[00:00:00] Speaker 05: Case number 20-3005, United States of America versus Alvin Gaskin's Abelans. [00:00:06] Speaker 05: Mr. Hornell, Freddie Abelans. [00:00:08] Speaker 05: Ms. [00:00:08] Speaker 05: Kelly, Freddie Abelans. [00:00:10] Speaker 01: Good morning, counsel. [00:00:11] Speaker 01: Mr. Hornell, please proceed when you're ready. [00:00:15] Speaker 02: Good morning, your honors. [00:00:16] Speaker 02: Thank you for giving me this opportunity to present this case to you, and may it please the court. [00:00:21] Speaker 02: I'd like to start by noting something I didn't include in Mr. Gaskin's brief, but which is very illustrative of Mr. Gaskin's relationship, or rather, his total lack of relationship to the conspiracy. [00:00:32] Speaker 02: On page 18 of the government's brief about the search of the conspiracy stash house, the government wrote, quote, while Island and Miller deliberated over whether Island should enter the building and speculated about why the police might have been there, Miller offered to send, quote, the faggie over, which was a reference to appellant. [00:00:51] Speaker 02: This paragraph was disingenuous because the government failed to note that Miller's so-called offer was obviously a joke. [00:00:59] Speaker 02: Turning to the transcript, Miller said, quote, hey, you want me to laughs, send some unintelligible. [00:01:06] Speaker 02: You want me to send the faggy? [00:01:08] Speaker 02: Island, that ain't the unintelligible. [00:01:12] Speaker 02: Miller laughs, you Island, oh God. [00:01:17] Speaker 02: While the government's mischaracterization of this care of conversation is suggested Mr. Excuse me. [00:01:24] Speaker 02: While the government's mischaracterization of this conversation as suggested and Mr Gaskin involvement should be admonished. [00:01:30] Speaker 02: The conversation is illustrative. [00:01:33] Speaker 02: Why would the suggestion of sending Mr. Gaskins to the stash house be so funny to the conspirators? [00:01:38] Speaker 02: Well, it would be very funny to imagine Mr. Gaskins, the guy that Miller used to pick his kids up from school and take them to sports crap practice, to suddenly discover a stash house used to cut drugs and count money. [00:01:49] Speaker 02: I mean, imagine his reaction. [00:01:52] Speaker 02: I'd like to use my time to highlight a few facts which prove Mr. Gaskins' innocence beyond a preponderance and even beyond a reasonable doubt. [00:02:02] Speaker 02: First, in the extensive wiretaps in this case, amounting to over 14,000 phone calls, Frederick Miller and the other co-conspirators spoke explicitly and in code with each other about the conspiracy. [00:02:14] Speaker 02: While Mr. Gaskins was on the line, they never did this. [00:02:18] Speaker 02: The government has never proffered an explanation for this, and I've spent hours trying to figure out why this could be. [00:02:23] Speaker 02: The only reasonable explanation is also the obvious one. [00:02:26] Speaker 02: The conspirators were hiding the conspiracy from Mr. Gaskins. [00:02:30] Speaker 02: That's why it's funny to think of sending him to the stash house. [00:02:33] Speaker 02: They would have no reason to hide this conspiracy from him if he knew about it. [00:02:37] Speaker 02: Conspiracy requires agreement and specific intent to further the aim of the conspiracy, and neither is possible in the absence of knowledge. [00:02:44] Speaker 01: Can I ask a question, Mr. Ranault, which is [00:02:49] Speaker 01: Why not have an affidavit from Mr. Gaskins? [00:02:52] Speaker 01: If you have affidavits from others, why not have one from him that would put into the record evidence that from him directly that he was not knowledgeable, did lack the specific knowledge of the object of the conspiracy, didn't have the intent. [00:03:12] Speaker 02: Well, Your Honor, it was my understanding that the law made it very clear that a hearing would be required to meet, like I said, the minimums of due process. [00:03:24] Speaker 02: So we certainly could submit that affidavit. [00:03:27] Speaker 02: It seems quite clear to me that the judge would be [00:03:31] Speaker 02: simply disregard the affidavits as he disregarded every other affidavit that we submitted. [00:03:37] Speaker 02: But we didn't even submit one, it's because we assumed that if the motion was denied based on the papers, that we'd have an opportunity to present that information. [00:03:51] Speaker 02: But we never had that opportunity. [00:03:53] Speaker 01: Well, I didn't follow the last part. [00:03:55] Speaker 01: If the motion was denied, you'd have an opportunity to present what information? [00:03:59] Speaker 02: We assumed that Mr. Gaskin would have the opportunity to have an evidentiary hearing where he could testify and be under cross-examination. [00:04:08] Speaker 02: An affidavit is not a replacement for live testimony. [00:04:13] Speaker 01: No, that's definitely true. [00:04:14] Speaker 01: I mean, live testimony obviously can be desirable. [00:04:18] Speaker 01: in a lot of situations, but I assume that it's not uncommon, at least to have an affidavit in addition to live testimony. [00:04:25] Speaker 01: I'm sure there's affirmative evidence. [00:04:27] Speaker 02: Sure, your honor. [00:04:28] Speaker 02: And, you know, we would, you know, if this were remanded and for some reason, we're not permitted a hearing, we would definitely submit that affidavit. [00:04:36] Speaker 02: It's in this case, it's hard to imagine that affidavit moving the needle, given, like I said, all the other affidavits, including an affidavit from an officer of the court being disregarded. [00:04:47] Speaker 02: You know, the [00:04:47] Speaker 02: So I understand the question. [00:04:49] Speaker 02: I appreciate that. [00:04:50] Speaker 02: And perhaps it was a mistake for me not to include an affidavit in that motion. [00:04:55] Speaker 02: But nonetheless, Mr. Gaskins has the right to testify. [00:04:59] Speaker 02: And having a testimony tested by cross-examination in a live setting would be persuasive, I think, in a way that an affidavit would never capture it. [00:05:10] Speaker 03: And Mr. Gaskins did move for a limited discovery and an evidentiary hearing before the district court? [00:05:16] Speaker 02: Yes, he did. [00:05:21] Speaker 03: You mentioned in your brief that something like the summary judgment standard doesn't apply, but isn't that exactly what would apply here? [00:05:29] Speaker 02: Well, Your Honor, I would love for the court to apply a summary judgment standard. [00:05:33] Speaker 02: Under a summary judgment standard, the court would have had to take all evidence in favor of Mr. Gaskin's in this case, because he was the one who was basically, summary judgment was found against him. [00:05:45] Speaker 02: So if the court applied a summary judgment standard, then we would have to have a hearing with live testimony because the court made credibility determinations based on the affidavits and based on the evidence that was submitted. [00:06:04] Speaker 02: And frankly, the court took every inference against Mr. Gaskins, which is totally inappropriate in a summary judgment stance. [00:06:18] Speaker 03: I take it you agree that abusive discretion is the relevant standard here for the district judges failure to rule on the procedural motion seeking an opportunity to testify and take limited discovery. [00:06:37] Speaker 03: That would be an abusive discretion review on our part. [00:06:41] Speaker 02: I don't see why it would be in this case. [00:06:44] Speaker 02: The abuse of discretion standard is there for questions where the court has an opportunity to, or where the trial court has some sort of special knowledge. [00:07:01] Speaker 02: In this case, the trial court has no special knowledge in regards to the [00:07:10] Speaker 02: When it decides everything on the papers, right, when in a certain in a in a I'm sorry I was talking about just to these. [00:07:18] Speaker 03: So the two separate questions one is the merits, and one is the propriety or not of the district judge, having. [00:07:27] Speaker 03: implicitly denied the motion for an evidentiary hearing and or limited discovery. [00:07:34] Speaker 03: And it's the latter that I was talking about the district judges denial of any opportunity to take any discovery and actually put forward evidence. [00:07:44] Speaker 03: Would that be a legal question or would that be abusive discretion or a combination? [00:07:50] Speaker 02: Well, in this case, it seems to me to be a legal question. [00:07:53] Speaker 02: In a normal civil case, a judge certainly has discretion to limit discovery when appropriate. [00:08:03] Speaker 02: So actually, let me correct that. [00:08:07] Speaker 02: In this case, or in any case, because a judge has the discretion to limit discovery as appropriate, et cetera, [00:08:16] Speaker 02: I would say that that should be reviewed for an abuse of discretion, because that is, as you said, something that is generally committed to the discretion of the court. [00:08:28] Speaker 02: In this case, it is clearly an abuse of discretion, I believe, when you have a no evidentiary hearing and no discovery and then [00:08:38] Speaker 02: The, the court makes inferences that are, you know, that are takes the emphasis against the non moving party. [00:08:52] Speaker 02: you know, makes assumptions about evidence that could be clearly contradicted or easily contradicted by documents that were specifically identified. [00:09:02] Speaker 02: You know, we identified specific documents that we know are in the government's possession that we didn't get to see that are very obviously relevant. [00:09:10] Speaker 02: And there's no excuse for the court to deny us access to those. [00:09:14] Speaker 03: And those have to do with, those are the documents about the rental of the apartment. [00:09:20] Speaker 03: What else? [00:09:21] Speaker 02: Well, we did a FOIA request for the FBI's files and we got some interviews with FBI agents. [00:09:31] Speaker 02: One of them has a paragraph that's entirely blacked out except for the one sentence that said, I think it said either Mr. Gaskin's or the faggy, I can't remember, will take the blame for everything. [00:09:45] Speaker 02: But the whole rest of that paragraph is blocked out. [00:09:49] Speaker 02: So based on a FOIA exemption. [00:09:52] Speaker 02: And we have no idea what's there, but it seems very likely that the rest of that paragraph is relevant to Mr. Gaskin's case. [00:10:00] Speaker 01: On the ultimate merits question about whether the district court was correct in denying the request for a certificate, that is also reviewed for abuse of discretion, I thought, based on our court's decisions. [00:10:12] Speaker 01: But it sounded like you were suggesting that we shouldn't review it for abuse of discretion. [00:10:16] Speaker 02: In this case I don't think it should be because it was decided in something analogous to a rule 56 motion for summary judgment, which is generally viewed de novo. [00:10:26] Speaker 02: In this case there was no hearing, you know, none of the factors that would normally [00:10:32] Speaker 02: counsel for an abuse discretion review apply here because it was decided on the papers and this court is just as capable as the trial court is of reviewing something on the papers and that's and so a de novo standard is appropriate. [00:10:48] Speaker 03: If there were a hearing if there had been a hearing a factual hearing this would be akin to a bench trial [00:10:54] Speaker 03: And then we would be reviewing a district judges determination of facts and resolution of evidentiary conflicts on the combination of Clearly erroneous fact finding and or errors of law. [00:11:12] Speaker 02: Had there been a bench trial, I think that makes sense. [00:11:16] Speaker 02: You know that I haven't looked into that that much because that's just not what happened here. [00:11:20] Speaker 02: But I think that in the in the case of when you when you have a review without a bench trial or without a trial at all, you should use the same standard review that you'd use in any civil case where there was no trial, which is de novo. [00:11:34] Speaker 00: Mr. Hornell, let me ask you something. [00:11:36] Speaker 00: I've been listening to you. [00:11:37] Speaker 00: And to me, you're ignoring the elephant in the room, which is our precedent from the 1950s, which every circuit who's had this very unusual statute has relied on and cited. [00:11:52] Speaker 00: And I don't see how you get over the language that ends with the sentence that ends with [00:12:04] Speaker 00: Whereas here, the district judges exercise that discretion. [00:12:09] Speaker 00: We cannot require them so on and so forth, except perhaps in a case in which the refusal was completely capricious and without rational basis. [00:12:19] Speaker 00: That is an enormous bar to clear. [00:12:23] Speaker 00: And I have not been able to find a case where [00:12:28] Speaker 00: a plaintiff has been successful in whether I think a couple of them remanded, but has been successful in meeting this standard. [00:12:40] Speaker 00: And I find it pretty hard to believe that this is the first case that would clear that bar. [00:12:50] Speaker 02: Well, your honor, I would say a few things. [00:12:53] Speaker 02: First, this this case doesn't these cases don't come up very often. [00:12:57] Speaker 02: They're very rare. [00:12:58] Speaker 02: So there just hasn't been much opportunity to further develop the law. [00:13:06] Speaker 02: to me, odd statement where it said that the circuit court shouldn't be or shouldn't force a district judge to saltify himself by certifying an opinion contrary to his belief. [00:13:21] Speaker 00: To me, it's not just contrary to his belief. [00:13:24] Speaker 00: He's the 13th juror. [00:13:25] Speaker 00: And in this case, this trial lasted three months. [00:13:28] Speaker 00: The jury was out two weeks. [00:13:31] Speaker 00: That's what they that's how I read his the court's language. [00:13:37] Speaker 00: He's the 13th or the district judge is the 13th juror. [00:13:40] Speaker 00: He's heard all this evidence. [00:13:43] Speaker 02: Well, in this case, the judge heard this evidence and reached a wrong conclusion from it, which was reversed by this court and very clearly wrong opinion from it, at least judging by this court's previous opinion. [00:14:03] Speaker 00: Well, you do recognize that there's a difference in this [00:14:08] Speaker 00: area between not proven and innocent. [00:14:13] Speaker 02: Yes, of course, your honor. [00:14:15] Speaker 02: But there's no evidence. [00:14:17] Speaker 02: So in that, for example, in the order the judge made to deny Mr. Gaskin's motion for acquittal post trial, the judge made these sweeping pronouncements that had no basis in reality, if I can be frank. [00:14:35] Speaker 02: And the judge, for example, wrote that, excuse me, [00:14:44] Speaker 02: that, excuse me, one second, please. [00:14:48] Speaker 02: That it is, quote, it is pollucidly clear beyond any doubt that defendant Gaskin's actions as a logistical administrator were not legitimate. [00:15:00] Speaker 02: So when you have a statement that is so sweeping and so completely incorrect, if you don't mind me saying so, especially given the complete lack, absence of any evidence whatsoever, [00:15:15] Speaker 02: that DTI, Dream Team Investigators, was used as a front for the drug ring as was insisted upon again in this opinion. [00:15:23] Speaker 02: It's very difficult to see that and say that the judge's previous opinions should be given deference by this court. [00:15:37] Speaker 02: This trial was in 2004. [00:15:41] Speaker 02: It was 2019 when the judge issued his order denying the certificate. [00:15:48] Speaker 02: And it doesn't make sense to assume that the judge is remembering things accurately from a trial 15 years previous as opposed to- I'll tell you something, Mr. Hornell. [00:16:02] Speaker 00: You're talking to somebody who was a district judge for four years over 30 years ago. [00:16:07] Speaker 00: and I had one criminal trial that lasted three weeks. [00:16:11] Speaker 00: The jury was out a long time. [00:16:13] Speaker 00: I remember everything about that trial. [00:16:17] Speaker 02: And I don't mean to give any disrespect, of course, to that. [00:16:24] Speaker 02: But in this case, the objective evidence by reading the judge's opinion in 2019 is that he doesn't remember because he states that DTI was a front for a drug ring and hardly pretended to be otherwise. [00:16:40] Speaker 02: There was no evidence whatsoever in that trial that DTI was a front for the drug ring. [00:16:47] Speaker 02: There was evidence that the only evidence that could possibly be determined to be that way was the fact that Mr Gaskins arranged the flights when Mr Miller asked him to do so, but that doesn't make the bigger the bigger question that that as I took the district judge. [00:17:05] Speaker 03: to be raising is, where's the legitimate business? [00:17:09] Speaker 03: And there's very, you know, the declarations attempt to fill in that gap. [00:17:15] Speaker 03: And the brief helpfully points out that investigative firms are not only working for government clients, so there might be other clients, but, you know, the [00:17:26] Speaker 03: The district judge is looking at a tremendous amount of evidence of illegal drug conspiracy activity and really saying, come on, use common sense. [00:17:38] Speaker 03: If the only game in town is the drug conspiracy, then that's evidence that DTI is a front. [00:17:48] Speaker 03: At least that's how I understood his reasoning. [00:17:51] Speaker 02: Well, there's evidence certainly that Miller and the other conspirators got almost all of their money from the drug conspiracy. [00:17:59] Speaker 02: I think that's true. [00:18:00] Speaker 02: The question is whether or not Miller used DTI as a drug front, and there's no evidence of that. [00:18:07] Speaker 02: there's only evidence that Miller was involved in the drug conspiracy and that Miller had this business, DTI, an investigative firm that he was building up on the side. [00:18:20] Speaker 02: And the question is, is there any evidence that Mr. Gaskins, who worked for DTI, did the taxes, et cetera, knew about this other business? [00:18:31] Speaker 03: And did Gaskins also work for the government at the time? [00:18:35] Speaker 03: Did I pick up that he had some government ID or he worked for the Veterans Administration? [00:18:41] Speaker 03: No. [00:18:43] Speaker 02: That Mr. Gaskin's did? [00:18:45] Speaker 02: Yeah. [00:18:46] Speaker 02: I don't know. [00:18:47] Speaker 02: I don't believe so. [00:18:49] Speaker 02: I think Mr. Gaskin's only income at the time, at least that I know of, was the modest salary he was drawing from DTI. [00:18:58] Speaker 02: We should also talk about DTI, right? [00:19:01] Speaker 02: I would love to have more evidence of DTI's legitimacy, but I was denied access to any of those documents. [00:19:08] Speaker 02: There are bank statements I haven't been able to see. [00:19:11] Speaker 02: There were these DTI-related documents that were seized from Miller's apartment and Miller's aunt's apartment that we should assume those have nothing to do with the drug conspiracy because if they had anything to do with the drug conspiracy, they would have gone in with all the rest of the evidence. [00:19:29] Speaker 01: Can I ask you a question about the relationship between the previous opinion that our court handed down in this case and then the certificate proceeding that we're dealing with now? [00:19:38] Speaker 01: Is the way that you understand the interrelationship that just by virtue of the opinion we rendered last time, was that in and of itself, including the descriptions in it about the evidence, was that in and of itself something that would have dictated the issuance of the certificate or something more have to happen? [00:19:58] Speaker 02: Thank you. [00:19:59] Speaker 02: That's a great question. [00:20:02] Speaker 02: As a general rule, a opinion overturning a conviction for lack of evidence is not enough for a certificate of innocence. [00:20:11] Speaker 02: There has to be more to it. [00:20:13] Speaker 02: I think this court's opinion does provide enough of a corrective, enough of a statement to say that it does mandate it. [00:20:26] Speaker 02: right? [00:20:27] Speaker 02: You can't look at a dragnet of the size that was put around this drug conspiracy. [00:20:33] Speaker 02: It was very serious, very, you know, deadly drug conspiracy. [00:20:36] Speaker 02: It failed to turn up any evidence whatsoever against Mr. Gaskin's and then go on to say, well, it's probably true that he was involved anyway. [00:20:45] Speaker 02: There's nothing but speculation that would cause that. [00:20:47] Speaker 02: There's no evidence that would actually believe that. [00:20:50] Speaker 02: The court's opinion didn't write there isn't sufficient evidence of Mr. Gaskin's involvement. [00:20:57] Speaker 02: It said there is no evidence of Mr. Gaskin's involvement. [00:21:00] Speaker 03: What about the... [00:21:01] Speaker 03: the putting that in the context of the procedural posture, which is the sufficiency of the evidence to prove something beyond a reasonable doubt. [00:21:11] Speaker 03: And the notion that it's a sort of a term of art, is there any evidence sufficient that a reasonable juror could have found beyond a reasonable doubt? [00:21:21] Speaker 03: And you say that once, and then every other time in the opinion, you say no evidence, no evidence, no evidence, meaning [00:21:28] Speaker 03: no evidence that would meet that bar, whereas it's a completely different bar in the civil determination of innocence. [00:21:39] Speaker 02: Sure. [00:21:40] Speaker 02: I think that the way I read this court's previous opinion really, to me, used much stronger language than was necessary. [00:21:49] Speaker 02: And if we're going to be [00:21:53] Speaker 02: I don't believe that we should narrow the opinion or narrow the reading of these cases where we say there's insufficient evidence, but then try to take every word completely literally an opinion that says that the 1950s opinion, for example, that the honorable Judge Henderson had referenced earlier. [00:22:17] Speaker 02: The language in this court's previous opinion was far, far, far stronger than would have been necessary to just say, well, there wasn't sufficient evidence. [00:22:29] Speaker 02: This was too weak to make a finding beyond a reasonable doubt. [00:22:35] Speaker 02: That's not what's there in that opinion. [00:22:37] Speaker 02: That opinion has a paragraph which I quoted in my brief, which says there is no evidence that puts him in any conversations about drugs, drug money. [00:22:50] Speaker 02: None of the cooperating witnesses had anything said. [00:22:56] Speaker 01: Let's suppose that we [00:22:58] Speaker 01: just assume that we disagree with you on that. [00:23:00] Speaker 01: I know you resist that, but just assume for arguments purposes that you disagree with, that we disagree with you on that. [00:23:05] Speaker 01: And we read it more in the way that Judge Pillard was suggesting. [00:23:08] Speaker 01: And I don't mean to suggest that Judge Pillard necessarily reads it that way. [00:23:10] Speaker 01: I'm just saying, let's just assume that it's read in that way through the lens of the Beyond a Reasonable Doubt standard. [00:23:16] Speaker 01: And so that's what our prior opinion stood for. [00:23:19] Speaker 01: Then the opinion itself doesn't do the work to give you an entitlement to a certificate. [00:23:27] Speaker 01: at that point, right? [00:23:27] Speaker 01: Because the burden is on you to prove something. [00:23:31] Speaker 02: Yeah, I mean, there's no doubt that the burden is on the person seeking the certificate to prove to a preponderance their innocence. [00:23:42] Speaker 02: I think it's very important to keep in mind the possibility of proving this, right? [00:23:50] Speaker 02: There's no way that anybody could ever disprove [00:23:55] Speaker 02: their involvement to it in a conspiracy, right? [00:23:58] Speaker 02: Because there is nobody there during every conversation that person had. [00:24:02] Speaker 02: The only way that Mr. Gaskin could prove absolutely that he was not involved is to have had walked around with a camera 24-7 for those years and years and show all the video and say, hey, look, it was never there. [00:24:14] Speaker 02: So we do have to take into account the possibility. [00:24:18] Speaker 02: And what we have is we have this constellation of evidence. [00:24:21] Speaker 02: And so when you look at that constellation of evidence, regardless of what this court had said in its previous opinion, when you look at that constellation of evidence, it proves, I think, beyond a reasonable doubt or even beyond a shadow of a doubt that he wasn't involved. [00:24:36] Speaker 02: You just don't have that kind of investigation and don't turn up any evidence. [00:24:41] Speaker 02: It doesn't make any sense. [00:24:42] Speaker 02: You don't have a person who's an administrator for a drug conspiracy, as the government puts him in here, living in a modest apartment with his mother for years. [00:24:55] Speaker 02: And you don't have a long set of cooperating witnesses [00:24:59] Speaker 02: who had every reason to throw Mr. Gaskin's under the bus, who were facing life in prison, none of them had said he had any involvement in that. [00:25:09] Speaker 02: And these aren't honorable people, right? [00:25:13] Speaker 02: These are drug conspirators who are involved in the violent conspiracy. [00:25:17] Speaker 02: So we have to ask why didn't they say he was involved? [00:25:20] Speaker 02: And I think the only reasonable thing to conclude from that is that he wasn't. [00:25:24] Speaker 01: Okay, let me make sure my colleagues don't have any additional questions for you at this time, and we'll give you a little time for rebuttal. [00:25:30] Speaker 02: I don't. [00:25:32] Speaker 01: Okay, thank you, Mr. Hornell. [00:25:33] Speaker 01: We'll hear from the government now. [00:25:35] Speaker 01: Thank you, Your Honors. [00:25:37] Speaker 04: Good morning, Your Honors, and may it please the court, Katherine Kelly on behalf of the United States. [00:25:42] Speaker 04: Your Honors, in this case, the district court properly denied and did not abuse its discretion in refusing to grant Mr. Gaskin's certificate of innocence, because he failed to establish that he did not commit any of the acts charged. [00:25:56] Speaker 04: It's important to remember that the burden of proof at this juncture is on appellant to show his actual innocence. [00:26:06] Speaker 04: which is very different as the court realizes from this court saying that there was insufficient evidence of his guilt in the conspiracy beyond a reasonable doubt. [00:26:18] Speaker 04: Knowing that the burden is on Mr. Gaskins, he chose not to submit an affidavit explaining his knowledge and his intent in this situation, despite the fact that there's no procedure [00:26:33] Speaker 04: in the statute or, frankly, no legal authority that requires either discovery or an evidentiary hearing in a certificate of innocence proceeding. [00:26:42] Speaker 04: The courts or the government is unaware of any such requirements. [00:26:47] Speaker 04: And the few cases that have decided on certificates of innocence indicate that they can be decided on the papers, on the trial record, [00:27:00] Speaker 04: Documentary evidence affidavits and so forth that are submitted by the parties Did the government respond? [00:27:09] Speaker 04: To the motion for an evidentiary hearing I didn't see it in the record and I just want to make sure I'm understanding the record The government did not your honor wasn't asked to by the courts and my recollection is that the court had decided Without asking the government to respond so your honor did not miss anything in the record [00:27:28] Speaker 03: The government had no objection, it appeared, to the request for limited discovery and a hearing. [00:27:35] Speaker 03: Typically, when a party has the burden of proof, [00:27:44] Speaker 03: they also have some opportunity to gather information and or have a process for putting that before the court. [00:27:53] Speaker 03: But it's your reading that this is an exceptional situation in which there's no such opportunity. [00:28:01] Speaker 04: My point was, Your Honor, is I have not seen any case law that indicates that discovery is required or that an evidentiary hearing is required and that [00:28:14] Speaker 04: In fact, Appellant acknowledged in his district court filings at J87 that the unjust conviction statute does not direct district courts to follow particular procedures in determining whether a petitioner is entitled to a certificate of innocence. [00:28:28] Speaker 04: It's a little unusual in the aftermath of a criminal trial, given that Mr. Gaskins received all the required documentation. [00:28:38] Speaker 04: There's been no claim of withheld information in the criminal proceedings here. [00:28:43] Speaker 04: that he would need additional discovery. [00:28:46] Speaker 04: And frankly, a number of the documents that he cited, particularly the lease agreement and the rental agreement for the staff department, those were publicly available. [00:28:57] Speaker 04: Those were trial exhibits. [00:29:02] Speaker 04: The flight information document was also a trial exhibit to the extent that he attached to his motion for discovery, an FBI interview, [00:29:13] Speaker 04: with Mr. Miller, it's clear even with the redacted information that it is in fact Mr. Miller who's been spoken to. [00:29:21] Speaker 04: We have a situation here where, although Appellant did not bother to submit his own affidavit, he did get Mr. Miller to write an affidavit for him and submit it. [00:29:32] Speaker 04: He certainly was able then to ask Mr. Miller, what else did you tell the FBI? [00:29:38] Speaker 03: So it seems like your position comes down to that, [00:29:42] Speaker 03: In order to have an opportunity. [00:29:44] Speaker 03: I mean one one major difference obviously between the criminal trial and this civil proceeding is that [00:29:54] Speaker 03: Mr. Gaskins would have a reason not to testify in the criminal trial given his Fifth Amendment right, whereas here, once he's been acquitted, he might want to come forward and testify. [00:30:05] Speaker 03: So it seems like your position is that because he didn't submit his own declaration, that cuts off his opportunity to be heard in person in a hearing. [00:30:20] Speaker 03: Is that your position that if he had submitted a declaration that the district court might have exercised discretion to go forward and hear from him or not, but that that evidence would have been in place, but that given that he didn't do that, he forfeited any, even though he asked for the ability to testify and to get more information that he's forfeited that by not putting a declaration in the record? [00:30:43] Speaker 04: I think so, given the case law that we have where it's, of course, appellant's burden to show that he's actually innocent. [00:30:51] Speaker 04: And in an inchoate crime like conspiracy, that's your best evidence. [00:30:58] Speaker 04: What is in Mr. Gaskin's mind? [00:30:59] Speaker 04: When you are seeking to get money for an unjust conviction and the burden is on you, [00:31:08] Speaker 04: And knowing that the case law does not indicate any sort of requirement for an evidentiary hearing or discovery, it really is incumbent on you if you're going to support your burden by preponderance of the evidence to put forth what was in your own mind. [00:31:22] Speaker 03: Right. [00:31:23] Speaker 03: Well, the case law in our circuit is very, very sparse. [00:31:26] Speaker 03: Indeed, the case law nationally is pretty sparse. [00:31:29] Speaker 03: But you do cite the Paloongan versus United States case out of the Seventh Circuit. [00:31:33] Speaker 03: which does seem to support remanding for an evidentiary hearing in this case because there there was a it was the inverse there was a certificate grant but the district court had not yet heard from the former prisoner on his state of mind and there there too criminal intent was was key and that was a case of of i think it was [00:31:54] Speaker 03: exporting defense articles without license. [00:31:59] Speaker 03: And so why shouldn't we be just as willing to vacate certificate denial for want of the in-person testimony from the very person whose state of mind is critical? [00:32:16] Speaker 04: Because Appellan has already had that opportunity. [00:32:19] Speaker 04: There was absolutely nothing stopping him from [00:32:22] Speaker 04: putting his state of mind directly into the record with his own affidavit. [00:32:29] Speaker 04: Of course, indulgence, I have a deployment decision here. [00:32:34] Speaker 04: It was a very narrow question about [00:32:48] Speaker 04: I believe the question, if I'm understanding it correctly in Palingan, was about whether or not a particular item, which was a rifle scope, was considered a defense article under the statute. [00:33:02] Speaker 04: And there was some question about its classification and whether or not would be evidence allowed from the agency about its classification, whether or not it met regulatory criteria. [00:33:17] Speaker 04: And then if that happened, if there was such evidence from the agency and whether or not it met regulatory requirement, then as a practical matter, defendant could show his actual innocence only by testifying about his knowledge. [00:33:31] Speaker 04: That's different than what we have here, where really the whole question before [00:33:38] Speaker 04: court to establish his actual innocence is what was in Mr. Gaskin's mind. [00:33:43] Speaker 04: He chose not to tell the court that, and there's really no reason to give him a second bite of the apple. [00:33:48] Speaker 03: I don't see how that distinguishes Pulling In, which also dealt with what was in the individual's mind, whether he was someone who had reason to believe [00:34:03] Speaker 03: that the scope was a controlled article or whether it was plausible, as I think he claimed, that he thought there was some kind of, you know, [00:34:16] Speaker 03: embargo to Indonesia or something. [00:34:19] Speaker 03: But the question is the same in the sense of we need to have the district court be able to probe and assess the credibility of the person who's claiming lack of knowledge. [00:34:32] Speaker 03: And when you actually have that person on the stand under cross-examination and in Mr. Gaskin's case saying, yeah, I worked for this Miller for a while. [00:34:44] Speaker 03: And counsel could say, well, did it surprise you that there did not seem to be very many clients coming and asking for investigative services? [00:34:53] Speaker 03: And isn't that just the kind of thing that were Mr. Gaskin's able to testify credibly, the court would potentially be swayed by? [00:35:04] Speaker 03: And were he not, that one would have more confidence in the denial? [00:35:09] Speaker 04: Your honor, I would just say first that I'm not saying that a court can never hold an evidentiary hearing certainly, but in this case, kind of similar to the grubs case in the Sixth Circuit, the defendant chose not to add that to the record. [00:35:22] Speaker 04: And therefore the court properly relied here a lot on the trial evidence to make its decision. [00:35:29] Speaker 04: Appellant chose to put in other affidavits and not his own. [00:35:33] Speaker 04: And I would also note that twice in his pleadings, Mr. Gaskin said that he believed he had met the burden to obtain the certificate of innocence on the pleadings alone. [00:35:43] Speaker 04: And it was only if he thought that the court was going to rule against him that he argued that he should get a hearing and the right to discovery. [00:35:55] Speaker 04: And again, [00:35:56] Speaker 04: It's simply given this case, given that the real knowledge is in Mr. Gaskin's head, there was no reason for him not to file his own affidavit, particularly given the state of the law and the fact that there aren't particular procedural requirements written into the law. [00:36:11] Speaker 00: Let me ask you, Ms. [00:36:12] Speaker 00: Kelly, nobody's discussed yet the fact that Judge Lamberth also said there was a failure on this prong about [00:36:26] Speaker 00: neglect or misconduct. [00:36:28] Speaker 00: And he ended by saying, although he may have been a limited participant, he knew or should have known. [00:36:34] Speaker 00: Now, the should have known is what I'm interested in and asking you about some of the trial evidence. [00:36:47] Speaker 00: We said in our opinion, reversing his conviction, [00:36:55] Speaker 00: Although there was substantial evidence of the wealth amassed by other conspirators, there was no such evidence regarding Gaskins. [00:37:02] Speaker 00: To the contrary, he lived in a modest apartment with his mother. [00:37:07] Speaker 00: Now, if we take Miller's affidavit in this iteration of this case, that Gaskins, notwithstanding he was a gopher, insisted that Miller [00:37:21] Speaker 00: prove that this investigative agency was on the up and up. [00:37:29] Speaker 00: Let's take that. [00:37:37] Speaker 01: We may have just lost Judge Henderson's audio and I make sure she was in the middle of a question. [00:37:45] Speaker 00: Paints a picture of Gaskins as [00:37:54] Speaker 01: All right. [00:37:56] Speaker 00: Can you hear me? [00:37:57] Speaker 01: I can hear you now. [00:37:57] Speaker 01: We can hear you now, Judge Henderson. [00:37:59] Speaker 01: I think we lost you there for just a minute. [00:38:01] Speaker 00: OK. [00:38:02] Speaker 00: Well, did you hear me talk about Miller's affidavit? [00:38:05] Speaker 00: You're not going in and out, Your Honor. [00:38:07] Speaker 01: Just started to talk about it, but then didn't hear the rest of it. [00:38:10] Speaker 00: All right. [00:38:10] Speaker 00: Well, Miller painted the picture. [00:38:13] Speaker 00: And I don't know what's wrong with my internet again, but painted a picture of [00:38:17] Speaker 00: a gopher being very punctilious to the extent of insisting that he proved that the business was on the up and up. [00:38:27] Speaker 00: So my question, I guess from the trial evidence is this substantial evidence of the wealth amassed by the other conspirators, is it reasonable for someone like Gaskin's who made a big deal out of making sure this was a legitimate business [00:38:49] Speaker 00: to think that that investigative agency would support the lifestyle of his co-conspirators? [00:39:00] Speaker 04: Your Honor, I think the fact that Mr. Miller said that Mr. Gaskins essentially required him to prove that DTI was a legitimate company really informs the fact that that shows that Mr. Gaskins was indeed suspicious of DTI. [00:39:19] Speaker 04: And if he's going to the length before he takes a job to ask the person who offers them a job to show that it's a legitimate company, that tells you boatloads that he's suspicious. [00:39:31] Speaker 00: Well, what about the substantial evidence of the lifestyle of the co-conspirators? [00:39:38] Speaker 00: Have you looked at the trial evidence in that regard? [00:39:42] Speaker 00: I mean, what was put in? [00:39:45] Speaker 04: I recall there were [00:39:48] Speaker 04: There was trial evidence about how much money was being obtained, particularly the heroin was in the five figure numbers as far as how much it was worth when it was bagged and so forth. [00:40:04] Speaker 04: I believe there was one cooperator who was talking about having a lavish lifestyle. [00:40:11] Speaker 04: But I don't think that it really answers the questions to say, [00:40:16] Speaker 04: Mr. Gaskins got $600 a week for his input into the conspiracy. [00:40:21] Speaker 04: It's not clear that the fact that he made less than other conspirators, for instance, means that he was not a participant, a knowledgeable and active participant in the conspiracy. [00:40:32] Speaker 00: Well, I guess what I'm really asking is this. [00:40:35] Speaker 00: Is it reasonable if you assume that Mr. Gaskins did all this investigation of the agency first [00:40:46] Speaker 00: And in the face of substantial wealth of all these people he was dealing with, he still thought, well, I'm still suspicious, but I'm not going to do anything about it. [00:41:02] Speaker 00: That's the should have known part of the problem. [00:41:05] Speaker 04: Correct, Your Honor. [00:41:06] Speaker 04: And I don't think it's reasonable for him to say that [00:41:09] Speaker 04: I'm seeing this wealth and it doesn't raise my suspicions. [00:41:15] Speaker 04: Particularly when you look at it along with the other evidence, he had a drug sale of his own to Mr. Briggs, who was a conspirator in this case. [00:41:25] Speaker 04: So this isn't somebody who was a babe in the woods who knew nothing about the drug trade. [00:41:31] Speaker 04: The nature of the flights that he was booking, they were last minute, they're short turnaround flights. [00:41:38] Speaker 04: for Mr. Brown, who ultimately was a money mule, for lack of a better word, for the conspiracy. [00:41:47] Speaker 04: He's subscribing to these cell phones, which are now claimed to be for DTI's business and for Mr. Miller's business, but it's highly unusual for an employer to say, you know, put the, you're gonna, [00:42:04] Speaker 04: perhaps you order the business phones, but you don't do it in your own name with your own social security number and just hand them off to the other folks. [00:42:11] Speaker 04: So does it matter? [00:42:12] Speaker 03: I mean, this is a curious position to be in, but let's say you were the district judge, and I just wonder how much the formalities matter, you know, that the flights [00:42:24] Speaker 03: that Gaskin booked were by, as you say, a money mule, but the drug money there was not from the drug of which [00:42:38] Speaker 03: Mr. Gaskin was convicted. [00:42:41] Speaker 03: So he was convicted of a heroin conspiracy, even though the broader conspiracy charges generally were a number of different drugs. [00:42:51] Speaker 03: But if Brown, and I don't remember whether it was PCP or the money coming out of that locale wasn't heroin money, does that matter? [00:43:01] Speaker 03: How formal? [00:43:07] Speaker 03: The evidence that comes the closest to saying Mr. Gaskin might have been putting his head in the sand, if those close implications of, come on guy, you should be backing away from these people, are not the thing that he was charged with, does that prevent him from getting a certificate of innocence? [00:43:32] Speaker 04: I think you can look at all the evidence in deciding whether or not to grant the certificate of innocence. [00:43:37] Speaker 04: And one of the problems under the statute is that he has to show that he did not commit any of the acts charged and that he didn't, by misconduct and neglect, cause or bring about his own prosecution. [00:43:52] Speaker 04: So here he was charged with conspiracy to distribute heroin, PCP, crack, and powder cocaine. [00:44:02] Speaker 04: And it was his neglect, at the very least, that caused his own prosecution. [00:44:08] Speaker 04: He hit his head in the sand at the very most, and that's assuming he didn't know already what was going on. [00:44:14] Speaker 04: He had his lease name on the lease for the stash apartment, the rental application, there were utilities in his name for that apartment, and so forth. [00:44:25] Speaker 04: The court will recall too that there was a lot of evidence at trial that although DTI was holding itself out as a defense investigation agency, Mr. Kramer from the Federal Public Defender Service testified that 90% of the folks who are criminal defendants in DC are CJA eligible and that [00:44:50] Speaker 04: there were no funds given to DTI or any of the conspirators. [00:44:54] Speaker 01: This line of argument on the neglect prong, that wouldn't succeed in the way that the Seventh Circuit looks at the neglect prong, right? [00:45:03] Speaker 01: It's contingent on looking at the neglect prong in a different way. [00:45:06] Speaker 04: That's correct, Your Honor. [00:45:08] Speaker 04: And we would respectfully say that the Seventh Circuit reads that too narrowly, that the Graham Court and the Fourth Circuit got it right, that you can look at the evidence at trial and so forth. [00:45:18] Speaker 04: It's just not a matter of you have to take a material step to, for instance, I think that case was a [00:45:26] Speaker 04: making a false confession in order to create your own situation. [00:45:30] Speaker 01: Right. [00:45:30] Speaker 01: So we have we have different courts of appeals that look at this prong differently, at least as it stands right now, one of which would be in your favor and one of which would not on this prong. [00:45:38] Speaker 01: And can I just go back to the other prong for one last question? [00:45:41] Speaker 01: And there's one line in the district court's opinion that was interesting to me, and this is on page 105, J 105. [00:45:48] Speaker 01: at the end of the first full paragraph. [00:45:51] Speaker 01: And this is after having gone through some of the indications about whether Gaskins would have known that he was involved in an enterprise that had an illegitimate object. [00:46:02] Speaker 01: And the Discord caps off that paragraph by saying, the burden of proof belonging to Gaskins in this action, this argument does not persuade without more affirmative evidence. [00:46:12] Speaker 01: And without more affirmative evidence part, I suppose one potential response to that is, [00:46:19] Speaker 01: well, there could have been more affirmative evidence if the motion for an evidentiary hearing would have been granted or some discovery would have been allowed or some combination thereof. [00:46:28] Speaker 01: And then you've got your point, which you made in your brief and you've re-aided this morning to the effect that, well, there could have been more affirmative evidence had an affidavit been submitted by Mr. Gaskins. [00:46:37] Speaker 01: And I'm just wondering what we do with that line, given that the district court itself seems to contemplate the possibility of more affirmative evidence making a difference. [00:46:47] Speaker 04: I would just read that, Your Honor, as saying that Mr. Gaskin's did not meet his burden of proof, even after saying twice in his pleadings that he thought that he had presented enough evidence in his pleadings alone to get a certificate of innocence. [00:47:03] Speaker 03: I mean, that's an alternative argument. [00:47:05] Speaker 03: I find that a little harsh in the sense that he looks at this opinion, which does [00:47:12] Speaker 03: involve very far-reaching investigation, many, many cooperators. [00:47:18] Speaker 03: And if the prosecution really were dotting its I's and crossing its T's, it would have had one of those cooperators expound on Mr. Gaskin's role. [00:47:26] Speaker 03: That didn't happen. [00:47:27] Speaker 03: And as I was saying to Mr. Hornau, the no evidence, no evidence has to be taken in the procedural posture. [00:47:35] Speaker 03: But nonetheless, the Court of Appeals does say no evidence, no evidence. [00:47:39] Speaker 03: So first line of argument on their part [00:47:42] Speaker 03: The acquittal for insufficient evidence alone is enough. [00:47:47] Speaker 03: Second line of defense, which the government never opposed, is give us an opportunity to collect and put in evidence. [00:47:54] Speaker 03: What's wrong with that? [00:47:58] Speaker 04: Just simply that the burden was on him, and based on the existing case law, there is no clear right to an evidentiary hearing or to discovery. [00:48:09] Speaker 04: In addition to that, it's simply a matter of when you don't choose to put in evidence, then you're stuck. [00:48:16] Speaker 04: If you make that decision, then that's that. [00:48:19] Speaker 04: He had the best evidence in his own mind. [00:48:23] Speaker 03: But is that the choice he made when he asked for discovery? [00:48:26] Speaker 03: That's not the choice he made. [00:48:27] Speaker 04: Frankly, I just don't see [00:48:33] Speaker 04: what is going to happen in discovery that is going to show his state of mind. [00:48:39] Speaker 04: I believe that there's just no way, and I think Mr. Hornell said this in his own argument a little while ago, there's no way to disprove his involvement in the conspiracy. [00:48:50] Speaker 04: So I frankly don't see what's going to happen if you get a document dumped from the government to show that Mr. Gaskin's [00:49:00] Speaker 04: did not act as logistical support, who was arranging things that were not him touching the drugs for the conspiracy. [00:49:10] Speaker 04: So I frankly don't see, when you look at the items he attached to his motion for discovery, it's stuff that he had at his fingertips already. [00:49:19] Speaker 04: They were exhibits from trial. [00:49:23] Speaker 04: and information that you want some more information about what Mr. Miller said to the government. [00:49:29] Speaker 04: Ask Mr. Miller, you got an affidavit from him. [00:49:31] Speaker 04: You certainly know how to find out what's in Mr. Miller's mind. [00:49:35] Speaker 03: Ms. [00:49:36] Speaker 03: Kelly, is it not, seems like it's possible it's an abuse of discretion for the district judge to not even mention, acknowledge or rule on the motion for limited discovery and an evidentiary hearing. [00:49:52] Speaker 04: I think it's just implicit in the court's decision that it was denied. [00:49:56] Speaker 04: I don't know that the court needs to mention that. [00:49:58] Speaker 04: It's quite clear that the court denied it. [00:50:02] Speaker 04: You know, I'd note one other thing, too. [00:50:06] Speaker 04: Mr. Hornol has mentioned this as being akin to a Rule 56 proceeding, and it's [00:50:11] Speaker 04: There's simply no certificate of innocence case law that indicates that getting a certificate of innocence is a Rule 56 proceeding. [00:50:20] Speaker 04: There's one court that actually said it, I believe it was the Agus Showish decision in the Seventh Circuit, said it's more like moving to get your seized property returned to you under Promotional 41G. [00:50:33] Speaker 04: Um, but even if you're going to have a rule 56 proceeding, um, this court said in the Pollock decision that if you're claiming to need discovery for summary judgment proceedings, you have to put in an affidavit explaining why discovery is needed. [00:50:47] Speaker 04: So once again, you have a situation where appellant would have to put in his own affidavit saying, this is why I need discovery in this case, because frankly, in this case, he's trying to say, I don't know what was in my own head, which is of course ridiculous. [00:51:01] Speaker 01: Let me make sure my colleagues don't have additional questions for you, Ms. [00:51:06] Speaker 01: Kelly. [00:51:07] Speaker 00: I do have one out of Rigsby, and that is this. [00:51:11] Speaker 00: This very high bar that our court has set with the use of the word stultify. [00:51:24] Speaker 00: And if you look at that paragraph, the court [00:51:28] Speaker 00: It doesn't limit it to the presiding judge, but it is the presiding judge in that case. [00:51:34] Speaker 00: And there are going to be times, and I think some of those other cases, at least one of them had a district judge reviewing a certificate of innocence who had not been the trial judge. [00:51:46] Speaker 00: But here, Judge Lamberth had been the trial judge. [00:51:52] Speaker 00: So our court set at least an extremely high bar where the judge had been the trial judge. [00:52:02] Speaker 00: Do you see any lessening of that if he hadn't been? [00:52:13] Speaker 00: In other words, the use of the word stultify, you can see the panel saying, [00:52:21] Speaker 00: This trial judge sat through three months, jury out two weeks. [00:52:27] Speaker 00: He listened to all the evidence. [00:52:29] Speaker 00: And we're going to say, notwithstanding we're reversing it, that it's been reversed, we're going to say that he's got to certify that the defendant is in fact [00:52:49] Speaker 00: innocent and had nothing to do with his prosecution except in the bar is that we're going to say only if perhaps the trial judge was completely capricious and without rational basis in denying it. [00:53:07] Speaker 00: That's a, I don't know that I've ever read a standard of review that's that high. [00:53:15] Speaker 04: No, it's extremely high. [00:53:17] Speaker 04: In fact, if I recall correctly, the Rigsby Court had even questioned for a moment whether or not there could be a pilot review of the denial of the certificate of innocence, and then came to the conclusion that it would review for abuse of discretion. [00:53:29] Speaker 04: As Your Honor had said earlier, the trial judge here was in fact sitting as a 13th juror when he was looking at the certificate of innocence evidence before him. [00:53:40] Speaker 04: And it was a very lengthy case. [00:53:43] Speaker 04: And I would also note too that this is not a case where there's really a concern that the district court has forgotten the facts. [00:53:53] Speaker 04: I believe Mr. Miller within the last six to nine months was re-sentenced for a third time in this case. [00:53:57] Speaker 04: So this is not a case that went away in 2006. [00:54:00] Speaker 04: It's still living in some manner in the district court today. [00:54:04] Speaker 04: Or at least until recently. [00:54:09] Speaker 04: Thank you, Your Honor, for all the reasons we've stated and given particularly the evidence at trial, we respectfully request that you affirm the decision of the district court. [00:54:20] Speaker 01: Thank you. [00:54:21] Speaker 01: Thank you, Ms. [00:54:21] Speaker 01: Kelly. [00:54:22] Speaker 01: Mr. Hornell, we'll give you two minutes for your rebuttal. [00:54:24] Speaker 02: Thank you. [00:54:25] Speaker 02: There's a lot to get through. [00:54:26] Speaker 02: I'll get as fast as I can. [00:54:28] Speaker 02: Let's first turn to the case, Abu Sawish versus United States in the Seventh Circuit. [00:54:34] Speaker 02: The district court in that case denied a petition for certificate of innocence without giving the petitioner an opportunity for the hearing. [00:54:41] Speaker 02: And the circuit reversed and held that the court was required to conduct a hearing on the evidence. [00:54:46] Speaker 02: And I know that might reply briefly. [00:54:48] Speaker 02: It's also, as I mentioned in the brief several times, a minimum of due process, the right to a hearing when there's going to be a deprivation of property. [00:54:57] Speaker 02: In this case, there's a very severe deprivation of property. [00:54:59] Speaker 02: There's a lot of money. [00:55:00] Speaker 03: We do summary judgment back and forth all the time without a live hearing. [00:55:04] Speaker 02: Sure, of course. [00:55:05] Speaker 02: But in that case, you take all the evidence in the favor of the non-moving party, which the court did not do in this case. [00:55:10] Speaker 02: So if we're using that standard, then you'd still have to remand. [00:55:16] Speaker 02: I'd like to talk a little bit about the standard of completely comprecious and without rational basis. [00:55:22] Speaker 02: I don't believe that is the standard of review on these cases. [00:55:26] Speaker 02: But even if it is, Mr. Gaskins meets that. [00:55:29] Speaker 02: It is completely capricious to refuse access to evidence when evidence is available and when it has been shown to be available. [00:55:39] Speaker 02: For the government to say that Mr. Gaskins can just ask Mr. Miller what he said in this interview and then put that into an affidavit, that's not credible evidence. [00:55:49] Speaker 02: That's not going to be accepted by the court. [00:55:51] Speaker 02: It was completely capricious for the district court to say that DTI is a front. [00:55:57] Speaker 02: There is no evidence that DTI was a front. [00:56:00] Speaker 02: None. [00:56:01] Speaker 02: The only evidence that was mentioned, which is that they didn't apply for CJA reimbursement, was already called by this court, hardly substantial. [00:56:13] Speaker 02: And for it to pin an entire theory of case on something that the appeals court has already said is hardly substantial is absolutely pretentious. [00:56:23] Speaker 02: The, the argument about the substantial wealth of others in the conspiracy I'd like to point out that my understanding is that is for the others who are not Miller and the conspiracy I believe Miller was sort of like a middling figure in the conspiracy, as opposed to the others who did have an awful lot of money. [00:56:40] Speaker 02: And that's something that needs to be developed at trial with evidence. [00:56:43] Speaker 02: If we're going to talk about these things and trying to shoehorn it into a short argument at the Court of Appeals when you didn't get a chance to do that trial is not a fair procedure and not reasonable and not likely to result in accurate fact finding. [00:56:57] Speaker 02: Going back to the utility and the rental agreement, one of the documents we got through FOIA that we would not have gotten otherwise was this FBI fingerprint report. [00:57:10] Speaker 02: The fingerprints of Mr. Gaskin's were not found on the rental agreement or the utility bills. [00:57:16] Speaker 02: Others people's fingerprints were found on those on those bills. [00:57:20] Speaker 03: So where Mr. Horn of a sink. [00:57:23] Speaker 03: You've emphasized the desire to have the case reassigned to a different judge. [00:57:27] Speaker 03: But I'm not aware of any case anywhere in the country in which a certificate of innocence issue was remanded to a different judge. [00:57:33] Speaker 03: Are you [00:57:34] Speaker 02: I'm not aware of it again. [00:57:36] Speaker 02: There's so little case law here. [00:57:37] Speaker 02: I wouldn't expect to find that. [00:57:40] Speaker 02: So we apply the standards that are typically applied in these cases. [00:57:43] Speaker 02: And when a district judge has shown resistance to a circuit court's very clear corrective and made statements, a number of statements in his opinion, which are not factual, which are contradicted by the record. [00:57:58] Speaker 02: And he just makes those statements and he shows no interest [00:58:01] Speaker 02: in hearing from a defendant, if you had an open mind, if a judge had an open mind, a judge would want to hear from that defendant and let that defendant be tested by cross-examination. [00:58:12] Speaker 02: The judge would be interested in seeing this new evidence. [00:58:16] Speaker 02: The fact that judge had no interest in showing or seeing this evidence and writes this opinion, which is frankly- Well, he looked at the evidence that was put in, but not the evidence that wasn't. [00:58:28] Speaker 03: So on what authority would we order the district judge to have a hearing rather than simply remand for him to consider the question of how evidence might be amassed. [00:58:45] Speaker 02: I'm sorry, I don't understand that question. [00:58:46] Speaker 03: In other words, you've asked for us in the alternative to remand for an evidentiary hearing. [00:58:52] Speaker 03: And I guess my question is, what's the authority on which we could specify the process hearing versus papers? [00:59:00] Speaker 02: I believe that the, well, again, the Seventh Circuit in Abu Swamish versus United States did just that. [00:59:08] Speaker 02: So the circuit courts have an inherent right of supervision over district courts. [00:59:16] Speaker 02: And in this particular case, it's very clear that the district courts refusal to hold a hearing and refusal to allow access to evidence, which we have pointed out, we know this evidence exists, [00:59:29] Speaker 02: We have a task to redact the copies. [00:59:33] Speaker 02: We suspect they're significant more than we weren't able to get to the FOIA process, but we don't know. [00:59:37] Speaker 02: The district court or the circuit court can certainly order the district court to follow procedures that comport with the process. [00:59:46] Speaker 01: Let me make sure my colleagues don't have additional questions for you, Mr. Hornell, before we... No. [00:59:54] Speaker 01: Okay. [00:59:54] Speaker 01: Thank you, counsel. [00:59:56] Speaker 01: Thank you to both counsel for your arguments this morning. [00:59:58] Speaker 01: We'll take this case under submission.