems to contemplate, which is give the initial instruction first and then the full Thomas instruction second? [00:13:02] Speaker 03: Why is that worse? [00:13:03] Speaker 02: Yes, Your Honor, because the instructions he gave afterwards were functioned as additional Thomas instructions because he omitted critical language. [00:13:11] Speaker 02: Thomas instructions said the juror must hold their honest convictions. [00:13:14] Speaker 02: The instructions he gave afterwards were just [00:13:17] Speaker 02: an open mind. [00:13:18] Speaker 02: He said keep an open mind probably five or six times but never said hold your honest conviction. [00:13:22] Speaker 02: So he starts with hold your honest convictions but does not repeat it which makes it and that that goes back to Thomas itself which says we have to look to the functional effect on the jury. [00:13:31] Speaker 02: We had a holdout juror clearly voting for for acquittal we know now and the the multiple [00:13:36] Speaker 02: Instructions afterwards were guided to that juror and none of them said hold your honest convictions. [00:13:41] Speaker 02: It just said keep an open mind So that is why there is brought with danger, right? [00:13:45] Speaker 03: But that is permissible. [00:13:47] Speaker 02: I Mean that that is how the initial instruction is formulated Correct, but that's why you go if you would go first to that and then hit a Thomas then you hit the keep your honest convictions and if he if he were to say keep your honest convictions every time that loan holdout juror for acquittal may have done exactly that and [00:14:04] Speaker 02: But he didn't, I believe he was coerced in pressure. [00:14:06] Speaker 02: Thank you. [00:14:07] Speaker 02: Thank you. [00:14:08] Speaker 01: So can I get clarification? [00:14:09] Speaker 01: You're saying, you're now saying it is all right to give the initial instruction on one day and then the Thomas instruction on another day. [00:14:17] Speaker 02: Right, no, I didn't, you know, I'm not, I don't believe I claim that as error that you, he did flip it. [00:14:23] Speaker 02: And I believe that the functional effect of the totality of the jury instructions was wrong. [00:14:27] Speaker 02: But the red book is, the red book is, I believe it's supposed to go first then second, the pre Thomas to the Thomas. [00:14:33] Speaker 01: Right, and so if you go, [00:14:35] Speaker 01: second and then first, instead of first and second, what's the difference? [00:14:39] Speaker 01: Why does that matter? [00:14:41] Speaker 02: Well, Your Honor, as I just explained, when you go from the big heavy one to the light one, if you don't have the themes from the heavy one, which is hold your honest convictions, then the jurors are confused. [00:14:50] Speaker 02: And the totality is, well, maybe I don't have to hold my convictions anymore. [00:14:53] Speaker 02: Maybe I just have to keep an open mind. [00:14:54] Speaker 02: So that was directed towards that one juror. [00:14:56] Speaker 02: It was coercive. [00:14:56] Speaker 02: The totality was coercive. [00:14:58] Speaker 02: And I think to go back to my earlier point, this court needs to just lay it down [00:15:01] Speaker 02: so that litigants and judges can know, because the government said you can't do a second anti-deadlock. [00:15:05] Speaker 02: The judge said I could. [00:15:06] Speaker 02: So therefore, there needs to be a set thing that we can all have a level playing field to know what to do. [00:15:12] Speaker 01: There's a case, United States v. Black, from this court in 1988. [00:15:15] Speaker 01: I'm going to read the additional instruction that the court gave there. [00:15:21] Speaker 01: And this is not a trick question. [00:15:23] Speaker 01: I'll tell you right now. [00:15:25] Speaker 01: The DC circuit said that this additional instruction was not an additional Thomas charge. [00:15:32] Speaker 01: It's not the same as saying Thomas twice or saying Thomas light and leaving out something that's got to be in Thomas. [00:15:39] Speaker 01: So here's the additional instruction. [00:15:42] Speaker 01: I'll now instruct you in response to your question that each juror is entitled to his or her opinions. [00:15:47] Speaker 01: Each should, however, exchange views with his or her fellow jurors. [00:15:51] Speaker 01: That is the very purpose of jury deliberations, to discuss and consider the evidence, to listen to the arguments of the fellow jurors, to present your individual views, [00:16:00] Speaker 01: to consult with one another and to reach an agreement based solely and wholly on the evidence if you can do so without violence to your own individual judgment. [00:16:11] Speaker 01: That seems very similar to what the district court judge here said in his final instruction to the jury. [00:16:21] Speaker 02: Yes, Your Honor, thank you. [00:16:22] Speaker 02: And I read through black and the only the response I have to that is [00:16:25] Speaker 02: that the end part you just mentioned, but without doing violence to your own convictions, I believe that the later instructions by Judge Leon stressed open mind rather than holding your honest conviction. [00:16:34] Speaker 02: So I agree, it's a bit of wordsmithing. [00:16:36] Speaker 02: And that goes back to my point that it's hard to find where to put everything because there's so many different types of cases. [00:16:41] Speaker 02: The wordsmithing to individual judges and litigants is very challenging. [00:16:44] Speaker 02: But I believe that he did not stress holding your own convictions as well as Black did in that case. [00:16:50] Speaker 01: And he did say open mind, you know, over and over and over again. [00:16:54] Speaker 01: I agree with you on that. [00:16:56] Speaker 01: It just, to me, seems like such a almost a truism of a thing for a judge to tell the jury. [00:17:02] Speaker 01: I mean, their job is to keep an open mind. [00:17:05] Speaker 01: He might as well have just said, do your job four times. [00:17:09] Speaker 01: It's, you know, [00:17:10] Speaker 01: But now, it seems almost like it's a banal suggestion. [00:17:15] Speaker 01: It just doesn't strike me as anything that would coerce anyone. [00:17:22] Speaker 01: So tell me why I'm wrong. [00:17:23] Speaker 02: No, and I'm not saying you aren't. [00:17:25] Speaker 02: I mean, it's a very valid point, Judge. [00:17:27] Speaker 02: The point, though, is in this particular factual instance, which is why all these cases are so difficult to reconcile, you have a deadlocked juror who told the judge that he's deadlocked, he's made up his mind. [00:17:38] Speaker 02: The fact that he doesn't tell that one holdout juror, we know we're dealing with one holdout juror, we now know for acquittal, telling that one holdout juror to keep an open mind and not also telling that holdout juror hold your honest convictions. [00:17:48] Speaker 02: That's the problem because we know it's one juror. [00:17:51] Speaker 02: We know it's a holdout. [00:17:51] Speaker 02: We don't know at the time which one it was, which way he was going or she was going. [00:17:55] Speaker 02: So that's why it's wrong because it's targeting a juror with coercive language, keep that up mind, but not also telling that juror, hey, if you still feel that way, you should keep feeling that way. [00:18:04] Speaker 02: That's the only splice that I have for you. [00:18:09] Speaker 04: Thank you all very much. [00:18:10] Speaker 04: Are there any other questions? [00:18:12] Speaker 01: No. [00:18:13] Speaker 01: No, thanks. [00:18:14] Speaker 04: All right. [00:18:14] Speaker 04: We'll hear from the government. [00:18:20] Speaker 00: Thank you. [00:18:20] Speaker 00: May it please the court, Peter Smith on behalf of the United States. [00:18:24] Speaker 00: I'd like to take the arguments in the order that they were addressed this morning by the court, starting with Appellant's Brady argument. [00:18:32] Speaker 00: The district court did not abuse its discretion in denying relief on Appellant's Brady claim. [00:18:39] Speaker 00: Main claim that Appellant presented this morning was that he could have better impeached Agent Valdini had he had more time to do so. [00:18:48] Speaker 00: And at bottom, our argument is that there simply isn't any materiality to this argument. [00:18:56] Speaker 00: Appellant had multiple opportunities to question Agent Valdini under oath. [00:19:01] Speaker 00: The court gave him a wide berth to do so. [00:19:04] Speaker 00: And there's no indication that any additional or better impeachment [00:19:09] Speaker 00: would entitle appellant to relief under the Brady standard, which is essentially that you would achieve a different outcome at trial. [00:19:17] Speaker 00: Appellant this morning in oral argument and perhaps in reply is raising a new argument, an argument he characterizes, counsel characterizes as a Fifth Amendment argument. [00:19:30] Speaker 00: And this court shouldn't consider that argument because it is new in reply or on [00:19:35] Speaker 00: in the oral argument. [00:19:37] Speaker 00: In the district court and in his opening brief, Appellant made this Fifth Amendment argument as an aspect of materiality. [00:19:45] Speaker 00: He said he was raising a Brady claim and that an aspect of why the alleged Brady violation was material was that she either might not have testified or testimony might have been different [00:20:03] Speaker 00: if she had known about Agent Valdini's presence. [00:20:07] Speaker 00: And then I just have a couple of quick points about that. [00:20:09] Speaker 00: Appellant knew going in that this was a public proceeding. [00:20:13] Speaker 00: She didn't ask about Agent Valdini's identity until three hours into her testimony during the lunch break. [00:20:22] Speaker 00: And the district court made a factual finding that Appellant's testimony at the trial custody hearing hadn't been induced by the government [00:20:33] Speaker 00: or altered by the government. [00:20:35] Speaker 00: And that factual funding was not clearly erroneous given the lengthy evidentiary hearing the district court held. [00:20:42] Speaker 00: As I mentioned, the defense had ample opportunity to question Agent Baldini to raise this before the jury and even argued at length to the jury in closing argument that the government's conduct was improper and warranted an acquittal. [00:21:02] Speaker 00: in the case. [00:21:03] Speaker 01: Mr. Smith, let me ask you a hypothetical. [00:21:08] Speaker 01: Suppose Valentini had done everything that he did. [00:21:12] Speaker 01: Suppose the district judge learned of it when the district judge learned of it. [00:21:16] Speaker 01: And suppose the district judge had said, as a remedy for this misconduct, I'm dismissing the case. [00:21:26] Speaker 01: I could just continue the case to give defense some time to prepare based on the new information they've learned. [00:21:32] Speaker 01: I could not do a continuance and just kind of make them play catch up. [00:21:37] Speaker 01: But in an extreme instance, in part as a prophylactic to disincentivize law enforcement from playing these tricks in the future, I'm just missing the case. [00:21:52] Speaker 01: Do you think that this court could reverse that decision? [00:21:57] Speaker 00: I guess it depends on the procedural posture. [00:22:00] Speaker 00: I mean, if the court is dismissing the indictment, which I guess is suggested by the court's question, the district court, I mean, is dismissing the indictment, the government would be able to appeal. [00:22:09] Speaker 00: And I think that that would be an abusive discretion on these facts. [00:22:13] Speaker 00: There needs to be, in order to have some sort of due process violation and the dismissal of an indictment, truly outrageous government conduct. [00:22:24] Speaker 01: Why is this not truly outrageous? [00:22:28] Speaker 00: Because the district court initially believed that what the government had done was somehow assist appellant's ex-husband in the custody case. [00:22:37] Speaker 00: And the evidentiary hearing bore out that that was not actually what happened. [00:22:43] Speaker 00: So what appellant is complaining about is Agent Valdini's presence, about his connections with [00:22:52] Speaker 00: these various people during the luncheon meeting. [00:22:55] Speaker 00: But none of that rises to the level of that kind of outrageous conduct that would warrant dismissal. [00:23:01] Speaker 01: If the facts, as I think Judge Leon found them, are true, Valdini lied to a state judge. [00:23:12] Speaker 01: Valdini destroyed evidence, the fourth day's notes. [00:23:19] Speaker 01: Valdini lied. [00:23:22] Speaker 01: to a federal court when he was asked, what did you talk about at the lunch meeting? [00:23:28] Speaker 01: And you don't think that's outrageous? [00:23:35] Speaker 00: Well, I guess I think that that is problematic. [00:23:40] Speaker 00: But I don't think it wouldn't warrant dismissal of the indictment. [00:23:44] Speaker 00: And I would add that appellant has never sought that remedy. [00:23:48] Speaker 01: So what's to stop a future Valdini from doing all of this again, if at the end of the day, the government was not penalized for it? [00:24:01] Speaker 00: Well, the government was penalized for it through the district court's admonitions, through the lengthy Brady hearing, through the fact that a defense counsel was able to raise all of this before the jury, which did, in fact, penalize the government's case. [00:24:16] Speaker 00: And I would add on the flip end of this is that, and this also goes to appellant's derivative use argument, [00:24:25] Speaker 00: that this case isn't just about Agent Valdini. [00:24:30] Speaker 00: This was a combined investigation that involved the FBI. [00:24:34] Speaker 00: The prosecutors were directing the investigation. [00:24:36] Speaker 00: The prosecutor explained to the district court during the Brady hearing why there really wasn't any derivative use of information that Agent Valdini had gleaned during the custody hearing. [00:24:50] Speaker 00: The government never used any statement or never introduced at trial any statement that appellant made during the hearing and the prosecutor on November 8 in the afternoon transcript at pages 60 to 65 explained to the district court why the government hadn't used any of this information to direct its investigation. [00:25:10] Speaker 00: She explained that [00:25:13] Speaker 00: They had debriefed Tonya Finch, who was the whistleblower before the child custody hearing, that the prosecutors had already done a lot of legwork on the case and already had a game plan for the investigation. [00:25:28] Speaker 00: And so I would urge the court to look at that transcript reference. [00:25:33] Speaker 00: And then I would also say that the court, it is an interesting hypothetical, but appellant simply hasn't [00:25:42] Speaker 00: raised that claim that would warrant, has never asked for dismissal of the indictment. [00:25:47] Speaker 00: And therefore, this court can't award relief that appellant has never asked for. [00:25:51] Speaker 00: If there aren't other questions about the, Judge Katz, do you have a question? [00:26:00] Speaker 00: I'm ready to talk about the instructions. [00:26:03] Speaker 00: The instructions, OK. [00:26:11] Speaker 03: Let me ask you about them. [00:26:14] Speaker 03: If we look at the totality of the circumstances here, you have three different instructions that are in the general ballpark of Thomas. [00:26:35] Speaker 03: you have the first one. [00:26:36] Speaker 03: First one looks like a Thomas instruction, but there's a lot of improvising. [00:26:42] Speaker 03: There's some improvising about how important a unanimous verdict is to the, not just to the parties and the community, but the whole country. [00:26:53] Speaker 03: The second Thomas-like instruction [00:27:01] Speaker 03: that seems like the comments are pretty pointed in the way they are directed to one juror. [00:27:09] Speaker 03: The court hopes that this juror will come around. [00:27:15] Speaker 03: And the third instruction, which looks a little bit like a Thomas Light instruction, that initial instruction from the Red Book, but it too has [00:27:29] Speaker 03: a fair amount of improvising with keep an open mind repeated over and over. [00:27:35] Speaker 03: And that might be a truism in the abstract, but in the context of these jury notes, it sure seems like it's an attempt to bully the one juror. [00:27:48] Speaker 03: When you put all of that together, why isn't that coercive? [00:27:54] Speaker 00: I guess I have several different responses, Judge Katz, if the court would bear with me. [00:28:00] Speaker 00: At bottom. [00:28:01] Speaker 00: You asked a lot of different questions. [00:28:02] Speaker 00: Yeah, so I'm going to sort of untangle those over time. [00:28:05] Speaker 00: And I just hope the court allows me an opportunity to fully explain. [00:28:10] Speaker 00: So first of all, the court's got to view the context of all of these different instructions and everything that's happening in the district court. [00:28:19] Speaker 00: Appellant has initially agreed to the giving of the Thomas instruction. [00:28:24] Speaker 00: So that's part of the context the court has got to consider. [00:28:29] Speaker 03: Agreed. [00:28:29] Speaker 03: And there's the improvising. [00:28:31] Speaker 00: Right, and then as to the improvising, I guess I have a few different points about that. [00:28:37] Speaker 00: First of all, it would have been clear to the jury that the Thomas instruction had ended because the court told the jury, OK, I've given you these two instructions. [00:28:46] Speaker 00: You're going to have them. [00:28:46] Speaker 00: Go ahead and consider them. [00:28:48] Speaker 00: Of course, I'm paraphrasing. [00:28:49] Speaker 00: And then the court went on to give what we call in our brief a pep talk, where the court sort of encouraged the jury. [00:28:56] Speaker 00: A court went on, and the jury would have understood that that [00:29:01] Speaker 00: was different from the actual legal instructions. [00:29:05] Speaker 00: They would have recognized that difference. [00:29:07] Speaker 00: And they would have recognized that as a pep talk, as the court was trying to sympathize with the jury and urge them to keep going. [00:29:17] Speaker 00: There are, of course, two other factual aspects this court's got to consider. [00:29:22] Speaker 00: The jury went back and continued to deliberate for quite a while, eventually issued partial verdicts, and then [00:29:29] Speaker 00: still spent additional time before it was finally issued all of the verdicts in that case. [00:29:37] Speaker 00: And that sort of shows that no particular instruction was coercive. [00:29:44] Speaker 00: Then I would add a few other facts this court's got to consider. [00:29:47] Speaker 00: The district court acted [00:29:50] Speaker 00: when it responded to the first note and it gave that sort of extemporaneous pep talk, the jury had only been out for one and a half or two hours. [00:29:59] Speaker 00: So it was very early. [00:30:00] Speaker 00: And Judge, the district court looked at that and felt that the instructions were appropriate at that time because the jury had come back so quickly in such a complicated case. [00:30:14] Speaker 00: And then I guess the final response I would give Judge Katz's to your question is that, [00:30:19] Speaker 00: The instructions, the three different instructions, were not coercive because the court, and this goes to the other language, and also goes to Appellant's point about not surrendering the juror's honest convictions. [00:30:36] Speaker 00: So the court several times reminded the jurors to keep an open mind, but it also said that the jurors needed to discuss their views, indicating that the juror [00:30:47] Speaker 00: who was refusing to deliberate had a view that was important and that that juror needed to discuss and the other jurors needed to discuss with that juror that juror's view. [00:30:59] Speaker 00: The district court also in its final instruction again reminded the jurors that they have to express their own views. [00:31:08] Speaker 00: And as Judge Walker indicated earlier referring to the Black case, [00:31:15] Speaker 00: That is very similar to what the court did in black. [00:31:18] Speaker 00: So when you add all those facts together, you add the context where appellant has asked for the Thomas instruction initially, you have a note that seems process oriented. [00:31:29] Speaker 00: You have a note where the jurors are refusing to follow the court's instructions and is not deliberating. [00:31:37] Speaker 04: You're adding that is not deliberating. [00:31:39] Speaker 04: The note says the juror has made up his mind. [00:31:42] Speaker 00: Yes, and the district court sort of discussed that on the first day before giving the Thomas instruction about the district court's view about what exactly that meant. [00:31:54] Speaker 00: And the district court found, among other things, that it indicated that the juror wasn't deliberating. [00:32:00] Speaker 04: But if the district court made that finding, why did the district court give an anti-deadlock instruction instead of the part one instruction? [00:32:11] Speaker 04: in kind of an admonishment to just, you know, deliberate instruction. [00:32:20] Speaker 04: You can't have it both ways and say, well, this was only an indication that a juror wasn't deliberating when the district court essentially made a finding that there was a deadlock or else there [00:32:37] Speaker 04: you're not supposed to give the Thomas instruction until you've found that there's a deadlock. [00:32:44] Speaker 00: I mean, I appreciate the court's point. [00:32:45] Speaker 00: I think the district court found essentially both, but the court needs to bear in mind that the context... How can you find both? [00:32:53] Speaker 00: Well, the context of [00:32:57] Speaker 00: This court's review of the district court's decision is where the appellant is asking for the court to give the Thomas instruction. [00:33:04] Speaker 00: He's agreeing with that. [00:33:06] Speaker 00: And defense counsel is saying it's important to come out strong. [00:33:09] Speaker 00: So that's sort of the background of this court's evaluation of the district court's decision. [00:33:15] Speaker 00: The district court also thought that the Thomas instruction basically reflected or summarized all the points the district court wanted to make at that time. [00:33:25] Speaker 00: So he did explain his reasons for giving that instruction at that point. [00:33:31] Speaker 00: And again, Pollan agreed with that. [00:33:33] Speaker 00: And therefore, that argument, the timing of the instructions and the giving of the Thomas instruction initially, that is waived. [00:33:40] Speaker 00: And this court shouldn't consider that as an independent claim. [00:33:42] Speaker 04: Well, I'm not saying that it was error to give the Thomas instruction initially. [00:33:47] Speaker 04: What I'm saying is that the note said that the juror has made up [00:33:54] Speaker 04: his mind or his or her mind. [00:33:58] Speaker 04: Okay. [00:33:58] Speaker 04: And in response to that, a Thomas instruction is given. [00:34:04] Speaker 04: There is a second note on the 27th that also says that a juror has his mind made up. [00:34:19] Speaker 04: And, and then [00:34:22] Speaker 04: There's more instructions that are given where again, the judge departs from the standard language. [00:34:32] Speaker 04: And then finally on the 28th, the jurors say, well, we have a partial verdict and we are deadlocked on two counts. [00:34:44] Speaker 04: So it's reasonable to infer [00:34:51] Speaker 04: that with respect to each of those three notes the same juror has made up his mind and is deadlocked. [00:35:08] Speaker 04: And if you give an instruction that says keep an open mind after the juror has said [00:35:21] Speaker 04: after it's been told to the court three times that this juror has made up his mind, how can that be construed reasonably as anything other than an instruction that you are to basically consider changing your mind, which is [00:35:48] Speaker 04: kind of the essential aspect of an anti-deadlock instruction, which has to be balanced with language that says, but don't give up your honest conviction. [00:36:03] Speaker 00: I guess I have two responses, Your Honor. [00:36:05] Speaker 00: In the notes, there was also, I mean, I appreciate Your Honor's point about the juror's mind made up. [00:36:11] Speaker 00: But the jury note also said that the juror's mind was made up based, and I'm paraphrasing now, essentially, regardless of the facts. [00:36:21] Speaker 00: And that indicates to me that there was a process element to this. [00:36:27] Speaker 04: I don't recall anything that says regardless of the facts. [00:36:30] Speaker 00: Well, let's see. [00:36:32] Speaker 00: He said. [00:36:36] Speaker 00: The first note is he already had, this is in the transcript of the first jury note, it's page 25. [00:36:47] Speaker 00: He already has his mind made up and he is not basing his decision on the facts. [00:36:51] Speaker 00: So I'm just saying the district court and the parties seem to understand that there was some process element to this, that there was a refusal to cooperate and to deliberate. [00:37:02] Speaker 00: But setting that aside, and I appreciate your honor's point, [00:37:07] Speaker 00: I do have a response to that, even if it was a deadlock, even if this court construes that as a deadlock. [00:37:15] Speaker 00: The situation isn't that different from Dorsey cited in the government's brief, where Dorsey says that in that case a juror was singled out. [00:37:26] Speaker 00: The court had learned, essentially, the split among the jurors through a jury poll. [00:37:31] Speaker 00: and then instructed the jury to go back and deliberate. [00:37:35] Speaker 00: And this court said that the re-instruction and the instruction was not coercive, and it explained why. [00:37:40] Speaker 00: And so I think that given the constellation of facts in this case, Dorsey is instructive. [00:37:47] Speaker 00: And I would, in addition to what I said earlier, I would add a couple of factual points about what happened here. [00:37:54] Speaker 00: The government's, I mean, the court's instructions to the jury [00:37:58] Speaker 00: didn't telegraph an outcome. [00:38:01] Speaker 00: The court told the jury to keep an open mind, but it did also tell the juror who had his or her mind made up to discuss their view with the others and for the others to listen to that juror's point of view. [00:38:17] Speaker 00: And that is similar to what happened in black and other cases where this court has affirmed and found that those courts, that those instructions weren't coercive. [00:38:27] Speaker 04: So, I mean, I understand when you look at it as- But I guess, you know, the cases that you have cited from our circuit and you cite the McDonald case from the Second Circuit, the court basis of its assessment or its ruling or its holding that an instruction that just says keep an open mind and keep deliberating isn't coercive [00:38:58] Speaker 04: It bases that on saying that in context, the instruction isn't asking anyone to change their vote or to actually re-examine their views. [00:39:20] Speaker 04: It's just telling them that deliberation is hard, keep at it, [00:39:27] Speaker 04: et cetera. [00:39:31] Speaker 04: You know, the essence of an anti-deadlock instruction that's coercive is either an explicit statement or an implication that somebody who has made up their mind and isn't budging should consider re-examining their views. [00:39:49] Speaker 04: So my question to you is when [00:39:56] Speaker 04: the court is told three times that a juror has made up his mind that said explicitly twice. [00:40:05] Speaker 04: And then the third time it said that the jury is deadlocked on at least two counts, which in effect means the same thing. [00:40:16] Speaker 04: Um, and you basically give an instruction targeting that deadlocked juror. [00:40:23] Speaker 04: telling him to keep an open mind, putting aside what we've said in Thomas and its progeny about you're supposed to, you know, not depart from the language. [00:40:37] Speaker 04: But when you tell a holdout juror who's made clear that they are the holdout to keep an open mind, um, [00:40:52] Speaker 04: Why shouldn't we interpret that as tantamount to the juror being told or that the juror would reasonably believe that he was being told you should consider changing your mind? [00:41:07] Speaker 00: I guess for several reasons, Your Honor. [00:41:09] Speaker 00: First of all, the court's instructions did have this other aspect of not only keeping an open mind, but discussing your views and expressing your own point of view, which acknowledges that that juror [00:41:21] Speaker 00: the juror who was the subject of the note had an important perspective to share. [00:41:27] Speaker 00: I'd also note that this court's Lopez Sierra decision, which is cited in the government's brief, indicates that reminding the jury of an instruction as opposed to rereading the instruction is less coercive. [00:41:41] Speaker 00: And of course, each time the district court gave one of these instructions, or three different instructions, as you pointed out, Your Honor, [00:41:50] Speaker 00: the jury continued to deliberate, showing that the juror whose mind was made up didn't immediately, that the instructions weren't unduly coercive because the juror didn't immediately turn their view around. [00:42:05] Speaker 00: The jury continued to deliberate. [00:42:07] Speaker 00: The jury rendered partial verdicts after a couple of days. [00:42:10] Speaker 00: And on the third or fourth day of deliberations, finally reached a unanimous verdict on all the counts. [00:42:18] Speaker 00: So those all show that, [00:42:20] Speaker 00: the instructions as a whole weren't unduly coercive. [00:42:25] Speaker 04: What do we do with the fact that the third round of instructing on November the 28th, when the jurors sent a note saying that they had a partial verdict, the court responded with an instruction to keep an open mind. [00:42:43] Speaker 04: But the court did not, of course, have the language in there about not surrendering on this convictions. [00:42:51] Speaker 04: in the court also didn't reference the earlier instructions or remind the jurors of his earlier instructions, including the Thomas instruction that he had given earlier that had the language about not surrendering honest convictions. [00:43:11] Speaker 00: Right. [00:43:12] Speaker 00: I agree with that, Your Honor. [00:43:13] Speaker 00: And I think that our answer is that the instruction on that day, the third day, [00:43:19] Speaker 00: had a component that was similar to Thomas, that said that that juror must express their own point of view. [00:43:26] Speaker 00: And that is, I believe it's in the November 28th transcript of page 15, the court asked the jury to continue deliberations and to keep an open mind, but then said, [00:43:40] Speaker 00: with a view of listening to others and expressing your own point of view, which is similar. [00:43:44] Speaker 04: What are we supposed to do with the holding of Thomas and the holding of several cases after Thomas that says that the language of Thomas is what's supposed to be given and that anything else is presumptively coercive and reversible? [00:44:01] Speaker 00: Yeah, I think the courts, you know, this case is distinguishable from that precedent like Yarborough where this court said, [00:44:09] Speaker 00: that the district court shouldn't make any substantive departure from Thomas. [00:44:15] Speaker 00: And the court gave the Thomas instruction verbatim. [00:44:20] Speaker 00: The court then later referred back to the Thomas instruction, but didn't reread it. [00:44:27] Speaker 00: And then the final instruction that we just discussed I would say is not a substantive departure from Thomas. [00:44:33] Speaker 00: It's consistent with it. [00:44:35] Speaker 00: It's similar to it. [00:44:36] Speaker 00: The language isn't exactly the same, [00:44:38] Speaker 00: But the court was giving an instruction that included both aspects of keeping an open mind, but also expressing each juror's point of view with the view toward listening to what they had to say. [00:44:52] Speaker 04: Expressing, telling the jurors that you should feel free to speak your point of view to others is nothing like saying, [00:45:03] Speaker 04: Don't surrender your own honest convictions solely to reach a verdict or solely because other jurors disagree. [00:45:11] Speaker 00: I think the point is the same, Your Honor. [00:45:13] Speaker 00: And I think the jury would have understood it. [00:45:14] Speaker 04: How is a point the same that you have a right to speak out? [00:45:18] Speaker 04: That's not the same as the point that you have a right to maintain your convictions. [00:45:24] Speaker 00: Well, I think it does. [00:45:26] Speaker 04: You cannot change your vote if it does violence to your honest conviction to do so. [00:45:32] Speaker 00: Right, because what I'm saying is that the district court wouldn't be telling the jurors to express their point of view if their point of view didn't have legitimacy or if it weren't important. [00:45:43] Speaker 00: That's all I'm saying. [00:45:44] Speaker 00: So that the court is recognizing both aspects. [00:45:48] Speaker 00: Keep an open mind and deliberate with the others, but also express your point of view, which has value. [00:45:55] Speaker 00: So you get both aspects there. [00:45:58] Speaker 00: So I don't think it's a [00:45:59] Speaker 00: substantive or substantial departure from Thomas. [00:46:02] Speaker 00: I think it's consistent with Thomas. [00:46:05] Speaker 00: So that would be my answer to the court's question. [00:46:08] Speaker 00: But as to the overall question of whether reversal is warranted, I would go back to my answer to Judge Katz and say that the court's got to look at all the instructions together. [00:46:19] Speaker 00: It's got to look at the entire procedural posture, which includes appellant's counsel asking for the Thomas instruction initially. [00:46:28] Speaker 00: And it's got to look at each of these notes and what the juror notes said and what the court's response said. [00:46:35] Speaker 00: And so we think that cases like Dorsey and Black are instructive and that the instructions that the district court gave weren't together unduly coercive. [00:46:46] Speaker 00: They did not coerce that individual juror to change their settled convictions or their honest convictions. [00:46:55] Speaker 04: Judge Katz, Judge Walker, do you have any further questions for the government? [00:47:00] Speaker 01: Just one question. [00:47:02] Speaker 01: Where's Valdini in terms of, has he received kind of a reprimand by anyone in the executive branch? [00:47:11] Speaker 00: Oh, I don't know the answer to that question, Your Honor. [00:47:13] Speaker 00: I'm sorry. [00:47:16] Speaker 00: The last I knew he was still working at the IRS, but I don't know the answer to that question. [00:47:25] Speaker 04: All right, thank you. [00:47:26] Speaker 04: I'll let you make any closing statement in conclusion. [00:47:36] Speaker 00: Thank you, Your Honors. [00:47:38] Speaker 04: All right, thank you, Mr. Smith. [00:47:40] Speaker 04: Mr. Stolarz, you are out of time. [00:47:44] Speaker 04: I'll give you two minutes for rebuttal. [00:47:48] Speaker 02: Thank you, Your Honor. [00:47:49] Speaker 02: Briefly, as to the Fifth Amendment question that the government said it was just for the Brady materiality, that's, with all due respect, plainly false. [00:47:57] Speaker 02: I filed an independent motion to dismiss. [00:47:59] Speaker 02: I filed an independent motion for mistrial and a post-trial motion for dismissal based on the Fifth Amendment issue. [00:48:04] Speaker 02: So therefore, it's not ensconced under the Brady. [00:48:06] Speaker 02: It's a separate issue where a separate ruling was made. [00:48:09] Speaker 02: As to the issue about whether or not derivative use was used and the government attempt to sort of take that, you know, downplay that, the government [00:48:18] Speaker 02: prosecutor herself at JA 373 said the witness testified they did take derivative use of the information they received that's not in dispute and I questioned the man and I said did you issue subpoenas from this yes did you talk to witnesses because of this yes it was clearly derivative use he didn't go there to find out where her son was gonna spend Christmas [00:48:36] Speaker 02: And then finally, as to the jury instructions, I do want to note that the second instruction goes to the court's point about targeting a juror. [00:48:44] Speaker 02: The second instruction told the juror, I hope you will come around to keeping an open mind. [00:48:49] Speaker 02: That's directed at one person. [00:48:51] Speaker 02: Coming around is exactly what he's trying to tell him to do without giving to not surrender his honest convictions. [00:48:57] Speaker 02: And then the final instruction after the partial verdict was announced, he said, keep an open mind three times, but did not say hold your honest conviction. [00:49:06] Speaker 02: Your honor, I do want to end by saying that if this is the way the system works, we're all in trouble. [00:49:12] Speaker 02: You know, they said they were going to give Asia-Baldinia talking to, like when my kid, you know, spills and spills his drink. [00:49:18] Speaker 02: Like, that's not the response here. [00:49:21] Speaker 02: There's OPR complaints. [00:49:22] Speaker 02: I've not heard anything about there, but asked to give statements. [00:49:25] Speaker 02: Judge Leon said it best. [00:49:26] Speaker 02: It's a cavalier approach, sloppy and careless. [00:49:29] Speaker 02: It's about fairness, about conducting the powers of the US government in a fair way against an individual. [00:49:33] Speaker 02: That's what this is about. [00:49:35] Speaker 02: And Judge Leon said the attitude of the approach to government has no place in the Department of Justice, and we agree. [00:49:39] Speaker 02: Thank you, Your Honor. [00:49:40] Speaker 04: Thank you. [00:49:41] Speaker 04: The case is submitted.