[00:00:00] Speaker 00: Case number 18-3041 et al. [00:00:03] Speaker 00: United States of America versus Ahmed Selim Foraj Aboukadella, also known as Ahmed Moukadella, also known as Ahmed Aboukadella, also known as Ahmed Moukadella, also known as Sheik Abelans. [00:00:16] Speaker 00: Ms. [00:00:16] Speaker 00: Sheikatov for Ahmed Selim Foraj Aboukadella, Mr. Lenners for the United States of America. [00:00:24] Speaker 04: Council, thank you. [00:00:24] Speaker 04: I know we have a cross appeal, appeal in a cross appeal here, and so I think [00:00:29] Speaker 04: The best way to go forward at this point is that we will have, sorry, am I saying Ms. [00:00:39] Speaker 04: Shekatov? [00:00:40] Speaker 04: Ms. [00:00:41] Speaker 04: Shekatov, why don't you start with your argument on your primary issues, only not on the sentencing issue that the government has raised. [00:00:50] Speaker 04: And then we will switch to the government and they can both respond to your arguments and address affirmative lead argument there. [00:00:58] Speaker 04: their cross appeal. [00:01:00] Speaker 04: And we'll make sure everyone has the time they need. [00:01:02] Speaker 04: I know it's sort of, wouldn't it just set at 30 minutes, but don't worry about that. [00:01:07] Speaker 04: And then when Ms. [00:01:07] Speaker 04: Shekatoff, when you get up for a rebuttal, it'll be both responsive and revival. [00:01:11] Speaker 04: And we'll give you, again, we'll give you the time that's warranted for that. [00:01:15] Speaker 04: And then Mr. Liners can do the final rebuttal just on his cross appeal. [00:01:20] Speaker 04: Does that make sense to everybody? [00:01:21] Speaker 03: That sounds great. [00:01:23] Speaker 04: Fantastic, thank you. [00:01:24] Speaker 04: All right, and you can begin then Ms. [00:01:25] Speaker 04: Shekatoff. [00:01:26] Speaker 03: Good morning, Your Honors. [00:01:28] Speaker 03: I may please the court. [00:01:29] Speaker 03: There are four issues today, Mr. Katala's cross appeal. [00:01:32] Speaker 03: I'd like to start by addressing the erroneous admission of one of the key pieces of evidence against Mr. Katala, a spreadsheet that the government said cataloged his calls before and after, sorry, before and during the attacks on the mission and the annex. [00:01:46] Speaker 04: Sorry, I don't know if anyone else is having a little trouble hearing you. [00:01:51] Speaker 04: I can hear you, but it's a little distant sounding. [00:01:54] Speaker 01: Yeah, same with me. [00:01:56] Speaker 05: We did a sound check and it was working well. [00:01:59] Speaker 04: That's how it always works for me, too. [00:02:00] Speaker 04: It's fine at the sound check and then it doesn't work in reality. [00:02:05] Speaker 03: Should I start from the beginning? [00:02:07] Speaker 04: I think we all heard it. [00:02:08] Speaker 04: Yeah, as loud as you can project, please. [00:02:11] Speaker 03: OK. [00:02:12] Speaker 03: The government specifically chose not to authenticate the spreadsheet at trial because it believed it had discharged its authentication duty by authenticating a spreadsheet at a pretrial hearing outside the presence of the jury. [00:02:24] Speaker 03: That was a legal error and it was enormously prejudicial. [00:02:27] Speaker 03: The government can't satisfy its burden to show that the error was harmless. [00:02:32] Speaker 04: At trial, the counsel for your client specifically said, we're not asking the government to put in the certificate [00:02:41] Speaker 04: of authenticity was on page 2590 of the trial transcript. [00:02:47] Speaker 04: And then it wasn't raised in your brief here until the reply brief. [00:02:50] Speaker 04: So how do we, as to the certificate of authenticity argument, was that even before us? [00:02:58] Speaker 03: Yes, just to be clear, we're not saying that the certificate of authenticity needed to be introduced to the jury. [00:03:03] Speaker 03: The government might have tried to introduce that as one way to authenticate the spreadsheet. [00:03:08] Speaker 03: The claim that we raised below and that we've raised here consistently is that the spreadsheet needed to be authenticated. [00:03:14] Speaker 03: Now, if the question is, could it have been authenticated with that specific certification? [00:03:18] Speaker 03: I think there is a question about that. [00:03:20] Speaker 03: Our position at trial was that it violated Mr. Katala's confrontation clause rights. [00:03:24] Speaker 03: And so that's why we didn't think that would suffice. [00:03:28] Speaker 03: We thought it would suffice as an authentication matter, but not under the Confrontation Clause. [00:03:32] Speaker 03: And obviously, the government can't circumvent Mr. Katalas' Confrontation Clause rights by simply not authenticating at all. [00:03:39] Speaker 03: But our claim has always been that they needed to introduce some evidence to authenticate the spreadsheet, and they did nothing. [00:03:46] Speaker 01: So on your view, this [00:03:49] Speaker 01: whole set of issues about authentication boils down to a question of the sufficiency of evidence before the jury on that point. [00:04:00] Speaker 03: That's basically correct. [00:04:01] Speaker 03: And rule 104B and the commentary to that rule and all the case interpreting that rule makes clear that authentication is an aspect or is a matter of conditional relevance. [00:04:11] Speaker 03: That's a question that goes to the jury. [00:04:14] Speaker 03: And so it's not enough to satisfy an authentication burden by simply presenting evidence to the judge. [00:04:22] Speaker 01: To be clear, what do you do. [00:04:24] Speaker 01: What do you do with the statute so you have. [00:04:30] Speaker 01: good argument that that's how authentication normally works under the federal rules of evidence. [00:04:38] Speaker 01: But there's a statute that very specifically addresses authentication in this context. [00:04:45] Speaker 01: And it seems to say that the authentication decision is made once it's made by the court and it's made before the trial. [00:04:58] Speaker 03: I don't read the statute to say that. [00:05:01] Speaker 03: I understand the statute to say that this quantity or this particular piece of evidence that is a certification does satisfy both the hearsay rule and also the authentication requirement. [00:05:11] Speaker 03: But it does not say that the generally understood rule that authentication is something that needs to be done before the jury is something that remains something done before the jury. [00:05:22] Speaker 03: And just to back up. [00:05:23] Speaker 01: It says certification shall authenticate. [00:05:27] Speaker 01: And then it says, if you want to oppose admission of this kind of record for lack of authentication, the motion shall be made and determined by the court before trial. [00:05:44] Speaker 01: And then it says the failure to file such a motion shall constitute a waiver of objection to such record. [00:05:52] Speaker 03: Right. [00:05:52] Speaker 03: And that's actually not that inconsistent with the basic procedure under the federal rules for authentication with certificates either. [00:05:59] Speaker 03: There's a pretrial opportunity to say, hey, this certification is insufficient, or this certification is problematic, and we need discovery about this, that kind of thing. [00:06:09] Speaker 03: But that really doesn't speak to whether the certification or other evidence of authentication subsequently needs to be introduced to the jury. [00:06:16] Speaker 03: The question is always one for the jury. [00:06:18] Speaker 03: That is, relevancy and conditional relevancy are basic tenants. [00:06:22] Speaker 03: of what the jury always needs to decide. [00:06:27] Speaker 01: I'm not sure that's right though, because on background rules, rule 901 says that part of authentication is producing sufficient evidence to support the finding. [00:06:41] Speaker 01: To authenticate the proponent must do that. [00:06:44] Speaker 01: That is part of authentication under the background rules. [00:06:49] Speaker 01: The statute says, [00:06:52] Speaker 01: the pretrial determination by the judge shall authenticate. [00:06:58] Speaker 03: For especially, I don't think that's what it says. [00:07:00] Speaker 03: It says the certification shall authenticate. [00:07:02] Speaker 03: In other words, the certification is a sufficient amount of evidence that will authenticate. [00:07:07] Speaker 03: That's analogous to what 902 says about other self-authenticating pieces of evidence. [00:07:12] Speaker 03: But in the end, that still needs to be introduced to the jury because otherwise the jury has no basis to determine that these quote unquote phone records are actually phone records. [00:07:21] Speaker 03: And maybe it would help just to back up a little bit. [00:07:23] Speaker 03: Again, when I say this is a matter of conditional relevancy, just to flesh that out of it, [00:07:28] Speaker 03: The jury is given a piece of evidence and told, you know, this is XYZ, this is a certification that, or sorry, this is phone records of Mr. Katala's calls. [00:07:36] Speaker 03: They need to have, in order to accept that representation, they need to have some basis to conclude that it actually is that, otherwise it's on its face irrelevant. [00:07:44] Speaker 03: That's why this evidence needs to go to the jury in the first place. [00:07:48] Speaker 03: And I believe that, you know, I don't think it's disputed that the statute is intended to sort of supplement the rules, not because the rules allow self self authentication procedure for civil records or records and civil trials and things like that. [00:08:03] Speaker 05: But if you're correct about about that it seems that the court here did not rely only on the pre trial authentication right I mean the. [00:08:14] Speaker 05: the relevancy and authenticity of the phone records was contested throughout the trial and it was highlighted in the closing arguments. [00:08:22] Speaker 05: So given that that was all before the jury, what is your best argument about sufficiency of the evidence, putting aside the pretrial authentication? [00:08:33] Speaker 03: Okay. [00:08:35] Speaker 03: So can I say two things? [00:08:37] Speaker 03: First, in terms of the standard review, if you're assessing it that way, I do wanna be clear that even though abusive discretion [00:08:42] Speaker 03: Sorry, abusive discretion review would generally apply if you're assessing whether the authentication burden is met. [00:08:49] Speaker 03: Here, because the judge made a legal error, it did not even assess whether the authentication burden was met. [00:08:54] Speaker 03: So you would not be reviewing for abusive discretion. [00:08:56] Speaker 03: You would be deciding de novo whether that authentication burden was met. [00:09:00] Speaker 03: And the government doesn't dispute that. [00:09:02] Speaker 03: So then to answer your substantive question, there really was no evidence before the jury that that's legally sufficient. [00:09:08] Speaker 03: I mean, the government says, well, look at the spreadsheet itself on its face. [00:09:12] Speaker 03: phone records. [00:09:13] Speaker 03: Well, I mean, that that would really eliminate the entire duty of authentication. [00:09:18] Speaker 03: It's a black and white table, you know, dozens of pages. [00:09:22] Speaker 03: It doesn't even have like a logo on it. [00:09:24] Speaker 03: Not that a logo would necessarily suffice, but there's really nothing that would tie it either to the company that supposedly produces records and maintain them. [00:09:33] Speaker 03: And there's certainly nothing to suggest that these are actually accurately maintained in [00:09:38] Speaker 03: records of real phone calls that happened. [00:09:40] Speaker 04: It seems to me there's two types of what you would call authentication here. [00:09:48] Speaker 04: First is a judge has to decide that something is, as a matter of law, sufficiently what it is, that it could even go before the jury. [00:09:56] Speaker 04: And that's what the pretrial hearing did here. [00:09:58] Speaker 04: And you don't challenge that aspect of the district court's decision. [00:10:01] Speaker 04: So it's a matter of law. [00:10:02] Speaker 04: This was sufficient to go before the jury. [00:10:05] Speaker 04: And then you had the opportunity to argue to the court, to the jury. [00:10:10] Speaker 04: I think if you, prior counsel, Mr. Giles' counsel did, and quite thoroughly raised all of the arguments that you're raising here about, you know, you can't rely on, who knows what this thing is. [00:10:24] Speaker 04: It could have been typed up on someone's computer. [00:10:25] Speaker 04: You know, it doesn't have, it doesn't look like anything and a security guard of all people to vouch for it. [00:10:32] Speaker 04: So all of those arguments were made, and it seems to me the authentication argument before the jury you're making is sort of folded in with the, should you credit this? [00:10:43] Speaker 04: Is this evidence that something you should credit that you should deem credible? [00:10:48] Speaker 04: And all of those arguments were made. [00:10:52] Speaker 04: And, you know, at this stage, we take the light in the most favorable, the evidence light most favorable to the verdict at which point, [00:11:01] Speaker 04: I don't know if we do that and everything was vetted thoroughly, all of these arguments that didn't impinge anything on your ability to make any arguments to the jury. [00:11:14] Speaker 04: If lack of authenticity is in the record, that's a problem for the proponent, not really for the defendant because you agree that the legal question of whether this was sufficiently authentic for a jury to even see it [00:11:29] Speaker 04: was met. [00:11:29] Speaker 04: And so I just I'm having trouble understanding what more could have happened if they didn't think it was authentic that hurt the government, not you. [00:11:37] Speaker 04: And they were on the offense, you argued everything that you would be nothing would change in your arguments. [00:11:43] Speaker 03: Right. [00:11:43] Speaker 03: Two responses, Your Honor. [00:11:45] Speaker 03: First, I think, you know, the fact that this there was sufficient evidence produced before a judge does not really say anything about whether there was sufficient evidence that the jury should have looked at it. [00:11:55] Speaker 03: I mean, I agree. [00:11:57] Speaker 04: Just to be clear, it should have looked at it because if you think about this kind of analogous to the statutes kind of [00:12:03] Speaker 04: And now just to doubt fair process. [00:12:05] Speaker 04: First, you have to have her Dover. [00:12:07] Speaker 04: I don't know how to pronounce it. [00:12:08] Speaker 04: But first, the judge makes a cut at whether this is even sufficient as a matter of law that it can go before a jury. [00:12:16] Speaker 04: And then it goes over the jury and everybody argues all they want about whether you should credit it or not and whether this person is reliable or not. [00:12:24] Speaker 04: And I don't know that the authenticity arguments that you're talking about are any different than you should credit or not. [00:12:30] Speaker 04: This is credible and something you should rely on as a jury. [00:12:36] Speaker 03: Right, but the function of rule 104B is as a gatekeeping function. [00:12:40] Speaker 03: And the idea is to say- You haven't challenged the district courts. [00:12:44] Speaker 04: I haven't read you to challenge the district court's decision that this gets through the gate. [00:12:49] Speaker 03: That is what I'm challenging. [00:12:51] Speaker 03: That is what I'm challenging in that the district court did not actually assess the evidence that went before the jury. [00:12:57] Speaker 03: The district court assessed the evidence that went before itself and determined that that that met the threshold that you that what the district court to be determined. [00:13:05] Speaker 04: It is the gatekeeping function when it meets that statutory threshold, it is [00:13:09] Speaker 04: eligible to go before a jury. [00:13:10] Speaker 04: And then you all have added on whether it should be convicted. [00:13:15] Speaker 03: To analogize, this is analogous to insufficient evidence, period, for conviction. [00:13:20] Speaker 03: It would not be enough for the judge to say in a pretrial hearing, oh, hey, government, this does seem like enough to convict. [00:13:25] Speaker 03: You do get to proceed with this trial. [00:13:28] Speaker 03: And then to have the government not introduce that evidence to the jury and then just say to the jury, well, he's definitely guilty. [00:13:34] Speaker 03: Here's one piece of evidence you should convict. [00:13:36] Speaker 03: If the jury then convicts, you can't look at that and say, well, it wasn't prejudicial because the defense had the opportunity to say, hey, that wasn't enough evidence. [00:13:43] Speaker 03: The bottom line is there's a legal threshold about what sufficient evidence needs to be produced to the jury. [00:13:49] Speaker 03: If that threshold is not met, there is prejudice. [00:13:52] Speaker 03: There's a problem. [00:13:53] Speaker 03: It's not enough to just be able to argue about it. [00:13:55] Speaker 03: Here, the purpose of rule 104B is to ensure that evidence is not put before the jury. [00:14:00] Speaker 03: That could be highly prejudicial when there really is no legal basis to tell the jury that this is, in fact, what it is. [00:14:05] Speaker 03: There is a risk that the jury will nonetheless say, yeah, this looks really, I mean, this is black and white. [00:14:11] Speaker 03: This has specific seconds and cell towers and tons of phone numbers. [00:14:16] Speaker 03: This looks really reliable, and we are going to credit this. [00:14:19] Speaker 03: You need to have, because of that worry, [00:14:22] Speaker 03: That's why the judge serves its gatekeeping function, and it's not serving a gatekeeping function if it's looking at evidence outside the presence of the jury that the jury never sees. [00:14:31] Speaker 03: The gatekeeping function is to make sure that the evidence before the jury gives the jury a sufficient basis to draw the inference that this piece of evidence is in fact the government claims. [00:14:41] Speaker 01: The jury can't, I mean, the judge can't perform that second level of gatekeeping that you want until after the fact, right? [00:14:55] Speaker 02: You're right, so you can do it two ways. [00:14:58] Speaker 01: So really what you're complaining about is the fail, not the conditional admission of the evidence, [00:15:09] Speaker 01: but the fact that the district court didn't later grant a motion to strike. [00:15:15] Speaker 02: No, that's not correct. [00:15:17] Speaker 01: Under rule 104, or actually, I can't remember the exact rule, but the judge has to- The judge made the authentication, the front-end gatekeeping through the certification, and you don't contest that. [00:15:31] Speaker 01: And then he admits the evidence subject to the [00:15:38] Speaker 01: authentication predicates being established through evidence. [00:15:42] Speaker 01: He says you have to you have to re authenticate before the jury. [00:15:46] Speaker 03: Well, that's the case that he doesn't do. [00:15:48] Speaker 03: He doesn't say, okay, so at a pretrial hearing, it's correct that the judge can look at the evidence and say, yes, this would meet the threshold. [00:15:57] Speaker 03: If you introduce this evidence, yes, I will allow this to be admitted before the jury. [00:16:02] Speaker 03: Another way to do it is to say at trial when the government makes its proffer, yes, I am admitting this subject to connection up later. [00:16:10] Speaker 03: Those are the two ways, but in either case, [00:16:14] Speaker 03: the government actually does have to produce that proof later. [00:16:17] Speaker 03: And that's the problem here. [00:16:19] Speaker 03: The government never did that. [00:16:20] Speaker 03: And the judge did not say that it had to. [00:16:22] Speaker 03: Just to be clear, when the judge admitted these records, the judge said, I am admitting these because of the pretrial presentation you made. [00:16:30] Speaker 03: There was no subject to connection up. [00:16:33] Speaker 03: There was no further burden on the government to authenticate. [00:16:37] Speaker 03: And in fact, the government was quite clear. [00:16:38] Speaker 03: It was not trying to authenticate these records. [00:16:41] Speaker 03: So that is the problem that we're complaining about. [00:16:44] Speaker 04: And it seems to me that when you talk about sufficiency of the evidence here, it's not so much just a freestanding sufficiency evidence because you have to tie it to counts for which he was convicted. [00:17:00] Speaker 04: So it seems to me at the end of the day, what you need to show is even if we assume there wasn't even we assume there wasn't sufficient evidence, do we have a showing of prejudice as to [00:17:13] Speaker 04: the four counts on which he was convicted, not the other ones, but the four counts on which he was convicted. [00:17:20] Speaker 04: And it seemed to me that there was other evidence, testimonial evidence connecting him for the purposes of the conspiracy counts and for purposes of 1363 that, you know, he was, his interactions with people, testimony about his interactions with people, video evidence of him there at the same [00:17:43] Speaker 04: Was it prejudicial? [00:17:44] Speaker 04: Was it prejudicial? [00:17:46] Speaker 03: Yes. [00:17:48] Speaker 03: I'm sure you're surprised to hear my answer. [00:17:50] Speaker 03: Yes. [00:17:51] Speaker 03: And the government has the burden to show harmlessness here. [00:17:54] Speaker 03: It was prejudicial. [00:17:55] Speaker 03: Yes, the jury acquitted on 14 counts and convicted on four. [00:18:00] Speaker 03: But this was extremely prejudicial or extremely inculpatory evidence that went to all of the counts. [00:18:05] Speaker 03: This was not independent and it did not only go [00:18:08] Speaker 03: to the acquitted counts, and it was highly relevant to the convicted counts because it showed that Mr. Katala had connections to the people that he supposedly conspired with. [00:18:19] Speaker 03: You alluded to video. [00:18:21] Speaker 03: Yes, there was video. [00:18:22] Speaker 03: There was some dispute about whether Mr. Katala was really in those videos, but at most those videos showed Mr. Katala was present at the mission. [00:18:30] Speaker 03: And that's what distinguishes the second part of the attack from the other parts of the attack. [00:18:34] Speaker 03: There was video at least showing that he was there. [00:18:36] Speaker 03: So yes, there was more evidence that Mr. Katala was involved in the second parts of the attack. [00:18:41] Speaker 03: But still, Mr. Katala did not injure any building himself. [00:18:44] Speaker 03: There's no video of him breaking down a door or setting a fire. [00:18:51] Speaker 03: And so the way that the government made its case was to say, well, look, he's connected to all these people who did do those things. [00:18:57] Speaker 03: And a key way that the government did that, as you can see from our brief, is just over and over again, point to these phone records. [00:19:04] Speaker 03: And the government in its brief says, well, most of those phone records are really about other counts. [00:19:11] Speaker 03: I think that that's true most, but there was an extraordinary amount still about these calls, or sorry, about this time. [00:19:17] Speaker 03: I think on A669 of our appendix, there's a lengthy [00:19:22] Speaker 03: I think two paragraphs about how there's 16 calls between Mr Katala between 1020 and and the second wave of the attack where he's talking to know all of his compatriots, there's an 18 minute call with Ali mom, who, which was right before the attacks I mean, [00:19:38] Speaker 03: There's just no way that the government can say we definitely would have prevailed, you know, even absent these, these, these phone records that are quote unquote phone records. [00:19:49] Speaker 03: And, you know, I think you can see that to some extent from the, the acquittals, and the fact that the jury did not find this case to be overwhelming. [00:19:57] Speaker 03: um is is really something and says how much these phone records must have mattered for uh for the the convicted counts because the only other thing that you have is basically the video um and and you know if you know if if that standing alone that the video is obviously not enough so they the jury must have tied this together with these other records my colleagues don't have more questions on this issue did you want to turn to another issue [00:20:27] Speaker 03: Yes, thank you. [00:20:32] Speaker 03: Following the Supreme Court's decision in Davis, it's now clear that Mr. Katala's conviction for carrying a gun in connection with the crime of violence can't stand. [00:20:40] Speaker 03: There's insufficient evidence that he committed a crime of violence. [00:20:44] Speaker 03: The only crime of violence that the government defends is his conviction under 1363. [00:20:48] Speaker 03: The jury was instructed that Mr. Katala could be convicted for either conspiring to injure a building [00:20:55] Speaker 03: or injuring a building. [00:20:56] Speaker 03: And everyone now agrees that conspiring to injure a building is not enough. [00:21:00] Speaker 03: Mr. Katala is entitled to acquittal. [00:21:07] Speaker 05: Mr. Katala did not challenge his 924C conviction on the same argument that you are raising here with respect to conspiracy. [00:21:16] Speaker 05: Isn't that correct? [00:21:17] Speaker 05: So don't we review that under plain error? [00:21:21] Speaker 03: Mr. Katala made a generally stated motion for judgment of acquittal at the close of the government's case and then at the end of trial and under the circuit's precedent, making a motion, a general motion like that suffices to preserve all challenges to the sufficiency of the evidence. [00:21:37] Speaker 03: And the government doesn't disagree, it doesn't dispute that this is reviewed de novo. [00:21:43] Speaker 01: The fact that Mr. Katala also made a more specific- Sorry, go ahead, I'm sorry. [00:21:47] Speaker 03: The fact that the government, or sorry, that Mr. Katala also made a separate motion for a judgment of acquittal and raised specific grounds doesn't change the fact that he separately made a general motion that does suffice to preserve also. [00:22:00] Speaker 05: And does the general motion suffice? [00:22:02] Speaker 05: I mean, so then is there no forfeiture so long as a defendant raises a general argument about, you know, makes a general motion for acquittal? [00:22:13] Speaker 05: I mean, are there no issues that can be forfeited then? [00:22:17] Speaker 05: under that? [00:22:18] Speaker 03: This is only for sufficiency of the evidence, but that is my understanding of circuit precedent. [00:22:21] Speaker 03: This court has said again and again and again, generally stated motion for a judgment of acquittal preserves all challenges to the sufficiency of the evidence. [00:22:28] Speaker 03: And again, even if the court wanted to make an exception in certain cases, this isn't the case to do that because the government doesn't dispute that he preserved this claim. [00:22:38] Speaker 01: Is this really a sufficiency argument though? [00:22:42] Speaker 01: I mean, suppose I think the following. [00:22:47] Speaker 01: that the substantive offense is a crime of violence. [00:22:53] Speaker 01: The conspiracy offense is not a crime of violence. [00:22:59] Speaker 01: The statute is divisible between the substantive and the conspiracy offense. [00:23:08] Speaker 01: There's more than sufficient evidence to support a conviction [00:23:15] Speaker 01: on the substantive offense. [00:23:18] Speaker 01: And the problem here is that the instructional error makes it arguably hard or impossible to figure out whether he was validly convicted of the substantive offense or invalidly convicted of the conspiracy offense. [00:23:40] Speaker 01: If that's what I think about all those issues, this is not a sufficiency problem. [00:23:44] Speaker 01: This is an instructional error problem. [00:23:47] Speaker 03: Just to clarify, when you're talking about instructional error, are you talking about the instructional error that we point to saying counts one to 17 are crimes of, sorry, three to 17 are crimes of violence? [00:23:56] Speaker 03: Or are you talking about the quote unquote instructional error about conspiring to injure a building versus injuring a building? [00:24:04] Speaker 01: Yeah, I think I'm talking about the second one [00:24:09] Speaker 01: because my framing was designed to eliminate the first one by saying, I think it's divisible into one crime that is the substantive offense, which is a crime of violence and the conspiracy offense, which is not. [00:24:27] Speaker 03: Right, I would say there is no instructional error with that second piece. [00:24:32] Speaker 03: It was not error to, or Mr. Katala is not complaining of any error in that second instruction. [00:24:38] Speaker 03: That instruction coheres with the law, the statute is written. [00:24:42] Speaker 03: The reason that that instruction creates difficulty for the crime of violence conviction. [00:24:47] Speaker 03: So sorry, just to step back also, the instruction we're talking about is the instruction on count 16. [00:24:52] Speaker 03: And this count, this challenge is to count. [00:24:55] Speaker 01: So maybe you're right that [00:24:58] Speaker 01: Both instructions that you mention are on the table. [00:25:06] Speaker 03: Well, we are raising a separate challenge to the instructional error that counts, I think it's counts one through 17 are crimes of violence. [00:25:15] Speaker 03: But on the sufficiency piece, what the government is saying is that we're really complaining about the instructional error that you were just pointing to at 1363 on count 16 about conspiring versus actually doing the injuring. [00:25:30] Speaker 03: And like I was saying, I don't think that that is an instructional error. [00:25:33] Speaker 03: We're not complaining about that. [00:25:35] Speaker 03: That is just under the Supreme Court's decision in Mathis. [00:25:39] Speaker 03: That is what creates the legal lack of certainty. [00:25:43] Speaker 03: That means that we can't ascertain what Mr. Katala was in fact convicted of doing. [00:25:48] Speaker 03: And that's just what the categorical approach is. [00:25:51] Speaker 03: I don't think that changes this from a sufficiency challenge to an instructional challenge. [00:25:56] Speaker 03: That's just a product of the categorical approach. [00:25:59] Speaker 01: So let me just amend my framing a little bit to account for one good point that you made. [00:26:06] Speaker 01: So let's say then there is an instructional error in categorically defining [00:26:17] Speaker 01: the offense described in count 16 as a crime of violence in a case where the government charged both conspiracy and the substantive offense. [00:26:29] Speaker 01: But that's still an instructional error as opposed to an argument that there wasn't legally sufficient evidence to support the conviction on count 16. [00:26:42] Speaker 03: Well, to clarify, we are also raising an instructional error claim, which you're basically well summarizing. [00:26:52] Speaker 03: The reason I don't think that or I don't think that that means that this is not a legal insufficiency challenge. [00:26:57] Speaker 03: The point is that Mr. Katala was convicted of, under the modified categorical approach, we cannot determine, and this is assuming the modified categorical approach even applies, we cannot determine whether it was conspiracy or actually doing the injury. [00:27:13] Speaker 03: And so there is not sufficient evidence to say that he was convicted of a crime of violence. [00:27:19] Speaker 01: I guess I don't see that as a sufficiency [00:27:26] Speaker 01: argument. [00:27:27] Speaker 03: Maybe I could put it a different way. [00:27:30] Speaker 03: The crime of which he was convicted was conspiring or injuring a building. [00:27:37] Speaker 03: That is a crime of conviction. [00:27:39] Speaker 03: That is not a crime of violence. [00:27:40] Speaker 03: Therefore, there is insufficient evidence of carrying a gun in connection with a crime of violence under Count 18. [00:27:48] Speaker 03: Under the modified categorical approach, the only thing we can say about Count 16 or about his conviction is that he [00:27:55] Speaker 03: carry he injured or conspired to injure a building. [00:28:01] Speaker 01: And since that is not a crime unless unless we can unpack through the modified categorical inquiry, unless we can unpack things and say the jury must have convicted on the substantive offense. [00:28:18] Speaker 03: That's correct with one caveat. [00:28:20] Speaker 03: I agree that if you believe that the modified categorical approach applies and that you believe there is sufficient legal certainty to determine that Mr. Katala was convicted of injuring a building rather than conspiring, then that's a problem for us. [00:28:34] Speaker 03: But the Supreme Court has been very clear that the court's role is not to determine whether it's most likely or very likely or even actually almost certain that Mr. Katala is convicted of actually injuring a building. [00:28:46] Speaker 03: The question is, as a legal matter, looking at the indictment, looking at the jury instructions, what can you be legally certain that he was necessarily convicted of? [00:28:54] Speaker 03: And there is no such legal certainty here. [00:28:58] Speaker 01: I understand that's your argument. [00:29:01] Speaker 01: I wasn't meaning to pre-dermit it. [00:29:04] Speaker 01: I guess this was all the jumping off point for all of this was just [00:29:09] Speaker 01: your response to Judge Rao that you get a de novo shot at all of these issues just because you filed an acquittal motion invoking sufficiency. [00:29:20] Speaker 01: That's what I'm skeptical of. [00:29:23] Speaker 01: I understand your argument about this is too hard to unpack and you can elaborate on that as much as you like. [00:29:31] Speaker 03: Well, the other thing I'll say in response to your concern and Judge Rao's concern is just that the government, again, doesn't contest this. [00:29:37] Speaker 03: So they don't contest that this is a proper legal sufficiency argument, and they don't contest the standard of review. [00:29:43] Speaker 03: There's de novo here. [00:29:45] Speaker 04: And so even as to the jury instructions issue, the law changed, right? [00:29:52] Speaker 04: The law was one thing at the time the jury in this circuit was one thing at the time the jury instructions were submitted. [00:29:58] Speaker 04: That's right. [00:29:58] Speaker 04: We agree to them. [00:29:59] Speaker 04: And I think we've pretty much [00:30:02] Speaker 04: recognize repeatedly that it's not considered a forfeiture in that context or confided error or whatever one wants to label it when the law at the level of Supreme Court has changed in the interim. [00:30:15] Speaker 03: Right. [00:30:17] Speaker 03: The government's argument is that this is invited error on the instructional piece because we proposed jury instructions together with the government about this, about how counts one through 17 are crimes of violence. [00:30:28] Speaker 03: But like you said, Judge, the law radically changed. [00:30:31] Speaker 03: It went from binding circuit precedent saying a residual clause is valid to very direct Supreme Court precedent saying it's not valid. [00:30:40] Speaker 04: And so- Well, and saying that conspiracy was a crime of violence. [00:30:44] Speaker 04: I'm or indicate. [00:30:47] Speaker 03: I am not sure that the Supreme Court has resolved the conspiracy piece. [00:30:52] Speaker 03: But the government does not contest. [00:30:53] Speaker 03: And I think every circuit agrees now. [00:30:55] Speaker 03: I'm not sure if this circuit, I don't think this circuit has taken a position yet. [00:30:59] Speaker 03: That's fair. [00:31:02] Speaker 04: But the government itself agrees. [00:31:04] Speaker 03: The government itself agrees. [00:31:05] Speaker 03: It's general stated. [00:31:06] Speaker 03: I think it's, and I don't see any legal argument about how a conspiracy could be sufficient at this stage. [00:31:15] Speaker 03: So that, you know, the Third Circuit and the Tenth Circuit have both recognized that invited error doctrine is not applicable in those circumstances because really what is the defendant supposed to do? [00:31:26] Speaker 03: I mean, the defendant couldn't say, I won't agree to this instruction because it's what binding circuit law requires. [00:31:34] Speaker 01: Invited error might not apply, but I'm not sure we've said plain error doesn't apply. [00:31:44] Speaker 03: I think you are right about that. [00:31:46] Speaker 03: And we're not saying that we don't have to meet the plain error standard. [00:31:52] Speaker 05: If you just say, maybe briefly, why you think there would be prejudice here if we thought the plain error standard was the applicable one? [00:32:02] Speaker 02: Sorry, actually, let me just. [00:32:10] Speaker 03: I'm so sorry. [00:32:10] Speaker 03: I just want to make sure I didn't say something. [00:32:29] Speaker 03: Okay, no, I didn't. [00:32:31] Speaker 03: We agree that. [00:32:32] Speaker 03: I'm sorry, you asked about prejudice? [00:32:35] Speaker 05: Right. [00:32:36] Speaker 03: Well, I think it is clear now that conspiracy is not a crime of violence, and so it certainly would have affected the outcome of the proceedings. [00:32:50] Speaker 05: Well, I think, I mean, isn't it Mr. Katala's burden to show that there's a reasonable probability that the outcome would be different? [00:33:01] Speaker 03: As a matter of law, yes, that's correct. [00:33:03] Speaker 03: And as a matter of law, because count 16, again, assuming the modified categorical approach does apply, and there's still a lack of legal certainty to say whether he was convicted of conspiring or injuring a building. [00:33:14] Speaker 03: And so, for that reason, we can't say that that was a crime or violence. [00:33:19] Speaker 03: So correctly instructed, the jury would not have, or there's certainly a reasonable probability that the jury would not have [00:33:26] Speaker 03: convicted on this count. [00:33:28] Speaker 05: And then just to back up for a second, I click the instructed it's quite possible that the jury would have convicted on the substantive crime of 1363. [00:33:37] Speaker 03: And again, we're not challenging the [00:33:42] Speaker 03: the instruction on 1363, whether it was conspiring or actually injuring a building. [00:33:46] Speaker 03: I don't see that as part of the inquiry. [00:33:50] Speaker 03: It's not that if they were instructed only that they had to find that he actually injured a building, would they have convicted? [00:33:58] Speaker 03: I think the question is, if they were correctly instructed that count 16 isn't inherently a crime or violence, and if we're applying the correct law, which says that [00:34:06] Speaker 03: you know count 16 is not a crime of violence because he was in fact convicted of either conspiring or injuring a building then that shows a reasonable probability that the outcome would have been different and then just to also clarify it's not our job to show that there's no reasonable probability that some other outcome wouldn't have happened it's just that or that the same outcome wouldn't have happened it's our it's our burden to show that a different outcome could have happened i think we go well beyond that here because you know [00:34:32] Speaker 03: If count 16 is in fact not a crime of violence as a matter of law, which is what we're saying, given what his count 16 conviction actually was, then sort of by definition, the jury couldn't have convicted on count 18 because the government isn't even defending count 18 on the basis of count one or count two being a crime of violence. [00:34:52] Speaker 04: What is your, sorry, I just want to make sure I'm keeping things straight here. [00:34:56] Speaker 04: The requirement of, in this context of legal certainty, [00:35:00] Speaker 04: As to what the jury did, how does it intersect with our plan error, does it heighten or do that reduce your burden to show prejudice. [00:35:10] Speaker 04: When we're doing the doctor under we just have to keep those things separate i'm trying to figure out how they might interact here. [00:35:15] Speaker 03: Um, I, so the legal certainty question is, is more, I think about count 16 and what does count, what does the conviction of count on count 16 mean? [00:35:25] Speaker 03: Um, and so I don't know that that intersects directly with the plain error standard, which I think, um, well, let me think about your question more. [00:35:35] Speaker 04: Um, which just seems odd if we have to find legal certainty, but then if we say we're in a plain error lamb and we can do, [00:35:45] Speaker 04: um more generous reading of the record than we could under legal certainty standard yet what we have to do here is find whether he was convicted of an actual crime of violence are we legally certain that he was committed by an actual crime of violence by the jury um and does that does that does that requirement of legal certain is there any case that says that requirement of legal certainty that i think is about the highest standard you could have um diminishes [00:36:16] Speaker 04: in a plain error context, because we still have to find that crime or violence. [00:36:20] Speaker 03: I haven't seen any such case. [00:36:23] Speaker 03: But I think it's possible that those things do intersect to some. [00:36:30] Speaker 04: Because it's just, I mean, the jury instructions at issue here were also submitted by the government. [00:36:34] Speaker 04: So at a minimum, you guys are both in the same boat on any problems on the jury instructions. [00:36:40] Speaker 04: So I think that's a lot. [00:36:41] Speaker 04: I mean, the jury instruction defined it as a single element, whether you [00:36:45] Speaker 04: substantively destroy or injure or attempt or a better conspiracy was expressly defined by the jury structures as a sink the first element of 1363. [00:36:56] Speaker 04: And you know, that was as much of the government's instruction is yours. [00:37:02] Speaker 04: So how we allocate any concerns now about what that instruction if we think that they should be should have been defined as two separate [00:37:14] Speaker 04: crimes, two separate elements, at least, to be found, alternative elements to have been found. [00:37:19] Speaker 04: And I'm just having trouble mapping that onto the linear standard. [00:37:26] Speaker 04: Well, I completely agree with the government. [00:37:28] Speaker 03: I'm sorry. [00:37:29] Speaker 04: I mean, I assume that's why you don't challenge that instruction, right? [00:37:32] Speaker 04: Because you think it's not a divisible statute. [00:37:36] Speaker 04: But I think that has created a lot of confusion about what the jury did as to the 1363 conviction. [00:37:42] Speaker 03: Even if it were divisible, we're not seeing it's a an error I mean I agree I completely agree that the government had equal responsibility for proposing it and so it's a little strange for them to be saying we can't complain about it. [00:37:56] Speaker 03: But, but I guess setting that aside, it's not it's not that it was incorrect or we're seeing that there's. [00:38:01] Speaker 03: there's a legal problem with having instructed the jury that way. [00:38:04] Speaker 03: It's just that as a natural consequence or a necessary legal consequence of that, we cannot say that the conviction is for conspiring and injuring rather than one or the other, to the extent the statute is divisible. [00:38:19] Speaker 03: And so there is no legal certainty. [00:38:21] Speaker 03: And so applying the plain error standard on top of that, the question is, [00:38:24] Speaker 03: Basically, is it clear that this is not a crime of violence? [00:38:28] Speaker 03: And I would say it's extremely clear. [00:38:29] Speaker 03: I mean, conspiracy does not have as an element. [00:38:33] Speaker 03: And again, the government doesn't dispute this. [00:38:34] Speaker 03: So I don't think the government is disputing this aspect of plain error. [00:38:38] Speaker 03: The conspiracy does not have a use of force element or attempted or threatened use of force. [00:38:44] Speaker 03: And so it's simply not a crime of violence. [00:38:51] Speaker 03: Would it make sense for me to move on to the next issue? [00:38:54] Speaker 04: Yes, unless my colleagues have other questions. [00:39:01] Speaker 04: And which issues you want to talk about are entirely within your discretion. [00:39:04] Speaker 04: If we want to talk about something you don't want to, then I don't want you to feel like you have to march through everything for our sake. [00:39:09] Speaker ?: Okay. [00:39:09] Speaker 03: Thank you. [00:39:09] Speaker 03: I would like to do four in total. [00:39:12] Speaker 03: This one is the issue four in our brief. [00:39:15] Speaker 03: Mr. Katala's 1363 conviction, and that's count 16, is invalid because there was no evidence that the offense was committed against an American. [00:39:25] Speaker 03: This is a property crime, so it's not the kind of crime that's committed against a person at all. [00:39:30] Speaker 03: And regardless, the jury was not told about this element. [00:39:35] Speaker 03: the court should order acquittal or vacature and it should do the same for all of the remaining counts. [00:39:42] Speaker 04: Do you argue that if the jury found that someone's wellbeing was put into jeopardy as a result of this attack, was there anything in the record that showed that there was anybody other than American [00:40:03] Speaker 04: whose life was imperiled with this attack? [00:40:06] Speaker 03: Yes. [00:40:07] Speaker 03: So, I mean, there are many Libyans on the Mission and the Mission property. [00:40:12] Speaker 03: So there's the February 17 guards. [00:40:15] Speaker 03: There are, of course, other attackers. [00:40:18] Speaker 04: There are... Is there any evidence in the record? [00:40:21] Speaker 04: Did you as a defense introduce any evidence into the record that any of their lives were at any time imperiled? [00:40:27] Speaker 03: I think that the idea would is the same for everyone else who was not well sorry, let me just back up and say to the jury verdicts make clear that you know Mr tall is not convicted for putting the lives of officers of the four Americans who perish in this attack and danger because he was acquitted of those murders. [00:40:47] Speaker 04: And so we're talking about the jury said he didn't it didn't result in death that's not the same thing as same lies in peril isn't. [00:40:53] Speaker 03: Well, you know, basically the question I think would be, did he have anything to do with the fires that cause their deaths and they were put in danger in the same way that they were ultimately killed there. [00:41:04] Speaker 03: But, so I, so I don't think that he was responsible for them. [00:41:07] Speaker 03: So, but but just to back up the, you know, [00:41:11] Speaker 03: attackers stormed the compound, fires were set, guns were fired, and so I think lies were put in danger if you hold Mr. Katala responsible for, you know. [00:41:24] Speaker 04: But we're talking about, I think you were talking about in section 7-9, the sort of jurisdictional element, and that doesn't even require, it just says there has to be an offense committed against [00:41:35] Speaker 04: a national of the United States, right? [00:41:38] Speaker 04: That wouldn't have to be actually the death or imperil in death, right? [00:41:45] Speaker 03: Yes, I'm sorry. [00:41:45] Speaker 03: I'm just trying to explain what I understand the verdict to mean. [00:41:50] Speaker 03: But yes, 1363, he was convicted of injuring or conspiring to injure a dwelling and putting lives in danger for injuring a dwelling. [00:41:59] Speaker 03: And we are fighting to some extent on what there's evidence of. [00:42:04] Speaker 03: And you're asking, well, were other people's lives put in danger? [00:42:07] Speaker 03: And I would say there's evidence, you know, to the extent that you, that anyone's life in danger, it would have similarly been either other attackers or- I apologize, I didn't phrase it properly. [00:42:21] Speaker 04: Is there any evidence in the record that there was an offense against, an offense was committed against anyone who was not an American? [00:42:31] Speaker 03: I mean, I would say that I don't think there is evidence in the record that Mr. Katala committed an offense against any person at all, because these are property crimes that he was convicted of. [00:42:42] Speaker 04: These are crimes that are committed against property, and it doesn't really- Well, not property crime, because the jury also found the enhanced responsibility for either attacking a dwelling or putting a person's life in jeopardy, or putting a person in jeopardy, sorry. [00:42:57] Speaker 03: And well, and even under, you know, I guess two things, Your Honor. [00:43:01] Speaker 03: Number one, to be said, it's about a dwelling. [00:43:03] Speaker 03: I don't think that that is against a person. [00:43:05] Speaker 03: I mean, if the fact that someone sleeps in a building doesn't make it a property crime against that building, against a person, I just don't think that, you know, I don't think we would say Mr. Katala injured a building against a U.S. [00:43:18] Speaker 03: national. [00:43:19] Speaker 03: It doesn't really make sense linguistically. [00:43:21] Speaker 04: Somebody blows my house when I'm not there. [00:43:23] Speaker 04: Is that not an offense against me? [00:43:26] Speaker 03: I don't think so. [00:43:26] Speaker 03: I mean, I don't, I think, but if you but if you disagree, we still very offended. [00:43:34] Speaker 03: I just don't think that that's how Congress was looking at this statute, I would, I think it raises a host of questions about what it means to be against a person. [00:43:42] Speaker 03: you know, you'd have to really parse the record to see and make all sorts of determinations, it would be quite, I think, difficult to administer about when an offense, a property offense, is against a person. [00:43:51] Speaker 04: So I guess the jury didn't find she caused death. [00:43:55] Speaker 04: On the other hand, it did find either this dwelling or this, you know, person in jeopardy was met. [00:44:02] Speaker 04: So we have to, and so my question is, as to what the jury did find, [00:44:10] Speaker 04: on dwelling or putting somebody in jeopardy through an offense against them for purposes of section seven, against whom else were offenses committed? [00:44:25] Speaker 03: Well, like I said, I think there were offenses. [00:44:29] Speaker 04: On his first counts, one and two. [00:44:33] Speaker 03: It, well, okay, I think it's possible to the extent the jury found it was, lies are put in danger. [00:44:38] Speaker 03: It easily could have been Libyan lies. [00:44:40] Speaker 03: Like I said, there were blue mountain guards around. [00:44:43] Speaker 03: There were February 17th guards around. [00:44:45] Speaker 03: And then to the extent it was about a dwelling, I think that even the government is not disputing that that is not against a person. [00:44:50] Speaker 03: It is against simply a building. [00:44:52] Speaker 03: It is not against a person. [00:44:53] Speaker 03: So it sounds like maybe I should turn to the instructional piece of this, which is that even if you disagree that an offense [00:45:02] Speaker 03: under the statute, which again, is about buildings and entering buildings. [00:45:05] Speaker 03: The focus is all about buildings. [00:45:07] Speaker 04: If you think that that is an offense that actually- It doesn't focus all about buildings for purposes of this case where you have the enhancement provision, right? [00:45:16] Speaker 04: It just doesn't seem fair to me to say that this is only about buildings when there was also a finding that either a dwelling was attacked or a person was put in jeopardy. [00:45:30] Speaker 05: In that case, your honor- [00:45:32] Speaker 05: I mean, to Judge Millett's point, it's not just a building. [00:45:35] Speaker 05: It says, for destroying a building, if the building be a dwelling, right? [00:45:40] Speaker 05: So you can't just revert to the fact that it was a building. [00:45:44] Speaker 05: There has to be, you know, the statute makes clear that a dwelling is some particular type of building, right? [00:45:50] Speaker 05: A building, you know, which in common law is defined as a place where a person lives. [00:45:56] Speaker 03: I agree, Your Honor, but I still think linguistically, it just sounds strange to say Mr. Catallo was convicted of injuring a dwelling against a U.S. [00:46:04] Speaker 03: national. [00:46:05] Speaker 03: I think you could certainly say that it harmed the U.S. [00:46:08] Speaker 03: national or it harmed the interests of U.S. [00:46:11] Speaker 03: nationals, but the fact that Agent Ubin slept in this building for a limited period of time, I don't think it makes that [00:46:19] Speaker 03: offense against Agent Ubin, who wasn't present at the time this offense was committed. [00:46:24] Speaker 03: But even assuming you disagree with me, you think this is an offense that can be committed against a person, the jury was not instructed about this element. [00:46:32] Speaker 03: And there is certainly a reasonable probability that if it had been, it would have found that this was not committed against Americans. [00:46:40] Speaker 03: As I explained in the brief, [00:46:43] Speaker 03: The jury's verdicts are best understood to mean that Mr. Katala joined this attack during only the second wave of the attack. [00:46:52] Speaker 03: That was, I think, around 1143 is when that second wave begins. [00:46:57] Speaker 03: And the Americans had all evacuated by that point. [00:46:59] Speaker 03: There are only Libyans on the premises. [00:47:03] Speaker 03: So there's certainly a lot of reason to think that the jury might have found that he did not commit that crime against Americans. [00:47:12] Speaker 04: When you say joined, do you mean that's when he personally appeared on the scene? [00:47:17] Speaker 03: Right, well, so I mean, to some extent this requires us parsing the jury's verdicts, right? [00:47:25] Speaker 04: I'm just asking, you meant in your theory that he wasn't there until you're calling the second wave. [00:47:29] Speaker 04: I don't know if everyone agrees on which wave or how many waves there were. [00:47:37] Speaker 04: But when you said, [00:47:39] Speaker 04: What you're saying about, they must have thought he was only on the scene for the, or only involved in the second wave. [00:47:48] Speaker 04: Are you saying that because that's when there was evidence that he was present? [00:47:53] Speaker 04: Because there's evidence that he was involved in the sense of [00:47:59] Speaker 04: trying to stop protective troops from coming in, you disputed, but trying to stop protective troops from coming in, testimony evidence, he was there, don't come in, don't you harm us during the first wave. [00:48:13] Speaker 04: I'm not gonna call it the first wave, during the time when Americans were still there. [00:48:19] Speaker 03: Yes, and to be clear, the reason I'm saying that he was convicted only of the second wave is because to reconcile the jury's verdicts with the facts, you would need to conclude what I said. [00:48:30] Speaker 03: You know, if he was really involved at 1020, [00:48:34] Speaker 03: then it's hard to see why he wouldn't be responsible for the deaths of Ambassador Stevens and Sean Smith. [00:48:42] Speaker 03: I mean, it's not entirely clear from the record, but they could well have been alive at that point. [00:48:46] Speaker 03: If he's stopping trucks from responding and telling people to stand down and not helping, the government argued to the jury, well, you know, these stand-down orders show that he let these people die. [00:48:55] Speaker 03: And as I explained in the brief, I also think that evidence is quite equivocal and certainly not something that the jury relied on. [00:49:03] Speaker 03: If the jury relied on this Bilal al-Ubidi's testimony, it absolutely would not have acquitted on any of these counts. [00:49:10] Speaker 03: I mean, Mr. Ubidi implicated Mr. Katala in all of these crimes. [00:49:15] Speaker 03: So I guess what I'm trying to say is that to understand the jury's verdicts, [00:49:19] Speaker 03: you would have to, or the best understanding of the jury's verdicts. [00:49:23] Speaker 03: And again, our burden is just to show that there's a reasonable probability that the verdicts would have been different on this count. [00:49:29] Speaker 03: But the best reading, I think, of the jury's verdicts is that they concluded that Mr. Catallo was not involved in that first wave because that's when all of these deaths occurred and they acquitted him. [00:49:38] Speaker 04: Well, they acquitted him as to count one and two, which are the material support counts. [00:49:42] Speaker 04: That's where they said it didn't result in death. [00:49:45] Speaker 03: Well, there are also accounts three, I believe three through 15 were all about these deaths. [00:49:50] Speaker 03: We're charging murder, attempted murder, destroying buildings that resulted in death. [00:49:55] Speaker 03: And they acquitted of all of those charges. [00:49:57] Speaker 03: So, you know, Mr. Katala was charged in multiple accounts for all of these murders and the jury. [00:50:03] Speaker 04: And again, they also, I guess, yeah. [00:50:05] Speaker 04: And we're all struggling with this, but we do have to, we also have, we have to give way. [00:50:08] Speaker 04: I get that, but we have to give way to the fact that they did find him guilty, placing life in jeopardy. [00:50:15] Speaker 03: Right. [00:50:17] Speaker 03: He they either found him guilty of that or dwelling I mean that they weren't instructed they need to be unanimous so like I said there was plenty of evidence in the record that the TOC was a dwelling and I'm like judge route just mentioned some agent who then slept there they introduced a map of the building to show you know this is his bedroom agent even testified this is my bedroom, here's where it was. [00:50:37] Speaker 03: And they certainly could have concluded it was a dwelling and that's not at all consistent inconsistent with the idea that Mr Katala was involved in that second wave when he appeared on video and when all these phone records showed he was having this 18 minute call with Ali mom and 16 calls between blah blah blah. [00:50:53] Speaker 03: And, and so, you know, there's certainly a reason to believe that. [00:50:57] Speaker 03: that that's what the jury determined, and that if the jury had been told, you need to find that this was against an American, they would have said no. [00:51:04] Speaker 03: You know, Americans are not there. [00:51:05] Speaker 03: No lives are placed in danger. [00:51:07] Speaker 03: And so we're not convicting on that count. [00:51:11] Speaker 04: Right. [00:51:12] Speaker 04: But again, for Section 7, it's not lives in danger. [00:51:15] Speaker 04: It's just that there's an offense against an American. [00:51:19] Speaker 03: Right, and my position is that if, if no Americans are present, then this is not an offense against an American and the government is not arguing. [00:51:27] Speaker 03: It remains an offense and against American simply because this was American property or it remains offense and offense against Americans simply because this is a dwelling that was, you know, previously occupied by an American, the government's argument is this is an offense against an American because the jury. [00:51:40] Speaker 03: probably found that lives were put in danger and those lives were probably Americans, American lives. [00:51:46] Speaker 03: And my position is there's definitely a reasonable possibility that that's not right. [00:51:51] Speaker 03: That's really hard to reconcile with the verdicts. [00:51:54] Speaker 01: Well, why is that? [00:51:55] Speaker 01: I mean, there's a lot of evidence that he was involved in planning the attacks. [00:52:06] Speaker 01: There's [00:52:08] Speaker 01: no evidence. [00:52:10] Speaker 01: There are different groups attacking the embassy at the same time, and he has his militia, and there's at least one other major militia there. [00:52:20] Speaker 01: And there's one big hole in the government's case, which is no one knows who inside the building set the fire that killed the ambassador. [00:52:32] Speaker 01: So the easy way to reconcile all of this is to say the jury found him involved in planning the attack, but they don't know whether his militia set the fire that killed the Americans. [00:52:48] Speaker 03: I think that's possible. [00:52:50] Speaker 03: I think that's unlikely, number one, for two reasons. [00:52:54] Speaker 03: Number one, the government never argued that, and neither did the defense. [00:52:57] Speaker 03: So nobody before the jury ever identified the theory that yes, even if Mr. Katala were involved in planning, like for the defense, the defense did not say, even if you find Mr. Katala was involved in planning and you credit this testimony by these Libyan cooperators, [00:53:14] Speaker 03: You should acquit him because, you know, we don't know who set this fire. [00:53:17] Speaker 03: No one ever identified that theory to the jury. [00:53:20] Speaker 01: So it's I think they're not going to be they're not going to be making conditional arguments about what happens in the event of a partial acquittal. [00:53:32] Speaker 01: They're going to be building their case piece by piece. [00:53:36] Speaker 01: And a lot of the pieces here are the [00:53:41] Speaker 01: conspiracy evidence before the attack ever happened. [00:53:45] Speaker 01: He's a leader of the militia and he's armed to the teeth. [00:53:50] Speaker 03: And he- So maybe a better way of putting what I said is that the government argued that basically regardless of who set the fires, Mr. Katala was responsible because he planned and coordinated with these people and the defense did not disagree with that. [00:54:02] Speaker 03: So, you know, we didn't say anything to suggest [00:54:06] Speaker 03: okay even if he was a member of this conspiracy with these people well there's this other militia over there that they you know that they might have set the fire so it'd just be very surprising for the jury to have come up with that on its own but you know you are correct that this this is actually a theory that Judge Cooper identified below as one possible reading of the verdict and so I'm not saying it's it's absolutely logically impossible but for the reason I gave I think it's unlikely and for a second reason which is that the jury also didn't have any basis to conclude that the damage to [00:54:36] Speaker 03: to the TOC, to the Tactical Operations Center, during the second wave of the attack was by Mr. Katala specifically. [00:54:44] Speaker 03: So, you know, why would they have convicted on any counts at all under that theory? [00:54:50] Speaker 03: I mean, no evidence was introduced that Mr. Katala or, you know, we don't know exactly what the jury thought, who the jury thought was in his conspiracy. [00:54:59] Speaker 03: But there's really no evidence about who destroyed the TOC or who destroyed what building. [00:55:09] Speaker 03: So I think we can't say for sure, or it's very hard to apply that theory consistently throughout. [00:55:15] Speaker 03: But again, even assuming you're right and this is a, I think it's a possible explanation, our burden is not to show that there is no reasonable possibility that the jury had a different. [00:55:26] Speaker 01: No, you're right. [00:55:27] Speaker 01: You're right. [00:55:29] Speaker 01: There are two possible explanations for this. [00:55:32] Speaker 01: One is the one I posited and Judge Cooper posited below. [00:55:38] Speaker 01: The other is yours, which is he's not involved in anything until he just happens upon the embassy around 1130 and decides on the spur of the moment to join the second wave of attacks. [00:55:55] Speaker 01: That's your [00:55:57] Speaker 03: I would say that the jury had a reason to separate out that second part of the attacks. [00:56:02] Speaker 01: Sorry, did or did or did not? [00:56:04] Speaker 03: Did have a reason to separate out that second wave of the attacks because there was video of that. [00:56:08] Speaker 03: And the jury just clearly discredited an extraordinary amount of the evidence that your theory relies on. [00:56:13] Speaker 03: So for example, the planning that relied on testimony of, for example, Bilal al-Bidi, who [00:56:24] Speaker 01: It relies on the cooperators, it relies on the phone records, it relies on the FBI testimony, and it relies on the video, which is that when he shows up, he doesn't just walk in, he has his AK-47, right? [00:56:44] Speaker 01: Which is a little hard to explain as he's just walking down the street and then gets caught up in the spur of the moment. [00:56:53] Speaker 03: Well, right. [00:56:54] Speaker 03: I mean, he said we don't know exactly what caused him to be downtown or to be at the embassy. [00:57:03] Speaker 03: But to respond to your earlier point, I think the people who, the Libyan cooperators who implicated Mr. Katala in the attack gave testimony that I think was clearly rejected by the jury. [00:57:17] Speaker 03: you know, one of the cooperators told the jury that Mr. Katala said, well, you know, if it hadn't been for, been Hamid, I think his name was, I would have, who's the person who helped with the annex get, helped the Americans get out from the annex and back to the airport. [00:57:35] Speaker 03: Well, if it hadn't been for him, I would have killed, you know, all of the Americans. [00:57:38] Speaker 03: I would have wanted to kill all the Americans. [00:57:40] Speaker 03: It's pretty hard to reconcile that with the fact that Mr. Katala was acquitted of all of the, [00:57:44] Speaker 03: Annex stuff. [00:57:45] Speaker 03: I mean, even if you think, you know, someone else might have started the fire at the mission. [00:57:52] Speaker 03: Well, the government's theory was still that he, that Mr. Katal is pre-planning and all of that. [00:57:57] Speaker 03: And the fact that he supposedly got mortars from Bilal al-Bidi showed that he was heavily involved in the annex. [00:58:04] Speaker 03: Well, the jury rejected that as well. [00:58:05] Speaker 01: So I think- But it's the same, it's the same problem as the annex, which is there are multiple attackers and [00:58:12] Speaker 01: there's nothing specifically tying that mortar to him just as [00:58:17] Speaker 01: there was nothing specifically tying the fire in the villa to his militia as opposed to the other militia that was there. [00:58:26] Speaker 03: Right, well, count 15 of the indictment charged Mr. Catallo with injuring a building at the annex. [00:58:31] Speaker 03: So not killing simply, but injuring a building and he was acquitted of that. [00:58:35] Speaker 03: So I think it's quite clear that the jury thought that Mr. Catallo was not involved at all in the annex because what would it mean to even be involved in that attack and not an injured building? [00:58:44] Speaker 03: Which again, I think is different with the mission attack [00:58:47] Speaker 03: because he was convicted of injuring a building there. [00:58:50] Speaker 03: So I think that, again, that's our narrative. [00:58:54] Speaker 01: That's fair. [00:58:55] Speaker 01: That's fair. [00:58:56] Speaker 01: There is more tension. [00:58:59] Speaker 01: There is some tension in the cooperators testimony vis-a-vis the annex that is not present. [00:59:08] Speaker 01: To me, the [00:59:09] Speaker 01: To me, the villa part just breaks cleanly because the cooperators don't testify to who set the fire inside the building. [00:59:18] Speaker 01: So the acquittals on the villa murders, to me, don't really undercut the cooperator's testimony. [00:59:29] Speaker 01: But you have a point about the annex. [00:59:32] Speaker 03: Well, and if the jury did not credit the testimony as to the annex which I believe all of the Libyan cooperators, you know, implicated Mr Catalan. [00:59:41] Speaker 03: There is no basis to believe that they that the jury credited these cooperators with respect to any of their testimony and in fact, the judge didn't credit these witnesses testimony for for large parts of their testimony I think the judge. [00:59:53] Speaker 03: seems to have wholly discredited Abdulaziz Khalid Abdulaziz testimony and acknowledge that you allow these testimony had enormous holes in it, for example, you know if you were to credit those telephone records and and say that they're correct. [01:00:08] Speaker 03: And, you know, and then there's a really pretty big tension between the law statement that he had this 10 minute call with Mr Katala, where Mr Katala did all these things and issue this stand down order which basically allowed a master students to die, because he was withholding aid or causing a to not arrive. [01:00:28] Speaker 03: Well, how could he have that conversation 37 seconds that's just such a substantial difference. [01:00:33] Speaker 03: So I think, you know, looking really closely at the jury at the record before the jury, there's just no way to be to say that there's not a reasonable chance at least that the jury would have would have concluded that this crime wasn't committed against an American because the Americans were gone at the time. [01:00:52] Speaker 03: If it makes sense, I'll move on to the last thing I'll talk about. [01:00:57] Speaker 03: So I wanted to talk about the prosecutorial misconduct here, which the government doesn't dispute occurred. [01:01:03] Speaker 03: So there's two kinds, both of which occurred during the government's rebuttal submission when Mr. Katala had no further opportunity to respond. [01:01:11] Speaker 03: First, the government deliberately inflamed the passions of the jury through its American son speech, our American son speech, even though the district court had specifically instructed the government not to say things like that. [01:01:23] Speaker 03: And then it attacked the reliability of defense stipulations as compared to live witness testimony, even though it knew that these stipulations were critical to the defense. [01:01:33] Speaker 03: And even though it knew that the defense was not able to present live witness testimony, even though it obviously would have preferred to because of the government's own classified designations. [01:01:44] Speaker 03: This misconduct was unfair and it prejudiced Mr. Catala's trial. [01:01:48] Speaker 04: Can you focus on the prejudice question? [01:01:51] Speaker 04: Because you said there seems to be no argument that this was completely improper and unprofessional conduct, not befitting the United States government by this prosecutor, especially after having already been told by the district court not to do it. [01:02:13] Speaker 04: But I think, alas, we have to turn to the prejudice. [01:02:19] Speaker 03: Well, I guess I would say several things. [01:02:22] Speaker 03: The government seems to point to four different things. [01:02:27] Speaker 03: Number one, about why this wasn't prejudicial. [01:02:30] Speaker 03: Number one, did this go to a central issue in the case? [01:02:33] Speaker 03: Well, yes, for sure. [01:02:34] Speaker 03: I mean, both of these things. [01:02:35] Speaker 03: The defense stipulations were about who did this. [01:02:40] Speaker 03: it certainly exculpates Mr. Catallo who's saying, I did not plan this. [01:02:44] Speaker 03: I was not involved in this attack to have other people be reported to the government as having done this. [01:02:53] Speaker 03: And I just want to really highlight how much more helpful it would have been for the defense to be able to present live witness testimony. [01:03:00] Speaker 03: I mean, to read a stipulation in 10 seconds or five seconds saying, a government agent has information that person one [01:03:10] Speaker 03: was involved in leading this attack is radically different from being able to put on a witness at trial and say, you know, what did you learn? [01:03:17] Speaker 03: Who told you this? [01:03:20] Speaker 03: You know, did you believe them? [01:03:22] Speaker 03: What did you do any research to, or, you know, and get to actually see, tell a story, introduce the evidence on your own terms. [01:03:31] Speaker 03: So starting out, there is a defense handicap here, a very significant one. [01:03:35] Speaker 03: And I'm not saying that that's improper because, you know, we have to live with these [01:03:38] Speaker 03: classified procedures. [01:03:40] Speaker 03: But the fact that the government exploited it, I think, is just really beyond the pale. [01:03:44] Speaker 03: And so to go back to the centrality of the issue and the fact that Mr. Kidala was, that other people supposedly led this attack and were involved in this attack is very important. [01:03:54] Speaker 03: And sorry, the other stipulations, much of the credibility of the Libyan witnesses. [01:04:00] Speaker 03: Which is obviously important in tying Mr. Gotala to- Sorry, I didn't hear the credibility of- The credibility of the Libyan cooperators. [01:04:07] Speaker 03: And that also, of course, went to all of the convicted counts as well as- Sorry, all of the convicted counts as well as the acquitted counts. [01:04:16] Speaker 03: The next issue, I will just- [01:04:26] Speaker 03: And the government also says that these are split verdicts, and therefore, there was no prejudice to Mr Katala, and it's true that the court has in small recognize that split verdicts can sometimes suggest that procedure on this conduct, you know didn't affect the jury, but I just don't think that that is applicable here because here I'm like in small. [01:04:47] Speaker 03: The prosecutor's comments were not isolated to a particular set of counts on which he was acquitted. [01:04:56] Speaker 03: I think in small, it wasn't necessarily entirely isolated, but it largely went to one of the convictions. [01:05:02] Speaker 03: And there was overwhelming independent evidence of the defendant's guilt with respect to the other count, and that's just not true here. [01:05:10] Speaker 03: So, I think, again, you know the evidence is very overlapping, the misconduct goes to the heart of everything. [01:05:16] Speaker 03: And I'm sorry I forgot to say on the centrality of the issue with respect to the inflaming of the passions the our government sons speech. [01:05:23] Speaker 03: And that obviously goes to everything as well you know this is a cry and Mr dollars accused of terrorism and creating an us versus them mentality. [01:05:32] Speaker 03: uh you know making it clear that the jury's duty is to convict this foreigner is is inflaming the passions of the jury and and certainly we can't say that that part of the reason the jury convicted is because they didn't want to let this guy go entirely free i mean maybe maybe honestly the best the best way to explain why the jury acquitted is uh is presumably because it discredited the vast majority of the evidence it could be that if it had been able to rationally assess the evidence without without uh this impassioned plea by the by the [01:06:02] Speaker 03: prosecutor, then maybe it would have acquitted on all counts. [01:06:06] Speaker 03: The judge's curative instructions, I think it's not that they were entirely unhelpful and the court has recognized that curative instructions can be helpful. [01:06:15] Speaker 03: But the court has also recognized that simply saying the arguments of counsel is not evidence is not enough. [01:06:22] Speaker 03: And the instruction that went to the stipulations wasn't really responsive to the problem. [01:06:29] Speaker 03: because the problem is elevating stipulations over live witness testimony and saying, well, if you had a live witness, then you would really, then you really know whether you can believe them, but these stipulations, you can't believe. [01:06:42] Speaker 03: So I think that that is very, it really did not cure the problem. [01:06:47] Speaker 03: It is not coming to me what the final factor is. [01:06:49] Speaker 03: So I will try to address that on rebuttal. [01:06:54] Speaker 04: Colleagues have any questions, any more questions for Mr. Kelly's opening argument? [01:07:01] Speaker 04: No, thank you. [01:07:02] Speaker 04: Thank you very much. [01:07:03] Speaker 04: We really appreciate your endurance and your presentation on those issues and that will let the government both respond and then raise its affirmative argument as to sentencing. [01:07:17] Speaker 06: Thank you, Your Honor. [01:07:18] Speaker 06: Good morning and may it please the court. [01:07:20] Speaker 06: My name is Dan Lenners and I represent the United States. [01:07:23] Speaker 06: If I might please reserve two minutes for rebuttal to address the government sentencing this appeal. [01:07:30] Speaker 06: I would appreciate the time. [01:07:32] Speaker 06: In fact, I would like to begin with that issue before we all run completely out of steam. [01:07:38] Speaker 06: The defendant is an unrepentant terrorist who participated [01:07:44] Speaker 06: in a world renowned terrorist attack on the US diplomatic facility during which four Americans were killed, one of whom was a sitting ambassador. [01:07:54] Speaker 06: The district court's extraordinary variance from a guideline sentence of life to a mere 12 year sentence on the terrorism related charges for which it had discretion was unacceptable and constituted a substantively unreasonable sentence. [01:08:14] Speaker 06: that the judge said that this would be an easy sentencing, but for the jury's acquittals. [01:08:20] Speaker 06: And in so, in focusing so much on the counts for which Catala was acquitted, the judge lost complete sight of the seriousness of the terrorist offenses for which he was convicted. [01:08:35] Speaker 04: Okay, but just to be crystal clear, you don't dispute the district court's authority to bury down [01:08:44] Speaker 04: to avoid taking account of acquitted conduct. [01:08:48] Speaker 04: And just to, I want to clarify another thing. [01:08:53] Speaker 04: I think in your briefs, both briefs on the cross appeal, you argued that backing out the acquitted conduct gets us a 30 to life sentencing range. [01:09:05] Speaker 04: Is that right? [01:09:06] Speaker 04: Yeah, sure. [01:09:08] Speaker 04: Okay. [01:09:08] Speaker 04: And so had the district court sentenced to [01:09:14] Speaker 04: that I'm going to back out the equity conduct that's sentenced to 30 years, and then you get the 10 additional years for the 924C count, if that were to stand, then you wouldn't have an argument about substantive unreasonableness? [01:09:33] Speaker 06: I don't think we wouldn't have an argument about substantive unreasonableness. [01:09:37] Speaker 06: We'd have a much more difficult argument about substantive unreasonableness. [01:09:41] Speaker 04: Well, if you agree that the district court can back out the acquitted conduct, and I didn't double check your calculations, I'm taking your brief at its word, that that creates a range. [01:09:53] Speaker 04: And so we'll just take, for these purposes, a sentencing range of 30. [01:09:59] Speaker 04: I realize we're getting there by variance, but that's an aspect of variance you don't challenge. [01:10:05] Speaker 04: And so then we're in a 30 to life. [01:10:10] Speaker 04: he would still argue that it's something to be unreasonable because he had to pronounce some of the acquitted conduct? [01:10:18] Speaker 06: As I said, Your Honor, it'd be a much more difficult argument, but a guideline sentence can be substantively unreasonable under the facts of a case. [01:10:25] Speaker 06: The facts of this case are horrific. [01:10:29] Speaker 01: Can I just ask you a calculation point before you get into that? [01:10:34] Speaker 01: So if you back out the acquitted [01:10:39] Speaker 01: which is the causing death. [01:10:45] Speaker 01: By my calculation, you get a sentence, you get 30 years to life on the non 924 C counts and then plus 10. [01:11:01] Speaker 01: So it's really 40 to life. [01:11:05] Speaker 06: Yes, your honor. [01:11:06] Speaker 06: And I understood, Judge Mallette, to include the mandatory. [01:11:09] Speaker 01: Yeah, I just want to make, I just want to figure out if we're talking about 30 or 40. [01:11:15] Speaker 01: I was thinking of it as. [01:11:16] Speaker 04: I thought I said 30 and then you would get the 10 extra. [01:11:18] Speaker 01: Right, right. [01:11:18] Speaker 01: So 40 total or more taking account of the 924C. [01:11:26] Speaker 01: Yes, your honor. [01:11:27] Speaker 01: OK. [01:11:28] Speaker 01: All right. [01:11:29] Speaker 04: Go ahead. [01:11:30] Speaker 04: When I said, I didn't mean when I said 30 plus the 10, but you're right. [01:11:35] Speaker 06: I think 40. [01:11:39] Speaker 06: And again, Your Honor, I, I, the court doesn't have to decide this issue. [01:11:46] Speaker 06: whether the government would have a successful substantive unreasonableness argument to a 40-year sentence is not something, not a bridge we have to cross at this point. [01:11:57] Speaker 04: Well, no, but I was just, you know, you were opening with this, you know, the sentencing range of the sentencing guidelines, whether the life imprisonment, but then you weren't challenging the backing out of the equity conduct, it was to catch us down [01:12:10] Speaker 04: What I meant by 30 is that's the discretionary error. [01:12:13] Speaker 04: There's no discretion over the 10 years. [01:12:15] Speaker 04: So in the discretionary area, we're down to 30. [01:12:18] Speaker 04: And so it seems to me that as to the discretionary aspect of the sentence, it's how did we get from 30 down to 12? [01:12:28] Speaker 04: Because again, the 22 came from adding the 10 on. [01:12:30] Speaker 04: So isn't that really where the focus of your argument? [01:12:34] Speaker 04: That's really where your argument is about is how did we get down from 30 to 12. [01:12:39] Speaker 06: If the court wants to look at it from life to 22 or life to 12 or 30 to 12, all of those are extraordinary variances. [01:12:51] Speaker 06: None of them are adequately explained by the district court's attempt to back out of acquitted conduct and all result in a sentence that is substantively unreasonable on the horrific facts of this case. [01:13:06] Speaker 04: And then just to lay things out for you on how I'm trying to struggle through this issue. [01:13:13] Speaker 04: And that is our standard of review is profoundly differential. [01:13:19] Speaker 04: And there's no claim of any procedural [01:13:24] Speaker 04: I'll try that at one point, but you're not claiming any procedural error here so you're really just attacking the discretionary judgment which gets the most protection and then this is not a case for the district court was skeletal and explanation the district court here gave a lengthy, and I think we can certainly [01:13:42] Speaker 04: have your arguments about disagreeing with it, but gave a very thoughtful and careful explanation of his sentencing reasoning here. [01:13:53] Speaker 04: And yet, as you point out, for the discretionary counts, 30 to 12 is a big jump. [01:14:03] Speaker 04: But the district court mentioned other factors besides the acquitted conduct. [01:14:09] Speaker 04: His age at the time he would come out of prison, [01:14:12] Speaker 04: And I know you disagree about that, but that is a relevant factor for district court to consider his support, his employment history. [01:14:24] Speaker 04: So how does one write the opinion that you want that says that all of the factors, assuming we're backing out the acquitted conduct, that all of the other factors that district court mentioned [01:14:38] Speaker 04: aren't, don't justify or not under justify something, the right verb here under a very differential standard review as a matter of law puts his judgment off limits. [01:14:51] Speaker 04: And I can't speak to my colleagues, but simply claiming terrorist terrorist doesn't do the work for me. [01:14:58] Speaker 04: I need, I need really some sort of hard substantive analysis, which is not to dismiss what happened here, but grappling with the jury's verdict. [01:15:08] Speaker 04: The floor counts, everything else that was acquitted, how do we describe, how would one write the opinion that says this was as a matter of law and off limits discretionary judgment? [01:15:22] Speaker 06: There are a lot of questions there, your honor. [01:15:25] Speaker 04: You get to write the opinion right now, so have at it. [01:15:30] Speaker 06: Starting with the fact that this was a thoughtful and reasoned opinion, that certainly hasn't stopped other courts from reversing on substantive unreasonableness grounds. [01:15:40] Speaker 06: In the Caesar case that we submitted as part of our 28-J letter, Judge Weinstein, a famed jurist, had what the court called a [01:15:50] Speaker 06: a meticulous inquiry and analysis and said it was, despite our admiration for that, the court nonetheless ended up in the wrong place. [01:16:01] Speaker 06: And that could equally describe what occurred here. [01:16:05] Speaker 06: In terms of the other factors that the district court discussed, first, the court discussed those before he said, [01:16:16] Speaker 06: this would be an easy sentencing, notwithstanding the foregoing, this would be an easy sentencing, but for the acquitted conduct. [01:16:26] Speaker 06: So it seems clear that if the judge, it's unclear that the judge put any weight on those, but to the degree he did, it seems clear that he put minimal weight on them. [01:16:36] Speaker 06: And finally, even many aspects of the judge's analysis of those other factors betrayed the fact that he lost sight of how serious this offense was. [01:16:48] Speaker 06: You know, talking about Katala as though he's a sort of standard street criminal who's going to age out of crime, who has a supportive family at home, it completely ignores the fact that he is the leader, the self-admitted leader of an armed extremist militia in Libya who participated in a world-renowned terrorist attack on a US diplomatic facility during which four Americans were killed. [01:17:15] Speaker 06: It's just like he was describing [01:17:17] Speaker 06: the type of criminals who come before him every day and lost sight of the seriousness of the offense, the significance of this crime of terror, this defendant's role within this armed extremist militia. [01:17:32] Speaker 06: I think that's how you write the opinion, saying that this extraordinary variance, which requires a much more significant justification [01:17:47] Speaker 06: than a lesser variance was not justified here going from a guideline sentence of life to a discretionary sentence of 12 years or even backing out a credit conduct guidelines of 32 discretionary sentence of 12. [01:18:06] Speaker 01: I don't reconcile. [01:18:09] Speaker 01: The district court wrote two sentencing had two sentencing rulings, the calculation [01:18:16] Speaker 01: guideline calculation, opinion, and then the actual sentence. [01:18:22] Speaker 01: It just seems like [01:18:26] Speaker 01: they're more than a little bit schizophrenic on how the court reacted to those issues. [01:18:34] Speaker 01: Because even apart from acquitted conduct, the court says all of the things you were just saying in the first opinion. [01:18:43] Speaker 01: And I think maybe in the first half of delivering the actual sentence, he says, you're a hardened terrorist. [01:18:51] Speaker 01: You're a leader of this militia. [01:18:54] Speaker 01: This is an extraordinarily serious offense. [01:18:59] Speaker 01: It just seems hard to reconcile the first 75% of what he did with the last piece and taking out acquitted conduct to go from life down to 40 or 30 plus 10, whatever it is, doesn't seem to account for all of that. [01:19:24] Speaker 06: I agree, Your Honor, and I think you just described a substantively unreasonable sentence where the court seems to have described this defendant as a terrorist, as a leader of this horrific attack, and yet at the end makes this sort of U-turn and ends up in a cul-de-sac where he ends up [01:19:52] Speaker 06: imposing a substantively unreasonable sentence. [01:19:54] Speaker 06: And under those circumstances, it certainly seems appropriate to say that the extraordinary variance here was not justified by these reasons. [01:20:04] Speaker 06: It resulted in a sentence that does not accurately reflect the seriousness of this conduct. [01:20:11] Speaker 04: Is it substantively unreasonable to disagree about recidivism risk? [01:20:20] Speaker 04: the government about recidivism risk? [01:20:23] Speaker 06: I don't know if that results in substantive unreasonableness. [01:20:28] Speaker 04: Do you have evidence, is there evidence about his likelihood of recidivism? [01:20:33] Speaker 04: It's a little hard to compare because having been in Libyan jails, it's not quite the same thing to say whether you recidivate from that. [01:20:40] Speaker 04: But what was the evidence of recidivism other than his terrorism? [01:20:49] Speaker 04: His terrorist behavior pattern. [01:20:53] Speaker 06: I apologize for an arching honor. [01:20:55] Speaker 06: I don't think there was evidence either way. [01:20:57] Speaker 06: He put in evidence of his age. [01:20:58] Speaker 04: Could it be substantively unreasonable? [01:21:01] Speaker 04: Would you argue that it was substantively unreasonable to disagree on recidivism as part of his 3553 analysis to include that as well? [01:21:12] Speaker 06: I think it was a mistake that district court made in not recognizing the judgment that Congress and the sentencing guidelines have made that terrorists are different when it comes not only to the risk that they will commit a recidivist crime, but also the horrific consequences if they do. [01:21:36] Speaker 06: I also think that [01:21:38] Speaker 06: You know the district court failed to appreciate the fact that this defendant is going to go back to Libya in his mid 60s. [01:21:46] Speaker 06: When and you know if history is any guide will be received as a hero. [01:21:52] Speaker 06: when he does. [01:21:54] Speaker 06: And that's not only recidivism, but it also goes into, you know, pointing out that the deterrence effect. [01:22:00] Speaker 06: I think many terrorists, if they could participate in a murderous attack on a U.S. [01:22:05] Speaker 06: ambassador and, you know, go home alive in their mid-60s would welcome the opportunity. [01:22:11] Speaker 06: It's certainly not going to deter Qatala specifically, nor other terrorists or the people who aid and abet them generally. [01:22:19] Speaker 06: to sentence this particular defendant who was a leader of this attack to only, you know, a 12 year discretionary term on the crimes for which the judge had such discretion. [01:22:35] Speaker 05: Do you think it was a separate, I guess, kind of error or a separate reason for unreasonableness that the judge here seems to suggest or he says quite explicitly that he thinks 22 years is appropriate [01:22:49] Speaker 05: as an overall sentence and that if we were to reverse on the 924C count that we should remand for resentencing, which suggests that he thinks that 12 years is not in fact adequate for the other three counts, which I don't know. [01:23:07] Speaker 05: To me, that seems like another, you know, it's almost as though he's reducing the mandatory 10 years in terms of adding them onto the 12 years. [01:23:18] Speaker 06: I think that's a fair way of looking at it, Your Honor, you know, certainly the Ninth Circuit in Rossam, distinguished between the mandatory part of that defendant sentence and the non mandatory part. [01:23:33] Speaker 06: in holding that the district court sentence there was substantively unreasonable and it does seem here too that you know the district court was almost asking for a second chance to increase the sentence for the terrorism related offenses based on this mandatory minimum which suggests that 12 years is unreasonable without the mandatory minimum. [01:23:56] Speaker 06: I agree with that your honor. [01:24:00] Speaker 06: If the court has no further questions about the government sentencing appeal, I would like to turn to three of Katala's substantive arguments for reversal. [01:24:10] Speaker 06: And I'll just take them in the same order that the defense did. [01:24:13] Speaker 06: The defense's argument on the phone records largely ignores the statute, 18 USC 3505, which mandates that questions of admissibility of foreign business records such as these [01:24:29] Speaker 06: be determined before trial, but it also ignores the difference between self-authenticating records under Rule 902 of the Federal Rules of Evidence and non-self-authenticating documents under and other evidence under Rule 901. [01:24:46] Speaker 06: Foreign business records such as these telephone records are a form of self-authenticating evidence where the document itself [01:24:55] Speaker 06: is all the evidence of authenticity necessary to establish the prima facie case to go to the jury. [01:25:03] Speaker 06: That's what rule 902 says. [01:25:06] Speaker 06: These items require no extrinsic evidence of authenticity in order to be admitted. [01:25:11] Speaker 04: I don't think they're challenging the district court's decision this can go to the jury. [01:25:15] Speaker 04: What you just said is that still before the jury, [01:25:22] Speaker 04: there's round two, I guess, round two, their argument is that you still had to give the jury an evidentiary basis for concluding that these were authentic telephonic records and you didn't do that. [01:25:39] Speaker 04: And so that seems to me a 3505 isn't speaking to that. [01:25:44] Speaker 04: It doesn't displace the jury's ability to decide, I don't know what, even if they were ever, I assume they're never even told about what the district court does, but you know, the thing to go, well, we don't think, we think this is something my 12 year old could have typed up on the computer. [01:25:58] Speaker 04: That's not displaced. [01:26:00] Speaker 04: And so you still have that burden. [01:26:02] Speaker 04: So I think that's where their argument is focused. [01:26:06] Speaker 04: And I'd like to hear your, [01:26:09] Speaker 04: explanation as to why there was sufficient authentication evidence before the jury, unless you prefer just to not say we didn't have to do anything. [01:26:22] Speaker 06: My first answer is we didn't have to. [01:26:24] Speaker 06: The statute makes clear that this is a determination made by the judge before trial. [01:26:31] Speaker 04: So to the degree- Was there a jury instruction and did you ask for a jury instruction that would have advised them that they must accept these as authentic records? [01:26:42] Speaker 06: No, Your Honor. [01:26:43] Speaker 06: And the jury was not required to accept these. [01:26:45] Speaker 04: Exactly. [01:26:45] Speaker 04: It could decide that they're not what you claimed they were, right? [01:26:49] Speaker 06: Yes, Your Honor. [01:26:51] Speaker 06: And the jury had that opportunity. [01:26:52] Speaker 04: That was a jury issue. [01:26:53] Speaker 04: So it was an open issue before the jury whether these were what you said they were. [01:26:58] Speaker 04: You had to persuade the jury that they were what you said they were. [01:27:01] Speaker 04: You had to persuade the jury that they were what you said they were. [01:27:08] Speaker 06: Not in order to get them admitted, Your Honor. [01:27:10] Speaker 04: These met the threshold of a jury can see them. [01:27:17] Speaker 04: That's what 35.05 is doing. [01:27:20] Speaker 04: This met that threshold. [01:27:22] Speaker 04: But you still had to convince the jury [01:27:26] Speaker 04: if you wanted them to rely on them at all, that these are what you say they are. [01:27:30] Speaker 04: And you put on evidence to that effect. [01:27:32] Speaker 04: I don't understand your point. [01:27:34] Speaker 04: We didn't have to do anything. [01:27:35] Speaker 04: You have to convince the jury that these were what you said they were. [01:27:40] Speaker 06: I wanna be careful here that I think we understand each other. [01:27:44] Speaker 06: I think we're saying the same thing, but only in different ways. [01:27:47] Speaker 06: I understand the defendant's claim to be that these records should not, were improperly admitted into evidence. [01:27:54] Speaker 06: that they should have been withdrawn and not given to the jury. [01:27:58] Speaker 06: That is, I think, wrong. [01:28:01] Speaker 06: And I think your honor thinks it's wrong based on the statute. [01:28:05] Speaker 04: I had understood her argument, which she described as a sufficiency of evidence argument. [01:28:11] Speaker 04: And that is that the district court was the gatekeeper that could go before the jury, but then you didn't do your job of [01:28:20] Speaker 04: allowing a jury, providing a basis for a jury to find, she can correct me if I've misunderstood her argument to be clear, but at least as an issue, as to this issue, did you provide a sufficient basis, sufficient evidence for a jury to conclude that these were what you said they were? [01:28:34] Speaker 06: And I just to be clear, Your Honor, I think what she's saying is we didn't and thus the record should not have been put before the jury. [01:28:42] Speaker 06: And that second part is wrong. [01:28:45] Speaker 06: That determination that they are put before the jury, the judges gatekeeping roles in this instance by statute commanded to occur before trial. [01:28:55] Speaker 06: And so they were properly before the jury. [01:28:57] Speaker 06: Once they're before the jury, [01:29:00] Speaker 06: If the government bears no burden of putting on additional evidence, then it's just like any other piece of evidence that the parties can argue about the weight, and they argued that the jury should give these records, the telephone records no weight. [01:29:15] Speaker 06: you should believe that they are telephone records and you should give them heavyweight. [01:29:18] Speaker 06: And that was appropriately a decision given to the jury here because the government met its pretrial burden under section 3505. [01:29:25] Speaker 06: In terms of what evidence established that they were phone records, we described this in our brief, that the headings written in Arabic indicated time of call, duration of call, number calling, number called, [01:29:40] Speaker 06: There were other headings that indicated the cell phone towers that the calls pinged off of. [01:29:47] Speaker 06: There was testimony that the subscriber lived in Benghazi and was the defendant's brother and that the defendant lived at the same address. [01:29:58] Speaker 06: There was testimony that the color that that subscriber page was the same color as all other records from Libiana, the cell phone company. [01:30:06] Speaker 06: The guard from Libiana said he had seen similar, you know, the same records in the same format in the past, not often, but he had seen them. [01:30:15] Speaker 06: And when asked whether he believed these were authentic or that these were the beyond the records, he said, for sure. [01:30:21] Speaker 06: The phone number, the area code, if you will, was 092, which was specifically assigned to Libiana, the cell phone company. [01:30:31] Speaker 06: And so all of that evidence was before the jury for it to determine how much weight to assign these properly admitted records. [01:30:43] Speaker 06: you know, the government's argument is that they were properly admitted based on a pre-trial determination made by the judge. [01:30:50] Speaker 06: And the defense doesn't challenge that pre-trial determination. [01:30:53] Speaker 06: They're just saying that the government should have put on additional evidence at trial or they shouldn't have been admitted. [01:30:59] Speaker 06: And that's inconsistent with the statute and it's inconsistent with how self-authenticating records under rule 902 work. [01:31:06] Speaker 06: The records themselves are the evidence of authenticity under rule 902. [01:31:13] Speaker 06: If I might, if there are no further questions, move on to the defendant's challenge that section 1363 isn't a criminal violence because it can be committed by conspiracy. [01:31:25] Speaker 06: It's a long standing postulate of criminal law that substantive offense and a conspiracy to commit that offense are separate crimes. [01:31:35] Speaker 06: with separate requirements. [01:31:36] Speaker 06: I mean, that goes back to Pinkerton. [01:31:39] Speaker 06: Callinan, the Supreme Court, addressed the Hobbs Act, which had almost the identical structure as this statute, and found that they were separate crimes. [01:31:47] Speaker 04: I don't think there's any legal- You proposed a jury, or you jointly, you joined with the defense and proposed a jury structure that defined as the first element on the 13th of the free charge, that there be [01:32:02] Speaker 04: either conspiracy or attempt or the substantive offense, or I think even aiding and abetting, right? [01:32:10] Speaker 06: So if I might step back, if we're talking about the modified categorical approach, the court doesn't just look at the jury instructions to determine what Katala was charged with. [01:32:18] Speaker 04: Has the government ever asked for a jury instruction in a case like, in a 1363 case that says, that backs out conspiracy as a separate, and said this is a separate crime? [01:32:30] Speaker 06: I have no idea, Your Honor, what the government has ever done. [01:32:33] Speaker 06: I'm sorry. [01:32:33] Speaker 06: I've read all the 1363 cases I can find. [01:32:39] Speaker 06: It's certainly true that the government backed it out of the indictment. [01:32:42] Speaker 06: Katala was not indicted for conspiracy. [01:32:44] Speaker 06: He was indicted for the substantive offense. [01:32:46] Speaker 06: The indictment says nothing about conspiracy. [01:32:49] Speaker 01: Similarly- But you agree that if the government wanted to use count 16 [01:32:59] Speaker 01: as the basis for finding a crime of violence. [01:33:04] Speaker 01: It was a mistake to define the element as substantive act or conspiracy. [01:33:17] Speaker 06: Not necessarily, your honor, because that conspiracy language refers most naturally to pancerton. [01:33:22] Speaker 06: Suppose I think it doesn't. [01:33:26] Speaker 06: Well, I'd like to make my best argument for why you should think that, Your Honor, which is before giving the substantive instructions, after giving the conspiracy instruction, the disher court said, for counts three through 18, the government can satisfy its burden of proof by showing that Mr. Abu Katala committed the acts of the offense himself or that he conspired with or aided and abetted others to do the same. [01:33:52] Speaker 06: I will instruct you later on co-conspirator and aiding and abetting liability. [01:33:58] Speaker 06: And then after he gave those counts three through 18 instructions, and that's on page 34 of the supplemental appendix, after he gave those substantive instructions, the court then gave the Pinkerton instruction that allowed- Pinkerton instruction is at 5903 of the transcript, right, which is after [01:34:21] Speaker 01: all of the substantive counts and is in a different that's he goes through the substantive accounts then he says now I'm going to explain aiding and abetting and Pinkerton theory he doesn't say Pinkerton but aiding and abetting and Pinkerton theories and he does that for several pages but that's in a separate passage from the point within the instructions on count 16 [01:34:51] Speaker 01: in which he says participated in a conspiracy to injure or destroy the building. [01:34:59] Speaker 06: I don't disagree, Your Honor. [01:35:02] Speaker 01: I think first of all. [01:35:04] Speaker 01: It's just not a Pinkerton instruction because it doesn't require, that clause doesn't require the completed offense. [01:35:13] Speaker 01: And it does require a conspiracy focused on the object, which you don't need it. [01:35:19] Speaker 01: You only need foreseeability and Pinkerton. [01:35:22] Speaker 01: So it just doesn't parse that way. [01:35:24] Speaker 06: With all due respect, Your Honor, I disagree. [01:35:27] Speaker 06: The defendant was not convicted of conspiracy to commit to violate sections 1363. [01:35:32] Speaker 06: The jury never had to find the existence of an agreement, which is the sin qua non of conspiracy. [01:35:39] Speaker 06: The jury was not given conspiracy related instructions under count 16, like it was with regard to count one. [01:35:48] Speaker 01: And again, I agree with you. [01:35:49] Speaker 01: That's the better reading of the instructions, no doubt, but it is a little bit muddled. [01:36:01] Speaker 06: discounting too much the structure in which the court gave the instructions. [01:36:06] Speaker 06: It gave count one, which was a conspiracy instruction and gave conspiracy related concepts. [01:36:11] Speaker 01: Full conspiracy instructions, right. [01:36:13] Speaker 06: It gave count two, which charged the same offense as count one, but as a substantive offense and included in the jury instructions a note saying that these are different offenses. [01:36:24] Speaker 06: It then preamble the rest of the substantive offenses by saying, [01:36:30] Speaker 06: The defendant can be found guilty of any of these offenses, three through 18, either through conspiracy or aiding and abetting, which I'll explain later. [01:36:39] Speaker 06: He then gave three through 18 substantively, including count 16, and then he explained Pinkerton. [01:36:46] Speaker 06: So I do think that the reference to conspiracy in count 16, first of all, it didn't require the jury to find an agreement or any of the other substantive elements of conspiracy, but the jury would have naturally understood that [01:37:00] Speaker 06: as incorporating this, he may also be found guilty of conspiracy, which I'll explain later, which in that explanation was Pinkerton. [01:37:08] Speaker 01: I see what you're saying. [01:37:10] Speaker 01: But the other possibility is the jury is looking at count 16. [01:37:17] Speaker 01: It comes across the conspiracy clause. [01:37:24] Speaker 01: It [01:37:26] Speaker 01: looks like a little bit of a cipher, but let's say they're good textualists and they say, okay, what does conspiracy mean? [01:37:33] Speaker 01: And they look through the instructions and they find all of the elaboration of conspiracy in count one and they connect the dots that way. [01:37:42] Speaker 01: I don't think that's possible, Your Honor, because if we're assuming that the jury- I don't think it's likely, but tell me why it's not legally possible. [01:37:54] Speaker 06: Because if we're assuming, first of all, the court has long held that we review jury instructions as a whole. [01:38:01] Speaker 06: And if this jury was reviewing these jury instructions as a whole and came across count one, it would have seen the differences. [01:38:08] Speaker 06: It would have seen that count one requires an agreement and count 16 doesn't. [01:38:11] Speaker 06: It would have come across the preamble to counts three through 16 that said he can be convicted through conspiracy, which I'll explain later. [01:38:19] Speaker 06: And it would have gone to the Pinkerton instruction. [01:38:24] Speaker 06: And that's why whatever the this legal demand for certainty is under. [01:38:31] Speaker 06: Mathis and the Supreme Court's other crime and violence cases is satisfied here. [01:38:38] Speaker 06: Certainly this defendant was not convicted of conspiracy to violate 1363. [01:38:41] Speaker 06: The court gave the substantive elements of the offense, the malicious, the injuring a dwelling or placing the lives of a person in danger. [01:38:52] Speaker 06: All of those are the substantive elements. [01:38:56] Speaker 04: It described- It also said conspiring. [01:38:58] Speaker 04: It also said conspiring, a word they'd heard before. [01:39:01] Speaker 06: true and the most recent time they had heard that word was when the court said, I'll explain conspiracy to you later. [01:39:07] Speaker 06: And then it went on to explain Pinkerton liability, which I don't think there's any disagreement that Pinkerton liability is a version of committing the substantive crime and thus the crime of violence. [01:39:28] Speaker 01: Are there any case [01:39:30] Speaker 01: on how you do this modified categorical analysis where arguably different documents cut in different directions. [01:39:46] Speaker 01: So if we just had the indictment and the verdict form, it would be open and shut in your favor. [01:39:53] Speaker 01: But we also have these instructions which [01:39:57] Speaker 01: make this, let's just assume, introduces some degree of messiness. [01:40:02] Speaker 01: So how do we [01:40:05] Speaker 01: How do we balance? [01:40:07] Speaker 01: Do we just look at everything and say, was it legally certain? [01:40:12] Speaker 01: Are some documents more important than others? [01:40:15] Speaker 01: I haven't seen a case like this. [01:40:18] Speaker 06: I couldn't find any cases on that, Your Honor. [01:40:20] Speaker 06: I likewise didn't see any cases in response to Judge Mullight's question about how plain error interacts. [01:40:29] Speaker 06: You know, the defendant saying he's not claiming that this jury instruction was incorrect, but it was in so far as conspiracy to commit an offense and the substance of crime are different. [01:40:46] Speaker 06: And to the degree that this uncertainty or messiness, as your honor had it, was introduced, it was through jury instructions proposed by the defendant. [01:41:01] Speaker 04: Proposed by you, which said there's a single element here, too. [01:41:04] Speaker 04: I really don't think this is the time to be pointing fingers. [01:41:08] Speaker 04: You signed off on a jury instruction and said the first element. [01:41:12] Speaker 04: and then combined all of those things together, which sounds like different means of accomplishing a single element. [01:41:19] Speaker 06: We didn't disagree with the instructions the defendant proposed, Your Honor. [01:41:22] Speaker 06: That's true. [01:41:24] Speaker 06: They were proposed as the defendant's jury instructions, which is something the district court can certainly give weight to when evaluating them. [01:41:31] Speaker 04: But at the end of the day... The government signed off on them, didn't object. [01:41:36] Speaker 04: So these are fine with us? [01:41:38] Speaker 06: The government, there was a footnote in the defendant submission that said that the parties had met and largely agreed and the government would talk about its disagreements later and it didn't disagree with this language. [01:41:52] Speaker 06: That's true. [01:41:52] Speaker 04: Right. [01:41:53] Speaker 04: So, so the district court understood this is both parties signing off on this instruction. [01:41:58] Speaker 04: It just seems to me this is I can only speak for myself, but this is not the place for you to be pointing fingers. [01:42:05] Speaker 06: Even if that's so, Your Honor, first of all, we don't think that any messiness undermines the ultimate conclusion that the jury that Catalov's charged with and convicted of the substantive 1363 offense, which is a crime of violence for purposes of 924C. [01:42:29] Speaker 05: Is the government making any kind of plain error argument here? [01:42:34] Speaker 05: Do you think that the specific argument that's being brought here with respect to conspiracy was forfeited below? [01:42:40] Speaker 06: We didn't argue that, Your Honor. [01:42:45] Speaker 06: It's hard to sort of parse that out. [01:42:49] Speaker 06: The defense [01:42:51] Speaker 06: whether you wanna call it jointly or on its own, proposed these instructions. [01:42:55] Speaker 06: They did not object to this language. [01:42:59] Speaker 06: So at the very least, it's a review for plain error. [01:43:01] Speaker 06: And we did make a plain error argument as to the part of a 924C instruction that said counts one through 17 can constitute crimes of violence. [01:43:13] Speaker 06: The defendant did argue [01:43:17] Speaker 06: post-trial that he was not properly convicted of a crime of violence. [01:43:25] Speaker 06: And the defendant specifically did not make the conspiracy argument that he makes now. [01:43:33] Speaker 06: Judge Cooper discussed that in a lengthy footnote in which he cited one of Judge Millett's, I think, concurring opinions, but specifically noted- A lot changed. [01:43:44] Speaker 06: The law had changed, I believe, by the time the defense submitted that post-trial motion. [01:43:53] Speaker 06: The Supreme Court has not said that conspiracy, to my knowledge, has not said that conspiracy cannot constitute a crime of violence. [01:44:00] Speaker 06: The government isn't challenging that here. [01:44:02] Speaker 06: We have conceded in other cases that conspiracy does not constitute a crime of violence. [01:44:08] Speaker 06: Conceded here as well? [01:44:10] Speaker 06: Yes, Your Honor. [01:44:13] Speaker 06: But the law had changed by the time the defense made that motion and they didn't challenge conspiracy. [01:44:19] Speaker 06: It does seem that to the degree that whether you call it invited error or plain error or equitable doctrines, a plain error is optional. [01:44:31] Speaker 06: It's something the court recognizes as a matter of discretion. [01:44:34] Speaker 06: It does seem like the defense bears some [01:44:39] Speaker 06: culpability for introducing any messiness to this jury instruction that would educate the court's decision about whether to recognize it. [01:44:50] Speaker 05: I think the government is making an invited error argument though. [01:44:53] Speaker 05: I mean, is there any evidence that there was any kind of strategic purpose here that the defense had in making the jury instruction in this form? [01:45:05] Speaker 06: With regard to this issue, no. [01:45:10] Speaker 06: special maritime and territorial jurisdiction argument, I think there is some evidence of strategic or intentional decision, but with regard to the addition of the conspiracy language, I can't think of any reason why the defense would have added that, although you can certainly understand why they wouldn't have objected to it when it naturally refers to Pinkerton. [01:45:36] Speaker 06: And where the government, there is some pre-trial discussion, and I haven't read it fully, but there was some pre-trial discussion about how the government wanted the aiding and abetting and Pinkerton language in every substantive instruction. [01:45:51] Speaker 06: And Judge Cooper said, no, I'm not going to do that. [01:45:55] Speaker 06: Rather, I'm going to give this preamble and then give those instructions after. [01:45:59] Speaker 06: And so it may be that this is the one instance in which the conspiracy language wasn't taken out where it was taken out elsewhere. [01:46:12] Speaker 06: If there are no further questions on this issue, the last issue I would like to address is [01:46:19] Speaker 06: weather. [01:46:21] Speaker 04: I apologize, one of the things. [01:46:25] Speaker 04: I'm sorry, are you going to turn to the [01:46:32] Speaker 04: the, against an American, the section seven issue, is that where you're going? [01:46:35] Speaker 06: I was going to your own. [01:46:36] Speaker 04: Please go ahead. [01:46:37] Speaker 04: That's fine. [01:46:37] Speaker 04: That's fine. [01:46:38] Speaker 04: That'll work. [01:46:38] Speaker 06: Thank you. [01:46:39] Speaker 06: Um, you know, there, the defense makes two arguments. [01:46:44] Speaker 06: So it's the statutory argument that 1363 can't be committed against an American. [01:46:49] Speaker 06: Uh, and then the jury instruction issue. [01:46:53] Speaker 06: I don't have a whole lot to add to the argument I made in the briefs about the fact that 1363, particularly the aggravated offense, which requires the destruction of a dwelling or a person's life be placed in danger, can be committed against an American, which seems clearly to be a fact-specific determination like many of the other [01:47:16] Speaker 06: offense specific determinations required under section seven for a crime to occur within the special maritime and territorial jurisdiction of the United States. [01:47:28] Speaker 06: Assuming that's correct, it's true that the jury was not specifically required to find that this was an offense committed against an American. [01:47:39] Speaker 06: We argued that the defense invited that error by proposing the instruction [01:47:46] Speaker 06: But this doesn't turn on invited error versus plain error under either standard. [01:47:52] Speaker 04: This is a jurisdictional element. [01:47:55] Speaker 04: Has this court ever applied the invited error doctrine to determine whether the jurisdictional element was satisfied? [01:48:05] Speaker 06: Not that I'm aware of, Your Honor. [01:48:07] Speaker 04: You have any court that has applied invited error doctrine to a jurisdictional element that has to be satisfied? [01:48:14] Speaker 06: I haven't focused on that issue, Your Honor, so I don't know. [01:48:18] Speaker 04: And this seems rather material, right? [01:48:22] Speaker 06: In some respects, jurisdictional elements, I think, Your Honor, are in fact less material than the elements of the substantive crime. [01:48:28] Speaker 06: I mean, the Supreme Court said in Torres versus Lynch that the mens rea of the substantive crime doesn't apply to jurisdictional elements. [01:48:37] Speaker 04: And that doesn't mean it's less important than actual jurisdiction [01:48:42] Speaker 04: for district court to enter a judgment on a particular count be established? [01:48:50] Speaker 06: I disagree, Your Honor. [01:48:50] Speaker 06: And the jury here found the factual [01:48:53] Speaker 06: part of the jurisdictional element that this occurred on a US special mission effectively as shorthand. [01:49:02] Speaker 04: And they found that- Yeah, I know what you mean by found a special mission as shorthand. [01:49:07] Speaker 04: That doesn't get you jurisdiction under section seven. [01:49:11] Speaker 04: It has to be a special mission. [01:49:15] Speaker 04: And if there is an offense against an American, [01:49:20] Speaker 04: then special missions are within, or embassies are within the special jurisdiction. [01:49:26] Speaker 04: I don't know why Congress wrote it that way, but it wrote it that way. [01:49:29] Speaker 06: I agree, Your Honor. [01:49:32] Speaker 04: So finding that it was a special mission is not code for finding that there is an offense against an American. [01:49:40] Speaker 06: I didn't mean to suggest that, Your Honor, and I apologize if my argument did. [01:49:45] Speaker 06: We aren't disputing for purposes of this appeal that the jury needed to find that this offense was committed against an American and was not charged with that element. [01:49:55] Speaker 06: Your Honor asked if the court has ever applied invited error to jurisdictional elements, not that I'm aware of. [01:50:01] Speaker 06: Regardless, this case doesn't rise and fall on invited error because the defendant cannot meet the plain error [01:50:09] Speaker 06: requirements which undoubtedly do apply if invited error does not. [01:50:15] Speaker 06: First of all, the special maritime and territorial jurisdiction of the United States has lots of elements that are facts to be decided by the jury, but many of the sections of that code require legal findings or allow for legal findings by the judge. [01:50:34] Speaker 06: Under prong two, whether this error was plain, it's not entirely clear. [01:50:38] Speaker 06: It's certainly not plain. [01:50:40] Speaker 06: that whether the offense was committed by or against an American is a jury decision versus a judge decision. [01:50:47] Speaker 06: And there's no case that I'm aware of saying that this is something that must be decided by the jury. [01:50:54] Speaker 06: So the error wasn't plain under prong, too. [01:50:57] Speaker 04: Well, how do we know when jurisdictional elements are submitted to juries and when they aren't? [01:51:04] Speaker 06: But the Second Circuit, Your Honor, has discussed this extensively, one case that I could point the court to. [01:51:11] Speaker 04: Is the United States position on how, is it the United States position that this doesn't go to the jury? [01:51:17] Speaker 04: This is against an American? [01:51:19] Speaker 06: We haven't taken a position on that one way or the other. [01:51:22] Speaker 04: Well, now is the time to take a position. [01:51:23] Speaker 06: Well, that would go to everyone. [01:51:24] Speaker 04: You're arguing that it doesn't have to go, and I want to make sure that's the position of the United States for all cases, that this doesn't go to the jury. [01:51:32] Speaker 06: We, I'm sorry, we aren't arguing that doesn't go to the jury we're arguing that the law is not currently clear that it must go to the jury, that is not plain error. [01:51:40] Speaker 06: It might be error. [01:51:42] Speaker 01: This might be why would it not go to the jury isn't it an element of the offense. [01:51:47] Speaker 06: So under the special maritime and territorial jurisdiction, there are facts such as the location of the offense that go to the jury, but there are also questions of law as to whether that location falls within the special maritime and territorial jurisdiction. [01:52:06] Speaker 06: And so under section seven, writ large, there are some factual questions for the jury and some legal questions for the judge. [01:52:14] Speaker 01: Right, but the question, [01:52:16] Speaker 01: Your theory, as I understand it, is that the jurisdictional element is satisfied in a case where at least if the jury finds that the life of an American was placed in jeopardy. [01:52:36] Speaker 06: Yes, Your Honor. [01:52:38] Speaker 01: And I'm not sure your position on dwelling, but let's just take life of any person for now. [01:52:43] Speaker 01: I mean, that's [01:52:45] Speaker 01: That's a finding of fact. [01:52:47] Speaker 01: That's not a legal question about the scope of Section 1363 or Section 7. [01:52:56] Speaker 06: Well, that satisfies the against an American requirement, but the ultimate requirement is that it be an offense. [01:53:02] Speaker 04: How does it do that when it's defined as any person? [01:53:07] Speaker 06: I think that's a jury instruction. [01:53:09] Speaker 06: Do I understand? [01:53:10] Speaker 06: Is that a question about the jury instructions, Your Honor, or a question about how the Senate? [01:53:14] Speaker 04: You said that that satisfies it, but when 1363 asks about the life of any person being placed in jeopardy, and yet the jurisdictional requirement is finding that there was an offense against an American. [01:53:30] Speaker 04: And those do not strike me as the same inquiry at all. [01:53:36] Speaker 04: one could satisfy both prongs with a particular determination, but simply asking whether any person's life is in jeopardy, which I thought you were saying would satisfy the jurisdictional element that there'd be an offense against an American. [01:53:52] Speaker 06: I think I'm saying the same thing as your honor, that the same evidence could satisfy both, but doesn't have to satisfy both. [01:53:59] Speaker 04: And so if the evidence is disputed, there's factual disputes about that evidence that would have to be resolved by a jury. [01:54:07] Speaker 06: Or there's a legal question about whether the offense was committed by or against an American. [01:54:13] Speaker 06: And the question for the jury is where the offense occurred. [01:54:15] Speaker 04: Why is it a legal question whether an offense is committed against an American? [01:54:21] Speaker 04: Maybe whether something counts as an offense would be a legal question, but whether it's against an American or whether an American, why would against an American be a legal question? [01:54:31] Speaker 06: I ultimately agree that it's likely a factual question. [01:54:37] Speaker 06: for the jury, whether the offense is committed against an American, but that error was not planned. [01:54:42] Speaker 04: What is the legal test, right? [01:54:45] Speaker 04: You're making a plain error argument, but there's a settled legal test for determining what goes to a jury. [01:54:51] Speaker 04: And that settled legal test would clearly put a dispute over whether an American was, an offense was committed against an American, that factual question, against whom were offenses committed. [01:55:06] Speaker 04: to a jury than it seems to me. [01:55:08] Speaker 04: It may be plain error. [01:55:11] Speaker 06: I am not aware of a settled legal definition of when an offense is committed against an American or a settled legal test for when you parse the legal questions under the special maritime and territorial jurisdiction from the factual questions. [01:55:27] Speaker 04: Just jurisdictional elements generally in crimes. [01:55:32] Speaker 06: That's true, Your Honor, and the jury often finds that. [01:55:35] Speaker 04: Whether a gun moved in interstate commerce. [01:55:38] Speaker 04: Don't juries decide whether it moved in interstate commerce? [01:55:43] Speaker 06: They do, Your Honor. [01:55:44] Speaker 06: But again, the Special Maritime and Territorial Jurisdiction, the Second Circuit has taken judicial notice on appeal of the fact that a crime occurred within the jurisdiction where the jury found as a matter of fact that it was located, say, in a jail. [01:56:00] Speaker 06: And so what constitutes a legal determination? [01:56:02] Speaker 04: Right, but the problem here is were the facts found, right? [01:56:05] Speaker 04: This isn't categorizing facts. [01:56:06] Speaker 04: For example, I guess if there were a dispute about someone's legal status as an American, I found it [01:56:12] Speaker 04: that there was an offense against X. And then there were just a legal dispute about that person's status as an American. [01:56:20] Speaker 04: Maybe that would go to the court. [01:56:21] Speaker 04: But here, it's just all a factual dispute about, was an offense committed against an American? [01:56:30] Speaker 04: Not against America, not against an agency of the United States government, but against an individual American. [01:56:36] Speaker 06: The court may think that's logically true, but there's no [01:56:40] Speaker 06: legal authority demanding that be the case for prong to a plain error. [01:56:46] Speaker 06: No Supreme Court case, no interpretation of the section that I'm aware of that makes it clear for purposes of plain error prong to that the district court had to give. [01:56:57] Speaker 04: Because there would be a plausible argument in this case that the court could have decided as a matter of law. [01:57:04] Speaker 04: Is there a colorable [01:57:06] Speaker 04: Not just pause, was there a colorable argument that the judge could have taken that issue away from the jury in this case? [01:57:14] Speaker 06: Again, Your Honor, ultimately, I do think it's a factual question for the jury. [01:57:19] Speaker 04: But is there a colorable argument? [01:57:20] Speaker 04: You say it's not plain, which means it's got to be something open. [01:57:24] Speaker 04: Because you can have plain air. [01:57:25] Speaker 04: You don't have to have precedent. [01:57:26] Speaker 04: A statute can be crystal clear. [01:57:28] Speaker 04: And so tell me this one is not. [01:57:30] Speaker 04: As to this question, an American, who was on the receiving end of an offense here? [01:57:35] Speaker 06: The most I can be prepared to point to today, Your Honor, is the fact that other circuits have routinely divided between legal questions and factual questions for purposes. [01:57:46] Speaker 04: Of course. [01:57:47] Speaker 04: Yes. [01:57:48] Speaker 04: But not on, you don't have a cause of even a colorable or articulable argument as to how this could not have been a jury question here. [01:57:58] Speaker 06: So by the text of the statute. [01:58:00] Speaker 06: whether something committed by an American is something that could possibly be a legal determination, someone's nationality could be a legal determination for the judge, whether the person meets the requirements of the Nationality Act cited in Section 7.9. [01:58:18] Speaker 06: And so the colorable legal argument would be that as a matter of statutory interpretation, [01:58:24] Speaker 06: the phrase right next to it or against an American is likewise a legal determination for the judge rather than a factual determination for the jury. [01:58:37] Speaker 01: So moving past, if Judge Mollett's done with the judge jury question, moving past that, can I ask you, just as a matter of substantive law, you think it is sufficient [01:58:54] Speaker 01: if someone finds, if it is determined that the life of some person was placed in jeopardy and that person was an American. [01:59:10] Speaker 01: Is it also sufficient in your view if it is found that the injured building [01:59:23] Speaker 01: was a dwelling, and it was a dwelling of an American. [01:59:31] Speaker 06: We didn't make that argument in the brief, Your Honor, but it certainly seems like it would be sufficient. [01:59:37] Speaker 01: If you didn't make it in the brief, then we're probably left [01:59:44] Speaker 01: parsing, it's another one of these issues in this case about did the jury or would a properly instructed jury have read on a dwelling theory or a life in jeopardy theory? [02:00:01] Speaker 04: I'm sorry, Judge Katz. [02:00:02] Speaker 04: I was getting you, Judge Katz, as you were breaking up on that last sentence. [02:00:05] Speaker 04: Oh, sorry. [02:00:07] Speaker 01: I mean, if you haven't, if the government hasn't preserved the argument that [02:00:14] Speaker 01: you win under the possibility that the dwelling of an American was injured, then don't we have to figure out whether the jury likely rested or could have rested on the dwelling theory or the life in jeopardy theory? [02:00:42] Speaker 06: On plain error, Your Honor, it's not clear. [02:00:45] Speaker 01: Assuming a plain error on prom 2. [02:00:48] Speaker 06: Assuming a plain error on prom 2 and assuming that this court is on plain error review, it's not clear to me that the court is constrained to disregard if it thinks that a dwelling, you know, injury of a dwelling where an American sleeps [02:01:03] Speaker 06: is a crime committed against an American, but the court do not wrestle with that issue because the defense cannot meet its burden of showing a reasonable probability of a different outcome had the jury been required to find that the life of American was placed in danger. [02:01:18] Speaker 06: It's lights of Americans were placed in danger throughout the entire attack. [02:01:25] Speaker 06: It's true Judge Malik that there were Libyans on scene, there were blue mountain guards who are unarmed, who were injured during the attack, one was assaulted by militants. [02:01:34] Speaker 06: It's also true that there were February 17, 17 February fighters stationed at the mission who were assaulted during the attack. [02:01:43] Speaker 06: coextensively with those assaults, American's lives were placed in danger. [02:01:48] Speaker 06: And so there's no reasonable probability. [02:01:50] Speaker 06: There's just zero chance that the jury found that the defendant was guilty of this crime because he placed Libyan's lives in danger as opposed to American's. [02:02:01] Speaker 04: Factually, that's- Well, we use that when we try to reconcile it with, and this is what makes these things hard. [02:02:07] Speaker 04: You have to reconcile it with the jury's findings that at least this counts one and two. [02:02:13] Speaker 04: his conspiratorial actions were not responsible for death. [02:02:19] Speaker 06: Yes, Your Honor. [02:02:20] Speaker 06: I agree. [02:02:20] Speaker 04: I'm just saying that with regard to- Just help me reconcile that. [02:02:24] Speaker 06: Your Honor, I think there are two ways that make sense that are likely what the jury did, both of which would mean that the defense fails on prong three. [02:02:37] Speaker 06: One is, as Judge Katz has noted, [02:02:39] Speaker 06: There was no evidence as to who set the fires that ultimately killed Sean Smith and Ambassador Stevens and attempted to murder Agent Wickland. [02:02:51] Speaker 06: There was ample evidence of multiple militias and militia leaders on the scene at that time. [02:02:58] Speaker 06: And the Pinkerton conspiracy theory required that Katala's co-conspirators be the ones who commit the crime. [02:03:06] Speaker 06: And so as Judge Cooper found during sentencing, one very plausible explanation of the verdict is that the jury found that Katala was involved in this attack from beginning to end, but because of this hole in the government's case as to who set the fires. [02:03:26] Speaker 06: And again, the fires appear to have been set by happenstance. [02:03:30] Speaker 06: They were set with diesel fuel. [02:03:32] Speaker 06: And there was evidence that that diesel fuel was found on site at this Blue Mountain Guards. [02:03:38] Speaker 06: They call them the Quick Response Force QRF facility. [02:03:41] Speaker 06: And that the militants used the diesel fuel they found there to light both that facility on fire and Villa Sea. [02:03:48] Speaker 06: And so there was evidence that this was a crime of opportunity. [02:03:52] Speaker 06: No one knew who committed it. [02:03:54] Speaker 06: And so the jury may have both found that. [02:03:57] Speaker 06: there was not evidence beyond a reasonable doubt that Catalas co-conspirators lit the fires or that the fires were reasonably foreseeable as a result of the conspiracy that he entered. [02:04:09] Speaker 06: The second also plausible explanation is that the jury [02:04:18] Speaker 06: through, used Katala's own words to conclude that he joined the attack in the middle. [02:04:26] Speaker 06: He himself said that he went to the special mission. [02:04:28] Speaker 06: He himself admitted that he had a phone call with the leader, one of the leaders of the 17th February militia where he commanded him to stop shooting at us. [02:04:38] Speaker 06: If you kill one of us, you will be in trouble. [02:04:40] Speaker 06: He himself admitted that he had the call with Al Ubede that Al Ubede described as Katala saying, [02:04:48] Speaker 06: you know, withdraw your men. [02:04:53] Speaker 06: He said that he manned what he called a roadblock during which he turned away first responders, Libyan police. [02:05:01] Speaker 06: All of these things occurred in this interim period after the fires were set, which was approximately 10.03 p.m. [02:05:09] Speaker 06: There's evidence that there was smoke seen coming from Villasea at 10.03. [02:05:14] Speaker 06: after the murders were effectively committed, but before Katala was seen on video at 1054. [02:05:24] Speaker 06: During that time, after 1003, there were additional attacks on the Americans at the special mission that both destroyed property and put their lives in danger. [02:05:34] Speaker 06: If you're parsing out the timeline, the Americans were there at around, between 11 and 1115 PM, [02:05:41] Speaker 06: during which militants started shooting back into the special mission. [02:05:45] Speaker 06: The Americans who fled the mission at 1115, the State Department security personnel, came under fire. [02:05:53] Speaker 06: And also the GRS responders who were in Villa C still looking for the ambassador testified that the Villa was struck by a rocket propelled grenade, and that would have been around 1119 or 1120. [02:06:06] Speaker 06: So there was ample evidence, overwhelming evidence that Americans came under attack, their lives were placed in jeopardy after the defendant became involved in the conspiracy. [02:06:21] Speaker 06: And again, the flip side- Sorry, just can I ask one thing? [02:06:27] Speaker 04: Is preventing aid from getting so stopping forces that we're going to try and reinforce [02:06:34] Speaker 04: the mission, preventing them from getting there. [02:06:38] Speaker 04: Would that be in a form of an offense against an American? [02:06:42] Speaker 04: Get to the Americans are there, they're under fire, they're endangered. [02:06:46] Speaker 04: As efforts to stop the jury found his efforts to stop. [02:06:50] Speaker 04: Reinforcements people to protect and save them from getting there. [02:06:56] Speaker 04: Just curious. [02:06:58] Speaker 06: I hadn't thought of that question. [02:07:00] Speaker 06: It's certainly a form of aiding and abetting, and it's a form of conspiracy. [02:07:04] Speaker 06: It adds to conspiracy liability, whether it's its own offense against an American. [02:07:09] Speaker 06: I mean, it certainly contributed to the Americans' risk from the attack from the militants outside who were shooting in and their inability to be protected by these first responders. [02:07:26] Speaker 04: Sorry, I didn't mean to interrupt. [02:07:27] Speaker 04: I just was trying to think that through. [02:07:29] Speaker 06: I just want to, you know, the flip side of it, what Katala has proposed is that he just inexplicably shows up with an AK-47 at 1154 at night, leading his troops with Al-Amam, with Dajawi. [02:07:46] Speaker 06: Dajawi had been part of the first wave of the attack on video at 9.45 PM. [02:07:51] Speaker 06: Al-Amam, he had this 18-minute call [02:07:54] Speaker 06: that ended at 1102 p.m. [02:07:57] Speaker 06: He's just inexplicably shows up with these men appearing to lead his troops, you know, this follow me sign he gives as they leave with, you know, and that the jury based on that alone found him culpable of [02:08:12] Speaker 06: you know, conspiracy, providing material support, and destroying the special mission. [02:08:18] Speaker 06: And that, you know, based on that alone, they found him guilty because the talk was a dwelling. [02:08:26] Speaker 06: It's true that there was extraordinarily brief testimony by Agent Oven that he slept there and maps of the talk introduced. [02:08:34] Speaker 06: But throughout, that was not discussed [02:08:36] Speaker 06: at closing at all, like not mentioned a single time by either party. [02:08:41] Speaker 06: And second, the testimony throughout trial focused on the tox status as an office. [02:08:46] Speaker 06: It was the secured office that contained highly sensitive documents and computers. [02:08:53] Speaker 06: It was where Agent Henderson was staged throughout the attack, watching the attack on camera as it unfolded in the secured office. [02:09:01] Speaker 06: And they called it the Tactical Operations Center or the office. [02:09:05] Speaker 06: unlike say Villa C where they described the bedrooms where Ambassador Stevens and Sean Smith were asleep at the time they were murdered, the bedrooms in Villa B where several of the agents shelter during this attack, there's just no chance whatsoever that the jury convicted Katala on count 16 [02:09:29] Speaker 06: based on a finding that he randomly joined this conspiracy at 1154 PM and that the talk is guilty because the talk was a dwelling, not because he joined earlier and put American's lives in danger. [02:09:44] Speaker 06: And thus the defendant cannot meet his burden on prong three. [02:09:48] Speaker 06: And then finally on prong four, whether there's a miscarriage of justice that the court should recognize [02:09:56] Speaker 04: I guess I'm sorry, just one more thing I wanted to clear up. [02:10:03] Speaker 04: Even if the initial assault on the villa, the dwellings was before, at least Mr. Catala was physically on the scene of the mission. [02:10:14] Speaker 04: Do we know whether those, there was continued, I don't know what it means to injure a building, but continued injury to the, those dwelling buildings and villas? [02:10:24] Speaker 04: afterwards or were they already sort of burned to the ground at that point? [02:10:29] Speaker 06: So the building inside the special mission was Villa C that was lit on fire. [02:10:34] Speaker 06: There was this separate building where the quick response force lived that no one was particularly focused on. [02:10:42] Speaker 06: It was burned to the ground. [02:10:43] Speaker 06: That, I think, was a smoldering. [02:10:45] Speaker 04: Do we know that it was burned to the ground before Patala was physically on the scene? [02:10:49] Speaker 04: Even if you don't start the fire, you could still, I assume, [02:10:53] Speaker 04: damage or injure a building by either preventing a fire from being put out or contributing, throwing more fuel on the fire or something like that. [02:11:01] Speaker 06: So I don't recall what the status of- There wasn't evidence like that before the jury. [02:11:08] Speaker 06: None of this was discussed before the jury. [02:11:12] Speaker 06: As far as Villa Seagos, there was extensive evidence that it was still on fire throughout the course of the attack. [02:11:18] Speaker 06: It was not burned to the ground. [02:11:19] Speaker 06: All of the agents on scene made multiple attempts at extraordinary risk to their own lives to find Sean Smith and Ambassador Stevens. [02:11:31] Speaker 06: Agent Wickland went in four or five times, almost passing out and dying in an attempt to rescue Sean Smith and Ambassador. [02:11:41] Speaker 06: Stevens, the other agents also made multiple attempts. [02:11:45] Speaker 06: And the testimony was that the building was incredibly hot on fire. [02:11:51] Speaker 06: There was this incredibly thick smoke. [02:11:53] Speaker 06: So yes, the building was smoldering, I think, or on fire throughout the course of the attack. [02:11:58] Speaker 06: But again, I don't think any reasonable understanding of the juried verdict would find that Katala [02:12:07] Speaker 06: somehow contributed to the destruction of the dwelling without putting Americans lives at risk by preventing them from putting the fire out. [02:12:17] Speaker 06: I mean, if he joined this assault, [02:12:19] Speaker 06: after the fires were set, after which Americans' lives were put at risk, or after which the building continued to burn, Americans' lives were at risk at that time because they kept trying to go into the building to save Ambassador, or to find Ambassador Stevens and Sean Smith. [02:12:36] Speaker 04: Is an attack on, I mean, I mentioned my home earlier, but is an attack on a governmental building that is a dwelling, a barracks or something like that? [02:12:47] Speaker 04: Is that an offense against an individual American? [02:12:54] Speaker 04: Because it's not like I own my home, that would be offense against me. [02:12:58] Speaker 04: But I would consider it an offense against an American to attack government. [02:13:04] Speaker 04: Someone attacks a prison or something where people obviously live. [02:13:09] Speaker 04: But there's nobody there. [02:13:10] Speaker 04: It's just been built, but there's nobody there. [02:13:11] Speaker 04: That would be an offense against someone who's about to move in. [02:13:17] Speaker 06: I don't know the answer to that, Your Honor. [02:13:19] Speaker 06: The facts established that some of these bedrooms, Ambassador Stevens, was not his permanent bedroom. [02:13:26] Speaker 06: He was visiting the mission and was there for a week. [02:13:29] Speaker 06: Others, like Sean Smith, were on temporary duty assignment and were permanently stationed at the mission. [02:13:34] Speaker 06: And this was his bedroom where he lived. [02:13:37] Speaker 04: But is a destruction of it an offense against, I don't know if it'll be a crime against individuals since they don't own it. [02:13:43] Speaker 04: They're assigned there to that dwelling by the government. [02:13:47] Speaker 04: I mean, if they're there, it could be an offense against them. [02:13:50] Speaker 04: Under your theory, this was about their lives being in jeopardy, for sure. [02:13:53] Speaker 04: I'm just talking about the dwelling issue. [02:13:56] Speaker 06: And it destroys their belongings that are presumably in their bedroom. [02:14:01] Speaker 06: I mean, it's an offense against their own property. [02:14:04] Speaker 04: That would apply to a non, for some reason, the government, the statute comes out dwelling because an attack on an office building is going to destroy [02:14:12] Speaker 04: people's personal possessions as well. [02:14:14] Speaker 04: So there's something about dwellings that Congress thought was different. [02:14:17] Speaker 06: But again, that's the separate statute. [02:14:20] Speaker 06: So 1363 may be focused on protecting dwellings and lives. [02:14:25] Speaker 04: Yeah, I'm just trying to figure out if we thought for some reason that if we couldn't foreclose a reasonable possibility that the jury focused on dwelling here rather than [02:14:37] Speaker 04: the lives and any any life in jeopardy prong, whether you could still say that would satisfy the against an American for the jurisdictional purposes. [02:14:50] Speaker 04: I don't know if it'll be an offense against an American. [02:14:57] Speaker 06: It's been a long argument and I'm not sure I'm prepared to ask that question at this point. [02:15:03] Speaker 06: I think it's fair to say that there's no reasonable probability that the jury here found this problem that dwelling or a life put in danger. [02:15:14] Speaker 06: but would not have found that the offense was committed against an American for all of the factual reasons I've discussed about all the times during the course of this offense when Americans' lives were placed in jeopardy. [02:15:32] Speaker 06: And if there are no further questions, we would ask that the judgment be affirmed and the sentence be vacated. [02:15:42] Speaker 04: Questions for my colleagues? [02:15:44] Speaker 04: OK. [02:15:46] Speaker 04: Thank you very much. [02:15:46] Speaker 04: We will let Shekhar Tov talk about both a rebuttal on her arguments and respond to the sentencing arguments. [02:15:58] Speaker 03: If I may, I'll just start where we just left off to keep everyone's train of thought straight. [02:16:04] Speaker 03: I want to make just two forfeiture points. [02:16:07] Speaker 03: The government has said maybe the jury didn't have to find this against American element at all. [02:16:12] Speaker 03: And maybe in response to Judge Katz's and Judge Millett's questions, maybe against a dwelling really is against an American. [02:16:20] Speaker 03: But that's not in their briefs anywhere. [02:16:21] Speaker 03: These arguments are forfeited. [02:16:23] Speaker 03: I don't think that's a proper basis for the court to make a resolution on this. [02:16:28] Speaker 03: on this question. [02:16:30] Speaker 03: I think the government might also have been alluding to a miscarriage of justice from four issue. [02:16:35] Speaker 03: But again, that's also not in their reach. [02:16:36] Speaker 03: And so I don't see how this court can resolve this question on that ground. [02:16:40] Speaker 03: And in terms of whose lives were put in danger, or actually, let me take a step back. [02:16:44] Speaker 03: I would also just want to address or reiterate the applicable standard here. [02:16:49] Speaker 03: Our role is not to be able to show that beyond doubt or extremely likely or whatever the jury found XYZ. [02:16:55] Speaker 03: Our job is to say, is there any reasonable probability that the jury would have reached a different outcome had they been instructed that they had to find that American lives were put in danger? [02:17:06] Speaker 03: And I think just the fact that they could have found a dwelling is what caused the aggravated offense. [02:17:11] Speaker 03: And the government doesn't dispute that that's not against an American. [02:17:13] Speaker 03: Just that alone is going to meet the standard. [02:17:17] Speaker 03: But again, we've given an extensive discussion of the facts about why we think that the best reading of the jury's verdicts are to conclude that Mr. Katala joined after the first wave of the attack had ended and when the second wave had begun after all the Americans had left. [02:17:35] Speaker 03: Whose lives could have been put in danger? [02:17:38] Speaker 03: Well, as we said, if it wasn't a dwelling and that's not what the jury concluded, although I think that is the best reading of the jury's verdicts. [02:17:46] Speaker 03: Well, in addition to the guards, there were also everyone there. [02:17:50] Speaker 03: I mean, we saw, for example, Dijoui pouring gasoline on mission vehicles, supposedly Dijoui, that puts lives in danger. [02:18:01] Speaker 03: Often in these conspiracy cases, [02:18:05] Speaker 03: You have vicarious liability for a bystander being shot or someone else in the conspirator being shot. [02:18:11] Speaker 03: There's nothing crazy to think or nothing crazy about thinking. [02:18:16] Speaker 03: The jury might have concluded that the militants' own lives were going to be in danger. [02:18:20] Speaker 03: So there are lots of options here that don't allow the government to show, that don't foreclose the possibility that there's a reasonable probability that the jury would have reached a different verdict if it hadn't been for this missed instruction. [02:18:35] Speaker 03: And I wanted to just address quickly some of the facts that the government brought out. [02:18:42] Speaker 03: And the government said that Mr. Katala admitted to a call with February 17 commander with the law leading into Manning roadblocks and that shows that maybe he joined the attack before all the Americans left. [02:18:56] Speaker 03: Well, if the jury credited all of that testimony, then it's really hard to understand why they wouldn't have convicted him of the murders, because the government's theory at trial is that by issuing these, you know, quote unquote stand-down orders and by, you know, manning this quote unquote roadblock and turning away first responders, that that caused the deaths of Ambassador Stevens and John Smith, because help would have been rendered sooner if not for that conduct. [02:19:30] Speaker 03: And the government also says, you know, around 1110 or 1115, Americans came under fire. [02:19:37] Speaker 03: So that's after the first wave of the attack commenced, but before the second wave of the attack commenced. [02:19:42] Speaker 03: And Americans were still there then. [02:19:45] Speaker 03: Well, there's no evidence that anyone involved in Mr. Katala's circle or his alleged group of co-conspirators are the ones who pulled the trigger there. [02:19:53] Speaker 03: So if the government theory is, well, the only reason the jury didn't [02:19:56] Speaker 03: convict on, you know, counts three through 15, sorry, yeah, three through 15 is because we don't know who set the fire. [02:20:03] Speaker 03: Well, the same logic would go here or would apply here. [02:20:06] Speaker 03: We don't know who pulled the trigger. [02:20:07] Speaker 03: So why would the jury have concluded that Mr. Katala's conspirators pulled the trigger? [02:20:13] Speaker 03: But I guess stepping back again, that's just not a theory that was ever discussed before the jury. [02:20:18] Speaker 03: The government didn't discuss it. [02:20:20] Speaker 03: The defense didn't discuss it. [02:20:21] Speaker 03: And so there's really, you know, while it's logically possible the jury reached the verdicts it did on that theory, it's just, it's not particularly likely. [02:20:29] Speaker 03: And it's not, it's not particularly even plausible given the absence of any argument about this. [02:20:33] Speaker 03: And it's certainly not plausible, so plausible or so compelling that there's not a reasonable probability to think that that's not the basis that they reached their verdicts on. [02:20:42] Speaker 03: A judge, just last thing, Judge Millett asked, is stopping aid and offense against an American. [02:20:48] Speaker 03: I think sort of an antecedent issue is, well, you know, even if it were, the jury acquitted of that effectively, right, on the theory that I mentioned earlier, which is that if Mr. Katala indeed had this call with Bilal at 1110 saying, you know, withdraw your men, and he was stopping aid left and right, [02:21:07] Speaker 03: it's just completely unclear how they possibly could have acquitted Mr. Katala of the murders, because the government's theory was the stand-down orders and this interference with first aid is what contributed to these deaths. [02:21:21] Speaker 03: And the government just acknowledged on an aiding and abetting theory, he would be responsible. [02:21:26] Speaker 03: So I don't think that that's what the jury likely concluded. [02:21:30] Speaker 04: And there's a lot of reason- The defense against an American for purposes of section seven [02:21:36] Speaker 04: I assume would include conspiring to harm them, even if you don't, for purposes of counts one and two, even if you don't actually succeed because someone else did it before you got there. [02:21:51] Speaker 04: We don't know that it was you that did it with someone else. [02:21:53] Speaker 04: But the conspiracy itself, I would think, would be for counts one and two, would that not be an offense against an American? [02:22:01] Speaker 03: I think maybe it could, but the point is that the best understanding of the jury's verdict is that he joined the conspiracy after all Americans had left. [02:22:11] Speaker 03: And so there's just no way to rule out the probability or the possibility that the jury did not believe that he conspired to harm Americans or that his conspiracy was targeting Americans. [02:22:27] Speaker 03: or sorry, that he conspired to injure Americans, that when he joined the conspiracy, injuring Americans was on the table, was the goal. [02:22:37] Speaker 04: So I'm having trouble hearing your last sentence. [02:22:40] Speaker 03: I'm sorry, that at the time that he joined the conspiracy, that injuring Americans was on the table, because at that time, they had all left. [02:22:48] Speaker 03: I don't think that there's any theory that he joined the conspiracy [02:22:51] Speaker 03: at 1143 p.m. [02:22:54] Speaker 04: intending to injure Americans, and then, you know, advanced the material support counts and they were going there getting the guns and organizing this whole thing and then you know there were lots of militias and living at the time and more than one. [02:23:09] Speaker 04: militia there on the ground of the mission and so couldn't they have found if they found that can speak this conspiracy and count one and two doesn't that suggest that would have been a basis under 1363 for having found that are for bringing in section seven and chain 63 the jurisdictional element that there would have been. [02:23:28] Speaker 04: An offense against an American, even if they at the end of the day, the jury couldn't find beyond a reasonable doubt that they. [02:23:36] Speaker 04: actually were responsible for the murders that happened? [02:23:40] Speaker 03: No, I don't think so. [02:23:41] Speaker 03: I mean, I think maybe what you're getting at is Judge Katz's theory that one way to read the verdicts is that his convictions on count one, two, 16, and 18 did assume that he participated in the first wave of the attack and just other attackers are the ones that set the fire. [02:24:00] Speaker 03: And my view is that, yes, that is a logically possible way of reading the verdicts. [02:24:04] Speaker 03: but the best way by far of how to understand the verdict is that counts one to 16 and 18 are all premised on his conduct starting at 1143. [02:24:14] Speaker 04: I'm just I'm asking the predicate section seven question. [02:24:17] Speaker 04: I guess wrapped up in 1363 but just as the section section seven jurisdictional question if there could be a conspiracy would be an offense against an American for purposes of section seven even if [02:24:32] Speaker 04: At the end of the day, that conspiracy, the jury didn't find that that conspiracy is the one that actually resulted in physical harm to Americans, but they still have an offense against an American just by conspiring to harm them. [02:24:46] Speaker 03: But he was acquitted of that conspiracy. [02:24:51] Speaker 04: If you think of the material support, [02:24:53] Speaker 03: Right, and the material support, he was acquitted of causing death. [02:24:57] Speaker 04: And so I understand- Offense against an American doesn't require death. [02:25:01] Speaker 03: Right, I agree, but I would understand the acquittal of causing death to mean that he was acquitted of providing material support while, during the first wave of the attack, i.e. [02:25:10] Speaker 03: when there were Americans present, because you could not acquit of causing death, in my view, or it's highly unlikely that Jerry would have acquitted of causing death if he provided material support at the beginning of the- It could have inspired to cause harm. [02:25:21] Speaker 04: They could have found that they did a conspiracy and the conspiracy caused harm, which would be an offense against an American. [02:25:27] Speaker 03: But no, I mean, yes, but to acquit my, I guess what I'm trying to say is, yes, I agree. [02:25:34] Speaker 04: But putting on death doesn't mean you've acquitted on harm. [02:25:39] Speaker 03: Well, I guess here I would agree. [02:25:41] Speaker 04: Americans that were injured but did not die here. [02:25:44] Speaker 03: Right, I guess here I would disagree on the facts. [02:25:46] Speaker 03: I agree with you in the abstract. [02:25:49] Speaker 03: What you're saying is completely right. [02:25:50] Speaker 03: I just think here, on the factual record before the jury, there is no way to equip Mr. Vitale of causing death. [02:25:56] Speaker 03: But yet, nonetheless, think he harmed Ambassador Stevens or threatened harm to Sean Smith. [02:26:01] Speaker 03: Because if there was sort of no distinction, the fires were set and they died. [02:26:06] Speaker 03: So if he had any contribution to that, [02:26:09] Speaker 03: then he's responsible for their deaths under the Pinkerton conspirator liability theory. [02:26:15] Speaker 03: So what I'm trying to suggest is that the best way to parse these verdicts, to understand these verdicts, is that the jury, the only sort of rational or reasonable or most plausible, at least, way to understand these verdicts is that the jury concluded that he was guilty beyond a reasonable doubt only for stuff that occurred once he was captured on video. [02:26:36] Speaker 03: And that is after all the Americans left the Bronx. [02:26:44] Speaker 03: There are no further questions on that. [02:26:46] Speaker 03: I would move to a spreadsheet issue. [02:26:54] Speaker 04: Let's go quickly on your other affirmative arguments because [02:26:58] Speaker 04: It will be a longer battle otherwise. [02:26:59] Speaker 04: But the point of a lot of the time here is to let you make an affirmative argument about the cross appeal. [02:27:05] Speaker 04: So you can make a quick comment, as you wanted, I guess, about the telephone records. [02:27:12] Speaker 03: I'm happy to do it and whatever. [02:27:14] Speaker 03: I can try to do the spreadsheet and the crime and violence very quickly if that would work for you. [02:27:20] Speaker 03: Okay, on the spreadsheet, the government raised two arguments or said, you know, really argument about, well, this is a self-authenticating record. [02:27:26] Speaker 03: And so, you know, you just need to put it before the jury. [02:27:30] Speaker 03: The statute is quite clear that what authenticates the record is the certification. [02:27:34] Speaker 03: And that was not before the jury. [02:27:35] Speaker 03: So it's just not self-authenticating without that certification. [02:27:39] Speaker 03: There's absolutely no law suggesting that [02:27:41] Speaker 03: the fact that you have a certification that you've previously shown it to the judge renders the records that are supposed to be accompanied by the certification themselves self-authenticating. [02:27:52] Speaker 03: I also just want to distinguish for purposes of 901 and the statute, I want to try to illuminate the distinction that I think is quite important, this distinction between admissibility and conditional relevance. [02:28:03] Speaker 03: And I agree that admissibility [02:28:05] Speaker 03: is a question that is determined by the judge. [02:28:07] Speaker 03: That's what 104A is about. [02:28:09] Speaker 03: That's in part what 3505 discusses. [02:28:12] Speaker 03: Admissibility are things like hearsay or other things that are legal questions that don't go to relevance. [02:28:24] Speaker 03: Or maybe 403, is this more prejudicial than not? [02:28:27] Speaker 03: These are legal questions that the judge decides. [02:28:30] Speaker 03: And hearsay is part of 3505. [02:28:32] Speaker 03: So the vast majority of 3505, or the first part of 3505 is talking about hearsay. [02:28:39] Speaker 03: These are the things that render this not hearsay. [02:28:42] Speaker 03: So that's admissibility. [02:28:44] Speaker 03: That's under 104A. [02:28:45] Speaker 03: That's decided by the judge. [02:28:47] Speaker 03: Authenticity is conditional relevance. [02:28:48] Speaker 03: That's under 104B. [02:28:49] Speaker 03: That goes before the jury. [02:28:50] Speaker 03: There is nothing in 3505 suggesting [02:28:53] Speaker 03: that authentication doesn't need to go before the jury. [02:28:56] Speaker 03: I agree that predicates of hearsay generally do not need to go before the jury, that once an admissibility question is decided, it does not need to go back before the jury. [02:29:05] Speaker 03: But on things about relevance, that is about ultimate evidence, evidentiary decisions that the jury needs to make, [02:29:11] Speaker 03: establishing predicate relevance. [02:29:14] Speaker 03: And so that that needs to go before the jury. [02:29:16] Speaker 03: And then lastly, I just wanted to clarify what our challenge is, because I think there was some confusion. [02:29:21] Speaker 03: Our challenge is to the admission of the spreadsheet period, because that specifically because what the judge said is I am admitting this without without any need to connect this up later because you made a showing pretrial that that suffice on authentication. [02:29:38] Speaker 03: That is the error. [02:29:38] Speaker 03: Now, if the judge had said instead what you were kind of alluding to Judge Millett, you know, hey, you made this, this free trial authentication showing that is enough. [02:29:47] Speaker 03: If you introduce that at trial, if you connect that up later, that's enough. [02:29:50] Speaker 03: So I'm going to introduce this subject to connection. [02:29:52] Speaker 03: That's what judges routine district judges routinely do, but that's not what he then if that had been what happened, then, then we would have raised another challenge later on saying, you know, this isn't enough. [02:30:03] Speaker 03: They didn't connect it up. [02:30:04] Speaker 03: And that would be what we're arguing now. [02:30:06] Speaker 03: But the error was admitting it initially because the judge said he was admitting it because of the pretrial showing. [02:30:15] Speaker 03: And then the judge didn't later withdraw it from the jury, even though the government had not provided a sufficient basis for authentication. [02:30:24] Speaker 03: So I guess there are really those two errors. [02:30:27] Speaker 03: admitting it and then allowing the jury ultimately to consider it because it had this pretrial hearing when actually there was never sufficient evidence of authentication introduced before the jury. [02:30:38] Speaker 03: And then finally, with the crime of violence, I did just want to talk really briefly about divisibility because we've all sort of been assuming that the statute is divisible, but I think that the first issue is that it's really not. [02:30:50] Speaker 03: There are multiple reasons to see that. [02:30:51] Speaker 03: First, the same punishment here is given for conspiracy. [02:30:55] Speaker 03: and all of these other kinds of ways of violating the statute. [02:30:59] Speaker 03: The Supreme Court of Mathis has suggested that if there are different punishments, that can show there are different crimes under, but here, they're not. [02:31:09] Speaker 03: There was no unanimity instruction given to the jury, and the jury was told, this is the first element. [02:31:13] Speaker 03: These are all ways of finding the first element. [02:31:16] Speaker 03: And here on the indictment, [02:31:19] Speaker 03: Three alternatives were listed so you know is injuring attempting to injure and destroying and you know there's no textual distinction between injuring attempting to injure destroying and conspiring and so. [02:31:33] Speaker 03: You know, you have to treat these all the same, so the Supreme Court has said, if you're doing a whole laundry list of things that's an indication that these are means. [02:31:41] Speaker 03: And so certainly we have to say that at least injuring, destroying and attempting to injure our means. [02:31:45] Speaker 03: And it would be very strange given the lack of textual, you know, setting off of conspiracy to say, well, but conspiracy is a different element. [02:31:52] Speaker 03: And then to discuss just really briefly the notion that the Pinkerton instruction applied to everything are the best way for the jury to understand what this conspiracy language meant was to think that actually the judge was just instructing that Mr. Katala needed to have someone else complete the offense. [02:32:14] Speaker 03: I just don't think that's plausible. [02:32:17] Speaker 03: Specifically, you know, as Judge Katz has noted, these are in totally different parts of the opinion. [02:32:22] Speaker 03: One, one section where the judge explains Pickerton liability is with respect to all counts three through 18, basic, you know, not one and two, but three through 18. [02:32:32] Speaker 03: This language conspiracy just appears in this count. [02:32:35] Speaker 03: and it appears under the heading, you know, this is the first element. [02:32:39] Speaker 03: There's just no indication here to think that, you know, this is actually a reference back to this, you know, not actual, not committing a conspiracy, but vicarious liability through conspiring when someone else committed the complete offense and the government. [02:32:54] Speaker 01: I had started with you on this point, but what's wrong? [02:33:03] Speaker 01: So I thought, [02:33:05] Speaker 01: First, I thought the word conspiracy here is really a cipher. [02:33:09] Speaker 01: So what's the jury gonna do with it? [02:33:12] Speaker 01: And the answer is probably nothing unless they're smart enough to read the instructions as a whole and connect up this word to conspiracy to all the conspiracy instructions in count one, right? [02:33:25] Speaker 01: But if they're smart enough to do that and read the instructions as a whole, [02:33:34] Speaker 01: including the forward cross referenced in three through 16, I'm going to tell you about Pinkerton liability later and then the later discussion of Pinkerton liability. [02:33:49] Speaker 01: Why wouldn't you naturally understand this [02:33:54] Speaker 01: or participated in a conspiracy to injure as just a shorthand cross-reference forward to the Pinkerton instruction? [02:34:05] Speaker 03: Well, I guess for a couple of reasons. [02:34:07] Speaker 03: The first is, you know, there, like, this is not a, there's no express cross-reference, first of all. [02:34:14] Speaker 03: Second of all, there's a distinction between the definition of a conspiracy and the instruction defining a conspiracy, and then the subsequent instruction saying, [02:34:21] Speaker 03: And you can also find everyone guilty of this other substantive offense, if they conspire and someone else completes that offense. [02:34:28] Speaker 03: That's very different from saying, you know, just, you are guilty, or this person is guilty if he conspires and that's what that actual language says it doesn't say and also, and actually doesn't even really make sense to say. [02:34:40] Speaker 03: you know, we're sort of cross-referencing to suggest that there's this vicarious liability addition, but only if someone else, you know, completes the offense. [02:34:50] Speaker 03: It's actually inconsistent with the instruction. [02:34:52] Speaker 03: The instruction just says, full stop, you are guilty if you conspire. [02:34:56] Speaker 03: And, you know, the government says, well, it's also compelling that it didn't define the constituent elements of what, you know, conspiracy is. [02:35:02] Speaker 03: But actually, that to me just makes it even more likely that the jury did not understand this to refer up to, you know, this Pinkerton instruction. [02:35:10] Speaker 03: Conspire has a natural meaning. [02:35:12] Speaker 03: It means agree. [02:35:13] Speaker 03: If you read these instructions, it pretty much sounds like destroy, injure, agree with someone else, or aid someone else. [02:35:22] Speaker 03: And that has a meaning. [02:35:23] Speaker 03: It's also, again, it's under the heading first element. [02:35:25] Speaker 03: That just doesn't really make sense. [02:35:28] Speaker 03: Vicarious liability is not a first element. [02:35:30] Speaker 03: It is not an element at all. [02:35:31] Speaker 03: It's this additional supplemental theory of liability that goes once all the other elements are met. [02:35:37] Speaker 03: So it just doesn't really work to say, well, hey, if you conspire, [02:35:40] Speaker 03: and you meet these other elements, well, we're also actually now going to read this instruction several pages, many pages before to actually say, nope, that was wrong. [02:35:49] Speaker 03: We now have to cabin this and only apply this if someone else completed the offense. [02:35:54] Speaker 03: I just don't think that there's sufficient legal certainty here to conclude that that's what the jury necessarily legally was required to do. [02:36:04] Speaker 04: If you have more on your affirmative case, can you turn to the sentencing now? [02:36:09] Speaker 03: Okay, thank you. [02:36:13] Speaker 03: The district court calculated the applicable guidelines, considered all the 35A, 53A factors, and varied downward in light of Mr. Katala's acquittals. [02:36:21] Speaker 03: And the sentence was substantively reasonable. [02:36:23] Speaker 03: I wanted to address a couple of things. [02:36:26] Speaker 03: The first thing is Mr. Leonard talks about how this was an extraordinary variance of multiple decades. [02:36:31] Speaker 03: But I just want to be clear in practice, that's just not correct. [02:36:34] Speaker 03: Mr. Katala was 47 when he was sentenced. [02:36:37] Speaker 03: He's 50 now. [02:36:38] Speaker 03: a life sentence here when you take into account his life expectancy and how that's reduced for someone who spent literally decades of his life in prison or will spend his life in prison. [02:36:51] Speaker 03: I don't think his life expectancy is greater than the time he would be out under a 22-year sentence. [02:36:59] Speaker 03: Under a 22-year sentence, he's expected or he should get released when he's 65. [02:37:05] Speaker 03: his life expectancy is likely much lower than that. [02:37:08] Speaker 03: And even if you think, oh, he'll be statistically likely to, he'll beat the odds to live a few more years longer than that. [02:37:14] Speaker 03: We're just not talking about an extraordinary variance here. [02:37:16] Speaker 03: We're talking about a variance of the kind that we see every single day in district court. [02:37:22] Speaker 03: And that's basically never appealed. [02:37:24] Speaker 03: And if it is appealed usually by the defense, we always lose. [02:37:28] Speaker 03: So the reason why this case is being appealed, I think, and why this is, [02:37:33] Speaker 03: You know such an issue is because it's a terrorism case, but terrorism cases aren't so you know are governed by the same substantive reasonableness standard that this court set out in Gardalini that the Supreme Court set out in gall, and that requires a degree of deference, a substantial degree of deference. [02:37:49] Speaker 03: to the careful balancing of the 3553A factors done by the district court. [02:37:55] Speaker 03: And here the government doesn't dispute that the district court was allowed to factor in the jury's acquittals. [02:38:01] Speaker 01: What's weird about this case is the district court left to its own devices to apply the 3553A factors would have been [02:38:15] Speaker 01: completely with the government on this. [02:38:18] Speaker 01: And the only reason the court is feeling constrained to do something very different is this idea of acquitted conduct. [02:38:27] Speaker 01: But like you say, regardless of the acquitted conduct, it still is a terrorism case. [02:38:34] Speaker 01: And when you back out the cause death element, [02:38:38] Speaker 01: Because it's a terrorism case, the terrorism enhancement is doing a lot of work, plus 12 in category six. [02:38:46] Speaker 01: And any way you look at it, if that terrorism enhancement is in the case, this sentence is way above the one that he received. [02:38:57] Speaker 03: Well, a couple of things, Your Honor. [02:39:00] Speaker 03: First, just to respond to [02:39:03] Speaker 03: the reason, the entire reason that he gave. [02:39:06] Speaker 03: I don't think it was simply about the jury's acquittals. [02:39:09] Speaker 03: He did explain that, or sorry, to respond to your question about, you know, did he feel entirely backed into a corner except for the acquittals? [02:39:16] Speaker 03: I don't think that's exactly right. [02:39:17] Speaker 03: He did specifically say that he wasn't comfortable, or he's particularly uncomfortable stacking the sentences [02:39:23] Speaker 03: for count one, two, and 16, because they all were premised on the same conduct and the same property offense. [02:39:30] Speaker 03: And that's just an independent basis for saying, you know, I'm really not comfortable with how the sentence is turning out. [02:39:36] Speaker 03: I also, I don't, he didn't, he did say, you know, I think this would be fairly easy without the acquittals, but he didn't say what the sentence he would have given was. [02:39:44] Speaker 03: I mean, he didn't say specifically, there's no chance I would vary. [02:39:47] Speaker 03: There's no chance I would take into account these other factors that I've [02:39:51] Speaker 03: that I've already described at great length that also weigh in Mr. Katala's favor. [02:39:57] Speaker 03: But I guess to address the terrorism enhancement, a couple of things about that. [02:40:02] Speaker 03: Number one, the government isn't suggesting, and it's not correct, that the district court was required to recalculate the guidelines without the murders and then [02:40:15] Speaker 03: explain the precise variance from that number. [02:40:17] Speaker 03: It was permitted to take out the, you know, to calculate the guidelines as it was required and then vary from there and fashion a sentence that it believed appropriately balanced the 3553A factors. [02:40:29] Speaker 03: And it's other reasons for finding that a life sentence was inappropriate. [02:40:34] Speaker 04: Let me ask you about that. [02:40:35] Speaker 04: So as to the, just taking as given, because this is the government's appeal, it's sort of 30 to life range if we back out the acquitted conduct. [02:40:43] Speaker 04: On the discretionary set aside the 10, this is where he can exercise his discretion that we're all talking about, the 3553 discretion. [02:40:52] Speaker 04: And yet he ends up with from 30, even if he were at the bottom of the variance, from 30 down to 12, which is less than half of that time period. [02:41:03] Speaker 04: What reasons can you point me to, so now equated conducts off the table, we've already addressed that, [02:41:12] Speaker 04: Where can you point me to the opinion where he sufficiently explained the exercise of discretion that would get from for present purposes will say 30 to 12 or less than half of the non acquitted conduct. [02:41:26] Speaker 04: Sure. [02:41:27] Speaker 03: Well, three things. [02:41:29] Speaker 03: First, I want to make clear, I guess Judge Rau might argue this the other way, but he did make clear that this was a package. [02:41:37] Speaker 03: He thought that 22 years was the appropriate sentence for all the conduct period. [02:41:41] Speaker 03: So I think it's not quite right to separate out the 12 years and the 10 years because he wanted to impose a 20- He has no discretion over that 10 years. [02:41:49] Speaker 04: And if you try to blend it in, then it seems like at some level you're diluting [02:41:54] Speaker 04: 924c sentence if you're kind of borrowing from that to up the discretionary ones. [02:41:59] Speaker 04: So really just let's just let's just put the 10 years aside for purposes of my question if you're able if it's not a fair way of asking the question and let me know just to the things where there's no dispute there's discretion. [02:42:13] Speaker 04: Okay well I guess at the bottom you're still even from 30 down to 12 is a pretty big [02:42:19] Speaker 04: variance. [02:42:20] Speaker 04: And what I saw, and tell me just what I missed, what I saw was less concern about recidivism, credited the defense argument on that. [02:42:30] Speaker 04: And then he had this sort of mixed bag thing where he said, you know, you've had this life of violence due to conditions in Libya and oppressive regime and being in prison, but then being the head of this terrorist group, [02:42:47] Speaker 04: On the other hand, you seem to be hardworking and have good family support. [02:42:53] Speaker 04: How does that justify a variance less than half, if we take the 30 as the absolute minimum, just for these purposes? [02:43:02] Speaker 03: Right. [02:43:02] Speaker 03: Well, he also described that he felt that it was inappropriate or very unfair to stack the sentences on the on the property counts because it was promised on the same. [02:43:11] Speaker 04: Not stacking is still how you just get from 32. [02:43:14] Speaker 04: We're very down from 30 to 12. [02:43:16] Speaker 03: That's 30 would require the stacking because the maximum on these. [02:43:19] Speaker 03: 30 would require stacking because the maximum on these counts is 15 years. [02:43:23] Speaker 03: Actually, I'm sorry the maximum on the first two counts I think it's 15 in the second, and that's sorry and 16 is 20. [02:43:29] Speaker 03: So, he needs to stack in order to give anything above 20. [02:43:33] Speaker 03: And he made clear that he felt that that was not [02:43:36] Speaker 03: appropriate. [02:43:37] Speaker 03: But I need to step back a little bit. [02:43:39] Speaker 03: I think that, I guess, two things. [02:43:42] Speaker 03: I think it's not quite right that by subtracting out the acquitted conduct, all we do is subtract out the murders. [02:43:49] Speaker 03: The judge was very clear that he was sentencing based on the culpability and the conduct as assessed by the jury. [02:43:57] Speaker 03: And I think that he made clear that [02:44:01] Speaker 03: that you could reach the same guidelines result logically without determining that the jury, or sorry, without necessarily relying on facts, the jury necessarily rejected. [02:44:13] Speaker 03: But I think that when he, the best way to read the sentencing is that he thought that the jury did not find that Mr. Katala had engaged in terrorism. [02:44:21] Speaker 03: And I think there are reasons why that is actually a legitimate interpretation of the jury's verdicts. [02:44:28] Speaker 03: and one that he was entitled to make, the government doesn't dispute that he's entitled to parse the jury's verdicts as he can. [02:44:34] Speaker 05: I think- Mr. Katala was in fact convicted of three counts that are defined by Congress as federal crimes of terrorism. [02:44:46] Speaker 05: That's not, I don't think that that's correct. [02:44:48] Speaker 05: His tutorial support is defined as a federal crime of terrorism as is his 1363 count. [02:44:54] Speaker 05: So federal crime- [02:44:56] Speaker 03: I'm sorry. [02:44:57] Speaker 05: Three, three such counts. [02:44:59] Speaker 05: So how is it reasonable to simply characterize those as property crimes? [02:45:05] Speaker 03: Those crimes are not defined as federal crimes of terrorism. [02:45:08] Speaker 03: They are defined as federal crimes of terrorism if they appear in this list, which they do, and you attribute to the defendant a motive, basically a motive of terrorism. [02:45:18] Speaker 03: I think he had to intend to retaliate against the United States or change something about United States policy. [02:45:26] Speaker 01: All of which the district court found that he did. [02:45:28] Speaker 03: Yes, exactly. [02:45:29] Speaker 03: The district court did make that conclusion. [02:45:30] Speaker 03: There was no doubt about that. [02:45:31] Speaker 03: And that's in part why I think the government is wrong in saying that the district court never considered that this was a crime involving terrorism. [02:45:38] Speaker 05: I mean, he believed that it was. [02:45:41] Speaker 05: As the government pointed out, though, the district court essentially made a U-turn after making those findings, then later simply flipped around and said, well, this is a property crime. [02:45:54] Speaker 05: He said that this is very downward. [02:45:56] Speaker 05: So how is that reasonable in light of what he found during his guidelines, calculations, and even what he discussed in the earlier part of his sentencing explanation? [02:46:08] Speaker 05: How was it reasonable then to vary downward so substantially? [02:46:14] Speaker 03: Well, he's, he's in the first part of his opinion, sorry in his sentence in his guidelines calculation opinion and then the first part of the sentencing. [02:46:22] Speaker 03: He is talking about his conclusions about what the conduct was. [02:46:26] Speaker 03: At the end of the sentence thing he's talking about what he believes the jury assess the defendant's culpability and conduct to be and none of the findings made by the jury. [02:46:36] Speaker 03: Show that Mr Patala was was guilty of a crime of terrorism and the it's true that count one count to that has the word terrorism in the title, but the actual elements of the crime don't involve terrorism. [02:46:48] Speaker 03: The jury never made a determination that Mr. Katala was involved in terrorism and a lot, I mean, a huge amount of the evidence that this was a terrorist crime seems very likely to have been rejected by the jury. [02:46:59] Speaker 03: I mean, so for example, the main evidence on this is these cooperators who say, oh, Mr. Katala hated America or Mr. Katala said, I want to kill more Americans. [02:47:09] Speaker 03: And it's quite clear that the jury rejected the testimony of those cooperators. [02:47:13] Speaker 01: So I think why do you think someone would go into a United States embassy with an AK-47 on the anniversary of September 11? [02:47:25] Speaker 01: What motive would that person likely have? [02:47:28] Speaker 03: Well, I think that if you are assuming that he is one of the first people to breach the gate, maybe you can infer a motive from that. [02:47:36] Speaker 03: And I'm not saying you cannot possibly infer a motive of terrorism from the place where this occurred. [02:47:42] Speaker 03: I'm saying the judge [02:47:43] Speaker 03: had, you know, he made my understanding of the, of the transcript is that he did not believe that the jury credited this. [02:47:50] Speaker 03: And, and so, so I think that you can distinguish between the first wave of the attack where people are gathering and reaching these gates, you know, on, as you say, on September 11th and then what happened later, you know, several hours after that first breaching where the video really looks like people are kind of meandering along. [02:48:08] Speaker 03: I mean, there's a lot of evidence that [02:48:11] Speaker 03: people in Libya carry lots of weapons around. [02:48:14] Speaker 03: I mean, Mr. Katala had a pistol on him when at the time that he was arrested. [02:48:18] Speaker 03: I don't think, I think it's a little bit different than in the United States where it would be very shocking to see someone with such a piece of armor, or sorry, a piece of artillery. [02:48:30] Speaker 03: But here, I don't think you can infer simply from the location given [02:48:36] Speaker 03: given, like I said, that I think that the jury convicted Mr. Katala solely based on its determination that he was there for the second wave of the attack. [02:48:45] Speaker 03: I don't think you can determine that he was necessarily a terrorist or was motivated by terrorism because he came to the mission after it had already been breached, after all this destruction had already occurred. [02:48:58] Speaker 03: So I hope that answers your question. [02:49:02] Speaker 01: Suppose we think that the district courts [02:49:07] Speaker 01: finding that the terrorism enhancement applies is supported by sufficient evidence and not undermined by the jury verdict. [02:49:25] Speaker 01: It's not acquitted conduct. [02:49:27] Speaker 01: Don't we then take as a given [02:49:31] Speaker 01: You know, we look at the district court's sentence in light of both its findings and its explanation. [02:49:37] Speaker 01: And we have that finding that the terrorism enhancement applies. [02:49:43] Speaker 03: I don't think that's right. [02:49:43] Speaker 03: I mean, we're not challenging, right? [02:49:45] Speaker 03: We're not challenging here that the terrorism enhancement applies. [02:49:49] Speaker 03: And the government isn't challenging. [02:49:51] Speaker 01: But then isn't that part of the backdrop against which we evaluate the reasonableness of the sentence? [02:49:57] Speaker 03: That is the backdrop against which you evaluate in so far as it is the guidelines range that the district court varied from. [02:50:04] Speaker 03: But the question here is, how does the district court- No, no, no. [02:50:06] Speaker 01: But the sentence, the ultimate reasonableness of the sentence, which is rendered after the district court has found that the terrorism enhancement applies, that- No. [02:50:20] Speaker 03: I don't think so. [02:50:20] Speaker 03: I think that the district court is distinguishing between saying, I am making this finding. [02:50:27] Speaker 03: But I can rely on facts that the jury did not logically preclude me from making the jury's verdicts do not preclude me from making that I find that the terrorist enhancement applies. [02:50:36] Speaker 03: And the district court is distinguishing between that and here's what I believe the jury's assessment of the conduct and culpability of the defendant was and in that second piece. [02:50:46] Speaker 03: I think that the best reading of the transcript is that he was he was not at that time attributing to Mr Katala, a motive of terrorism and if that's the case, and the government is not disputing that the district court is allowed to parse the verdicts you know I think the government is vigorously disputing that it perserverance that way, but let's assume that I'm right that that is the best reading of the transcript. [02:51:06] Speaker 03: I think that the district court is allowed to understand the conduct that way. [02:51:10] Speaker 03: He was there throughout the trial. [02:51:11] Speaker 03: He would have the best sense of what the jury decided. [02:51:14] Speaker 03: And again, the government isn't disputing that it has that discretion. [02:51:18] Speaker 03: And so if that is, in fact, what the district court understood the jury's critics to be, then I think we're all in agreement that he can assess the conduct, the conduct that he's going to sentence on using that. [02:51:31] Speaker 03: But let's assume you disagree with me. [02:51:33] Speaker 03: You think, you know, [02:51:35] Speaker 03: Either the judge didn't say that he was using this higher guideline range or he was factoring in a motive of terrorism. [02:51:44] Speaker 03: I think this just goes back to my point earlier, which is we're just not talking about that big of a variance in practice. [02:51:51] Speaker 03: Mr. Catala does not have a life expectancy of 30 years at this point. [02:51:54] Speaker 03: He doesn't have a life expectancy of probably anything beyond the actual sentence he got. [02:52:02] Speaker 03: And this is, you know, born out by tables, kept by our government, and then research about what it means to be in prison for years. [02:52:09] Speaker 01: I mean, this is just not the kind of- Sorry, you think 30 to 12, varying from 30 down to 12, [02:52:19] Speaker 01: doesn't count as a substantial variance if the defendant happens to be relatively elderly, so that either one might be near the end of the defendant's life expectancy. [02:52:37] Speaker 03: Well, the, the Senate, the sentence is life, and the life expectancy right is, is, is just not very high. [02:52:44] Speaker 03: So, yes, on paper this is a substantial variance. [02:52:47] Speaker 03: In practice, I don't think it is and the judge was certainly aware of Mr Katala's age. [02:52:55] Speaker 03: I think in practice, the difference between this and the sentences that you see the variances that you see every single day and district court. [02:53:03] Speaker 03: It's just not that meaningful. [02:53:04] Speaker 03: You know the government points to, for example, the Caesar case. [02:53:07] Speaker 03: Well in that case you have I think a 21 year old who [02:53:11] Speaker 03: got a four-year sentence. [02:53:12] Speaker 03: I think, I don't remember what her exact range was, something probably 20-plus years. [02:53:16] Speaker 03: And that is a significant variance in that case. [02:53:19] Speaker 03: Four years is a very short sentence. [02:53:21] Speaker 03: 22 years is a really long sentence, especially for someone who's had the kind of life that Mr. Katala has had, meaning he was in prison for 10 years. [02:53:29] Speaker 03: That already takes five years off his life expectancy. [02:53:32] Speaker 03: He's going to be in prison for another 22. [02:53:33] Speaker 03: That takes another 11 on average. [02:53:35] Speaker 03: And even using otherwise American life expectancy tables, which probably don't apply to someone who grew up in Libya and had the kind of health care and environment that Mr. Patel grew up with, we're just not talking about a really big difference in practice. [02:53:53] Speaker 05: And it does seem peculiar to judge the reasonableness of a sentence based on how long a defendant might happen to live. [02:54:04] Speaker 05: Well, this is actually a method that may live to be 80 or 90 years old, I mean that may not be expected, but it's certainly possible. [02:54:13] Speaker 03: It's possible. [02:54:14] Speaker 03: This is a method that I think that the commission uses. [02:54:17] Speaker 03: I think in general, it assumes on average life sentences, I don't remember the exact figure, 400 or so or around 400 months because the average person is alive for this long and is this age when they're convicted. [02:54:31] Speaker 03: And so I think this kind of statistical methodology is appropriate in assessing the practical difference here. [02:54:38] Speaker 03: But even if you want to take the 30 years, I mean, I think we can probably agree [02:54:42] Speaker 03: And, you know, the 30 to, well I guess I would say 40 to 22 is just practically not a huge, not a huge variance. [02:54:54] Speaker 03: And, and again stepping back 22 years is an enormous sentence it's a very very long sentence, even if you think [02:55:02] Speaker 03: You know, you think I'm wrong. [02:55:04] Speaker 03: The judge thought, yes, this is a terrorism case. [02:55:07] Speaker 03: It's still nobody died. [02:55:09] Speaker 03: That is what the jury definitely found. [02:55:13] Speaker 03: The judge is saying nobody died. [02:55:14] Speaker 03: I find that this was violent. [02:55:16] Speaker 03: This was dangerous. [02:55:17] Speaker 03: But in the end, it was a property offense where American lives were not actually lost. [02:55:23] Speaker 03: 22 years is a very, very large sentence for that. [02:55:26] Speaker 03: And just, I guess, then, just to pivot to the recidivism issue. [02:55:31] Speaker 03: You know what the court actually said was simply, you know, your, your lawyers have argued that recidivism declines with age and I don't have a reason to think that's not true for you. [02:55:41] Speaker 03: Which is true recidivism we the defense provided evidence that recidivism declines of age, and the government has never suggested never suggested to the district court that it didn't. [02:55:50] Speaker 03: And I don't even understand the government to now say that it does I think my understanding of the government citations are basically that recidivism rates are relatively high in absolute terms for terrorism cases, but that doesn't. [02:56:02] Speaker 03: you know, undermine the idea that they still decline with aid. [02:56:05] Speaker 03: And so by the time Mr. Katala is a 65 year old person with I don't know exactly how many years could really plausibly be left at that point, it's not terribly likely that he's going to stage another attack, you know, and in terms of general deterrence, he did he did acknowledge that the judge did acknowledge that as something he was considering he was [02:56:25] Speaker 03: very clear that when he was issuing his variants and rendering the ultimate sentence that that depended on all the facts that he had previously discussed in his opinion in his in that sentencing all the letters he received. [02:56:37] Speaker 03: And there is enough here to determine that a 22 year sentence. [02:56:42] Speaker 03: is valid, especially given the, the standard of review here which is highly differential. [02:56:49] Speaker 03: The last thing I'll say is just unless you're honest have further questions is that, you know, to the extent that the complaint is oh you just didn't explain XYZ enough. [02:56:58] Speaker 03: You know, that's a procedural argument, and that's not really before the court. [02:57:02] Speaker 03: What matters is when you look at the sentence, which is a 22-year sentence, is that just substantively unreasonable given the culpability and conduct that was assessed by the jury? [02:57:12] Speaker 03: And I think the answer is no. [02:57:13] Speaker 03: I mean, sorry, it's not unreasonable. [02:57:18] Speaker 04: Colleagues have any more questions? [02:57:21] Speaker 04: Thanks. [02:57:21] Speaker 04: Thank you very much. [02:57:23] Speaker 04: Mr. Leonard, I know you asked us for two minutes, but we'll give you more than that. [02:57:27] Speaker 04: We'll give you five minutes for rebuttal just because the meeting's gone so long on the other side. [02:57:32] Speaker 04: But you don't have to take it all if you're done. [02:57:34] Speaker 06: Your Honor, I'd love to get this done in about 30 seconds. [02:57:38] Speaker 06: I have two very brief points I'd like to make on sentencing. [02:57:41] Speaker 06: I'm not aware of any legal basis for the idea that you measure the variance from the guidelines based upon a defendant's particular life expectancy [02:57:51] Speaker 06: versus the actual guidelines versus a sentence that was given. [02:57:55] Speaker 06: As Judge Rao suggested, that would create myriad problems in trying to estimate defendant's life expectancy. [02:58:02] Speaker 06: So I don't think there's any legal basis for reducing the size of the variance because Katala is older and from Libya. [02:58:10] Speaker 06: And certainly there's no factual basis to suggest that the district court chose its sentence based upon Katala's expected life [02:58:20] Speaker 06: time and to release him shortly before he goes home to die. [02:58:24] Speaker 06: So there's no legal or factual basis for the defendant's argument in that regard. [02:58:30] Speaker 06: And then just to take a step back and look at the bigger picture, this is a crime of terrorism to be sure, but it's not just a crime of terrorism. [02:58:41] Speaker 06: And we cited numerous cases in our briefs where courts found lengthy, even 30 year sentences to be substantively unreasonable. [02:58:49] Speaker 06: when those sentences sentenced Americans, whose conduct did not result or relate to any deaths. [02:58:57] Speaker 06: Ali, Umani, Jaoud, Khan, all of these cases involved lengthy sentences where no one died. [02:59:08] Speaker 06: Here, this defendant, no matter how much you minimize his culpability, [02:59:15] Speaker 06: participated in a terrorist attack on a US diplomatic facility on the anniversary of the September 11th attacks during which a US ambassador was murdered. [02:59:26] Speaker 06: If the UBJ members didn't murder Ambassador Stevens, the other militants who were there when the defendant participated in this attack did. [02:59:34] Speaker 06: This was a horrific offense. [02:59:37] Speaker 06: It was a world renowned offense. [02:59:38] Speaker 06: It wasn't just a terrorist attack. [02:59:41] Speaker 06: It was one of the most high profile terrorist attacks [02:59:44] Speaker 06: in a decade or more, the judge completely lost sight of that fact when he sentenced this defendant and that resulted in a substantively unreasonable sentence. [02:59:55] Speaker 04: You didn't see anywhere in your brief that you attacked the district court's decision not to stack sentences? [03:00:00] Speaker 04: Is that right? [03:00:04] Speaker 06: We didn't mention that part in our brief. [03:00:07] Speaker 04: You haven't a feel that that itself was a was a substantively unreasonable judgment. [03:00:12] Speaker 06: Not a separate error your honor but you know because the substantive reasonableness turns on the amount of the sentence. [03:00:19] Speaker 06: So how the judge got there in terms of stacking or not stacking. [03:00:23] Speaker 04: We haven't objected to his decision. [03:00:24] Speaker 04: I haven't seen anywhere where you objected or argued here today since a little late now to that determination that stacking was not a good [03:00:34] Speaker 06: We didn't, Your Honor. [03:00:37] Speaker 06: The guidelines was life. [03:00:40] Speaker 06: And under the guidelines, you get there, even though the other three crimes don't add up to life, by going to life on the 924C, which does have a lifetime maximum, and then using the other sentences to get to the guidelines plus life sentence. [03:00:57] Speaker 06: So ultimately, the stacking didn't, that decision didn't really play into the disreports analysis. [03:01:04] Speaker 04: Okay. [03:01:06] Speaker 04: My colleagues, are there any more questions? [03:01:10] Speaker 04: All right. [03:01:10] Speaker 04: With that, our thanks to both of you for spending your entire morning with us on this case. [03:01:17] Speaker 04: Your arguments have been very helpful and informative, at least to me. [03:01:20] Speaker 04: I don't mean to speak for my colleagues, but we really do appreciate all the time and the effort and the thought that has gone into this and that the case is submitted.