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Case number 22-3015, United States of America versus Joseph Smith at balance.

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Mr. Zucker for the at balance, Mr. Goodhand for the epilogue.

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Good morning, counsel.

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Before we begin today, let me just note that today is Judge Garcia's first sitting as a member of this court.

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And on behalf of my colleagues, I just wish Judge Garcia a warm welcome to the court and many happy and fulfilling years of service in pursuit of our common calling.

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Welcome.

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Congratulations from everybody.

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Jonathan Zucker and Patricia Doss.

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May I begin, please?

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Thanks.

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Jonathan Zucker, Patricia Doss on behalf of Helen, request five minutes for rebuttal.

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I intend to address the jury selection issue and submit on the other issues on the briefs.

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And that's the only point to argue.

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And in all candor, I'm inclined to tell the court that Professor Chernoff's articles, which were cited, are essentially the argument

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I am adopting.

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And the arguments are made much more thoughtfully and persuasively by her in those articles.

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But the gist of our position on the jury issue is recognizing the difference between the Sixth Amendment guarantee to a jury panel that fairly represents the community and the Equal Protection Clause analysis.

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The review in this case is de novo.

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It's a question of law.

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The court is well aware of the three

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primary cases relied upon are Duren and Taylor, the Supreme Court cases that deal with jury panel representation.

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And there's three elements to the claim of this type.

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The first is that involves a distinctive group that is not fairly represented.

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Second, that the representation of the group in the panels, and it has nothing to do with the juries that are actually picked,

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but that the panels are not fair and reasonable in relation to the makeup of the community, and that the underrepresentation is due to a systemic or systematic exclusion.

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The first element of the government doesn't even argue in the court found is satisfied.

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It has to do with black representation of the community within the panels.

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And I note there was some confusion, frankly, in the pleadings where it talked about black and Hispanic.

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But the testimony of both experts only had to do with representation of black members of the community within the panels.

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The second is whether the representation in the panels, I'm sorry, the second is the statistical difference, whether that statistical difference between the census, which all the parties agreed was 39.3% black in the last census, and the representation of the panel,

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which was 24.9%.

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And I'm talking at this point only about the panel that was sent down for the trial.

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It was a differential of 14.4%.

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Subsequent to the trial and subsequent to the initial pleadings, additional expert testimony was taken and reports given, which broadened substantially to include other panels.

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And in each instance,

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There was still a discrepancy.

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There was still a underrepresentation of black members of the panels compared to members of the community.

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May I ask you an element you have not mentioned?

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Is it an element that the actual jury that sat on your client's case was underrepresented?

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No, I think the hypothetical.

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Suppose all 12 plus the two alternates were all black.

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Well, then how can he claim a denial of the jury of the Spears?

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Well, the claim is based upon the veneers that are sent down.

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I know that's your claim.

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What I'm asking you is, what if the panel actually presided over the trial or was at the trial?

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With all due respect, academically, if the panel was all black for the sake of argument,

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you still have the same issue.

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If, for the sake of argument, you set down a panel of 100 potential jurors, 88 are white, 12, well actually 12 would probably be closer to a representation, but you still have the infection of the panel, and you have to look at the panel.

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How is that possible?

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With all due respect, that's what the law is.

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As I understand it, the actual jury here consisted of five blacks

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but seven whites, no, five blacks and let's see, nine whites.

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I don't remember the exact numbers, but again, the inquiry based on the precedent is you look at the panel, you look at the representation of the panel.

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Do you have a case that stands for the proposition that the actual jury that sat on the case is irrelevant?

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I don't think that's ever been addressed specifically.

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I don't think so either, although in Justice White's opinion in, what was it, Duren?

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I've forgotten the name.

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Duren?

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Oh, Bergeron.

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He made the point that the jury there was, and it was exclusion of women, and the jury that sat on the case was 12 men.

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So do you think that was irrelevant for Justice White to mention that?

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I can't comment on what Victor Justice White chooses to put into his opinion, but I think the standard is it doesn't even matter if the defendant is of the same race that's being questioned.

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I mean, in Taylor and in

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during the issue was based on sex discrimination, that the panels did not fairly represent the community because women were being excluded.

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Let me ask you another question about your... Why is the census a proper standard by which to measure?

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Let me tell you why I asked the question.

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Number one, in the District of Columbia,

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individuals who are imprisoned don't have a right to sit on a jury.

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And number two, there is evidence as well, or not evidence, but there are statutes as well that anybody in the District of Columbia who's been convicted of a felony cannot sit on a jury.

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So the census doesn't take into account any of that.

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I don't know the census.

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I assume the sentence counts people who are convicted felons who would be excluded.

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I do not know whether or not the census includes incarcerated people.

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What is the rate of conviction in the District of Columbia of felonies for blacks and whites?

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I do not know off the top of my head.

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Suppose it's 50% for blacks, right?

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I want to make sure I understand your premise.

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39% would not be representative at all, would it?

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You're saying if 50% of the black residents of the District of Columbia were convicted of felonies.

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Right.

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That's a pretty amazing statistic.

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Oh, really?

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Which would skew.

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There's a study indicating that that happened.

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It's an old study, but it's from 1997 by a prison research group saying exactly that.

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Well, I still think that the experts in this case chose the census.

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quibble about whether or not the census is the correct parameter to measure the composition of the jury challenge.

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But I think given the fact that both experts, ones who were hired by the government and the defense, both chose the census as the representative sample, kind of ends the inquiry for our purposes.

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And the court accepted it.

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I don't think that was any factor in the court's decision.

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Did that answer your question?

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Sorry?

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Did that answer your question?

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No.

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All right.

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You want to rephrase it?

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I mean, you're asking me if... When you reduce these numbers at 39.4%, et cetera, et cetera, it sounds like you're engaging in a really exact science when, in fact, you're not.

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Because we really don't know what the number of eligible individuals in either race are

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available for jury duty.

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I will concede that the census does not exclude, I assume the census does not exclude those who are disqualified based on prior convictions.

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But I think be that as it may, that's the standard the experts chose to apply and that's what we have to measure the decision against.

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And so anyway, I think based on

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Well, the first element is already satisfied.

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It's not even in dispute.

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The second- Council, could I just direct you to the third prong of Durham?

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So as you know, it requires- Systemic.

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A showing that the cause is systemic exclusion, meaning something inherent to the process.

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And as I understand it, your theory here is that response rates from the black community were depressed because of the pandemic.

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And what the district court said is those are external factors.

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And I'm just wondering how we could characterize that as an inherent cause.

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Well, first off, I'm not sure the pandemic played as large a role as was.

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put forward in the pleadings by trial counsel or the plaintiff's expert, I think we have to look at what the statistics were, regardless of the pandemic.

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But the data is from six to seven months in 2021 during the pandemic, and that's the theory that was put forward in the district court.

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Well, I agree, but I think if there is underrepresentation

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based on either the pandemic or some other reason, we have to look at what the panels were versus what the population is and make a decision.

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I'm just saying I don't think the pandemic even should play that factor in this case.

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And I think the trial judge, Juvelle, found that there was

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for the non-trivial under-representation, and that it wasn't a fluke.

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So I think we are left with her finding, which I don't challenge, that this wasn't an aberration.

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Both experts looked at several panels and said there is under-representation.

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They quibbled about the numbers and the percentages.

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But in any event, there was under-representation found.

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And once that's found, the question of whether or not it's systemic is, it's there.

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Therefore, it's systemic across the panel.

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I think the bigger issue where the argument you just laid out would reduce this to a two-pronged test.

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The second prong is, is there under-representation?

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And your approach would be, then the government has to fix it.

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But I think we need to give some meaningful impact to what the Supreme Court set out as a third prong.

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And I'm just struggling with how your approach here does that.

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You know, I think in some ways the second and third prong do mesh.

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That if there is under-representation,

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I think we have to infer it's systemic.

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And the absence of it being systemic is really up to the government to rebut.

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And I think what they've done here and what has been done by the trial judge and what has been done by numerous circuits is they've looked at this as is there intentional discrimination, which shouldn't be a factor.

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The factor should be if the panel does not represent the community, the panel does not represent the community absent, you know, trivial distinctions and the whole

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And I guess the point I'm trying to make.

[00:12:15] Speaker 02:
What's supposed to happen then?

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Suppose that we're in a realm in which there is statistical under-representation.

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What's the jurisdiction supposed to do?

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Exit.

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But how?

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By adopting the measures suggested by Tren Wolf and, I think, Agors.

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By using a much more requiring the jury office to send follow-up notices.

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Those have been shown to the people who don't respond.

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Everybody who doesn't respond?

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Well, I don't think you could draw a distinction based on race, if that's your question.

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And then if it just suppose that then they're still under representation?

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Well, I mean.

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Because why would we think that, maybe there's something in the literature that answers this, but why would we think that response rates are going to be differential in a meaningful way the second time around versus the first time around?

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I don't know that they will, but they've been shown to be effective.

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And so if there's a higher percentage of lack of a response among one group, then that is the group that's going to be – there's going to be a higher – you know what I'm trying to say.

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There's going to be a higher second request that impacts that group more directly, because there is a lower response rate, and then hopefully that would correct it.

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Additional measures might be required.

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It might require

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the court's taking a more aggressive role.

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And right now, nothing happened to somebody that doesn't respond.

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And frankly, I was shocked in this case to find out that the response rate on jury summons is really under 40%.

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And nothing happened.

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So the question is, if the court does something to enforce people's obligation to serve on juries, or at least to report, I think we could anticipate a more representative response.

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I mean, the response rate is much lower.

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I think it's 17% lower among black residents than it is among, I don't know, white or other, however you want to characterize it.

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So that would be the focus of the second follow-up.

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And the court has an obligation to comply with the Sixth Amendment right to a jury that is representative of the community.

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It cannot excuse it saying, well, there's external factors.

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frankly, don't comply with it.

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Those are just excuses and shouldn't be tolerated.

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The court has an obligation to pursue this.

[00:14:42] Speaker 02:
So as long as there's a disparity, then that's, in your view, the end of the inquiry.

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Then the jurisdiction just has to do something about it.

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That's the way you conceive of the three prong inquiry.

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Well, I think if there's a reason for the disparity that is

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I mean, for instance, if the reason for the disparity is along the lines that Judge Randolph intimated, that there's a lot of people who don't respond because they know they're not qualified.

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I mean, that certainly would be a different explanation.

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And if that turns out to be the case, you can't correct.

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But until there's a finding that there is some other reason for this, what is, I suggest, systemic,

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imbalance or difference.

[00:15:31] Speaker 00:
Is the notification that goes out, or do you know, if the notification that goes out lists disqualifying circumstances so that an individual would not have to respond?

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I could only tell you based on my memory of having getting jury notices because there was nothing in the court record about this.

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My memory is if you have an excuse, you have to put it in writing and submit it.

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And then usually you get an, I've never had to confront that issue as my excuse, but it's more of a scheduling issue.

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So I don't know the answer to your question.

[00:16:10] Speaker 00:
Yeah, I raise that because I've received jury duty notices from Montgomery County.

[00:16:15] Speaker 00:
And I'm sure you've complied.

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I can disqualify myself, because I'm over the age of 65.

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I just check a box.

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But I still respond, I guess.

[00:16:25] Speaker 04:
OK, so you'd be included in the response rate.

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But here, we have a response rate that is remarkably low and disproportionately low among one distinctive group.

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And that's what I suggest.

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the court is obligated to address.

[00:16:42] Speaker 02:
Let me make sure my colleagues don't have additional questions for you at this time.

[00:16:45] Speaker 02:
Thank you.

[00:16:46] Speaker 02:
We'll give you some time for rebuttal.

[00:16:52] Speaker 02:
Thank you.

[00:16:53] Speaker 02:
Mr. Goodhand.

[00:16:53] Speaker 01:
Good morning, Your Honors.

[00:16:55] Speaker 01:
May it please the court to give a good hand for the United States.

[00:16:58] Speaker 01:
With me in council is Deputy Chief John Manarino and proud Councilman Modo.

[00:17:05] Speaker 01:
If I could just address a couple of the questions that were raised to the best of my ability during my opponent's argument.

[00:17:12] Speaker 01:
First, as to the question of census versus juror eligibility, there is some debate in the case law about whether or not it's sufficient for a defendant to suggest and reference just census data.

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or if there is an additional burden to go further and suggest, no, population is juror eligibility.

[00:17:36] Speaker 01:
And I would come into the court if these are very complex issues.

[00:17:42] Speaker 01:
But as I was preparing for a oral argument, I came across an authority that goes into great detail about a lot of these issues.

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And I would come into the court if you're interested.

[00:17:49] Speaker 01:
It's grand jury law in practice by William Bryson and James Fellman.

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a very exhaustive view of a lot of the case law and a lot of the debates within this arena.

[00:18:02] Speaker 01:
All that said, with respect to the question of census versus juror eligibility as part of the prima facie case, number one, both parties agreed here that we were going to rest with the census data.

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So we are not suggesting that that was a prima facie part of his burden.

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Number two, I will note that the Supreme Court has indicated that census data, as long as we're talking about an adult population, obviously over 18,

[00:18:29] Speaker 01:
Census data can suffice for purposes of the comparison that you're drawing.

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And I would draw the court's attention to the Duren decision, where there is a discussion of the fact that census data was used there.

[00:18:44] Speaker 01:
Now, I will say that in Berghese, I think Justice Ginsburg makes reference to juror eligibility as the relevant benchmark.

[00:18:52] Speaker 01:
So even the Supreme Court is a little bit in between, I would suggest, on this question that has been raised.

[00:18:59] Speaker 01:
That's the first thing I want to draw the court's attention to.

[00:19:01] Speaker 01:
The second thing I want to draw the court's attention to is, you know, I'm looking at the district court's opinion, a very thorough opinion on this topic, but I would just draw the court's attention to JA 277, where

[00:19:17] Speaker 01:
She indicated, Chief Judge Howe, and she cites a decision from this court, a defendant need not demonstrate that actual prejudice resulted from the Frayer cross-section violation at issue.

[00:19:28] Speaker 01:
She cites a 1976 decision, Vittorello, 536, F-second, 420.

[00:19:36] Speaker 01:
Another question I want to address that came up.

[00:19:41] Speaker 02:
The only thing we know... What does that prejudice in what sense?

[00:19:48] Speaker 02:
Are you suggesting that that means the composition of the actual panel, or are you suggesting that that goes to prejudice?

[00:19:54] Speaker 01:
I took it to mean, and I apologize.

[00:19:57] Speaker 01:
I actually didn't do the deep dive into that case.

[00:19:59] Speaker 01:
I took it to mean that you can still bring a fair cross-section claim, even though the actual jury panel may or may not have reflected it under representation.

[00:20:10] Speaker 01:
I may be wrong, but that's how I read that sentence, and I apologize.

[00:20:14] Speaker 01:
That was in the debate below, and that was something that everybody was kind of on the same page.

[00:20:20] Speaker 01:
In fact, it was only the district court judge who brought out the actual, based on her observations, I think the actual compilation.

[00:20:30] Speaker 00:
Do you know if the figures that are being used here apply as well to the Superior Court?

[00:20:38] Speaker 01:
I do not.

[00:20:40] Speaker 00:
I know that there is... Do you know if the Superior Court sends follow-up?

[00:20:45] Speaker 01:
I do not know if they... I apologize.

[00:20:48] Speaker 01:
I don't know if they use the one step or the two step.

[00:20:50] Speaker 01:
I can say this on that, on the notion of follow-up.

[00:20:55] Speaker 01:
I heard my opponent suggest that that should be a mandatory feature of the system.

[00:21:01] Speaker 00:
Well... The other question I have is that the presentation by the defense here

[00:21:08] Speaker 00:
is not site-specific because he's dealing with the global question rather than what actually happened in his own trial.

[00:21:18] Speaker 00:
And so therefore, if we ruled in the defense favor, it would put in jeopardy, would it not, apart from the question whether an objection was made, but would put in jeopardy every single criminal trial that's gone on for the last, who knows, 10 years in the district.

[00:21:38] Speaker 01:
Well, I think the defendant would have had to raise it.

[00:21:40] Speaker 01:
And that's sort of part and parcel of the whole jury's statute, the selection statute, which is at least on the statutory side of things.

[00:21:49] Speaker 01:
And I think the constitutional follows thereafter.

[00:21:51] Speaker 01:
You have to raise this.

[00:21:53] Speaker 01:
You have to claim either that your indictment was a problematic indictment because of the grand jury, or you have to stay the trial.

[00:22:01] Speaker 01:
That is, you have to say to the court, look, I think my petty jury is a product of underrepresentation.

[00:22:07] Speaker 01:
And you have to stay the trial, continue the trial until we get this figured out, and you can adjudicate that.

[00:22:12] Speaker 01:
So I think that those kind of preludes would have to happen before any sort of new trial could be ordered in any case that had unfolded with respect, for example, this master jury wheel or this summons list.

[00:22:29] Speaker 01:
That'd be my understanding of how that would have to operate.

[00:22:34] Speaker 01:
Very briefly, I would point out to the court the suggestion that there must be mandatory follow-up.

[00:22:43] Speaker 01:
The court actually addressed this, the district court, that is.

[00:22:47] Speaker 01:
At least under the statute, and I'll cite to 28 USC 1864, it gives discretion made

[00:22:58] Speaker 01:
to the clerk, whether or not to summon non-respondents to appear to complete the form.

[00:23:05] Speaker 01:
And the district court noted, so this notion of mandatory enforcement, it actually would violate the statute, number one.

[00:23:11] Speaker 01:
Number two, that's sort of like what district court judges have the discretion to haul into court

[00:23:18] Speaker 01:
jurors who are summoned, they are on the report list, but they don't actually show up in the courtroom.

[00:23:24] Speaker 01:
Well, again, that's discretion for a district court judge.

[00:23:26] Speaker 01:
So this notion of mandatory enforcement would violate statute.

[00:23:32] Speaker 01:
Second, it would, I think, you know, we have to step back here and ask, what is the right we're talking about?

[00:23:39] Speaker 01:
As I understand the right, the fair cross-section right, it is not.

[00:23:44] Speaker 02:
When you say it would violate the statute, I mean, I take it as,

[00:23:48] Speaker 02:
the statute wouldn't be violated across the board because, or violated at all necessarily, because it would only come into play, the notion of follow-up would only come into play in a situation in which you had a disparity.

[00:24:01] Speaker 01:
Yeah, I think, yes.

[00:24:02] Speaker 02:
And so if the Constitution, by appellant's argument, requires the follow-up, then you're not taking the position that the statute forecloses that.

[00:24:11] Speaker 01:
No, no.

[00:24:12] Speaker 01:
And I think that segues into my next point, which is,

[00:24:15] Speaker 01:
As I understand what the Constitution requires, it does not require complete proportionality.

[00:24:22] Speaker 01:
What it requires is that the system not cause or create under-representation.

[00:24:29] Speaker 01:
And that's the sort of core disagreement we have between the defense and the prosecution here.

[00:24:34] Speaker 01:
That is, nothing in this record demonstrates the system created an under-representation.

[00:24:41] Speaker 01:
What we have here demonstrated is a non-response rate

[00:24:46] Speaker 01:
of persons who get the summons, the questionnaire, and don't return it.

[00:24:51] Speaker 01:
That is, I would suggest, and the District Court found, a sort of prototypical example of an external force.

[00:24:57] Speaker 01:
Those are the decisions of individuals who have gotten the summons slash questionnaire, and they choose, for whatever reason, not to return it.

[00:25:07] Speaker 01:
Every court, as I understand it, and the district court said the same thing, every court has said that non-response is not something that is inherent in the system.

[00:25:18] Speaker 01:
The system, thus, did not create any under-representation.

[00:25:21] Speaker 01:
Of course, we don't concede that the second Congress met here.

[00:25:25] Speaker 01:
The district court concluded that.

[00:25:27] Speaker 03:
Well, on the third prong, is that sort of a categorical position you would stake out that anything related to response rates is always going to be external?

[00:25:38] Speaker 03:
Or does it have something to do with the particular facts here?

[00:25:43] Speaker 01:
It's hard for me to conjure up.

[00:25:48] Speaker 01:
Once you're talking about how a person who receives a summons responds to that summons, it's hard for me not to be categorical in suggesting that that is not something inherent in the system.

[00:26:01] Speaker 01:
We can, and this report made the exact same point, we can debate as a policy matter

[00:26:07] Speaker 01:
what kind of things that a jury office might do, what kind of things a clerk's office might do.

[00:26:11] Speaker 01:
A second summons a follow-up of some sort.

[00:26:17] Speaker 01:
But that is not constitutionally required.

[00:26:21] Speaker 01:
And I would also note that, at least under the jury selection statute, they expressly bless, excuse me, the statute blesses this one-step process.

[00:26:31] Speaker 01:
So the statute says we're OK with that and says,

[00:26:34] Speaker 01:
We're okay with discretion on enforcing the summons, and so the statute seems quite comfortable with the system that's in place here.

[00:26:45] Speaker 03:
Can I direct your attention to the Fourth Amendment issue, and in particular, the sufficiency of the 2017 warrant?

[00:26:52] Speaker 03:
Sure.

[00:26:53] Speaker 03:
It strikes me that, at least on its face, the warrant, both in terms of the scope of the devices that could be seized and the data that could be taken from them, is essentially unlimited.

[00:27:06] Speaker 03:
And I'm wondering why, to start with the devices,

[00:27:11] Speaker 03:
Clearly there was probable cause as to his phone, the computer, and maybe one or two other specific phones.

[00:27:18] Speaker 03:
Why shouldn't the warrant have specifically identified those devices rather than just saying any and all devices that we come across are going to be seized?

[00:27:30] Speaker 01:
I disagree with this notion of authorized everything, a seizure of everything, a search of everything.

[00:27:36] Speaker 01:
And critically, the warrant, I would suggest, has a global modifier, if you will.

[00:27:43] Speaker 01:
The evidence searched for, the paraphernalia, the contraband, the item seized, must be evidence of offense in violation of 22 DC code 300.

[00:27:54] Speaker 03:
That limitation doesn't affect which electronic devices they were

[00:27:57] Speaker 03:
Pick up right they see 17 devices when they knew about three or four yes yes it's not not a meaningful limit from the statute as to the devices that they would go in and take out of this home without regard to who they belong to.

[00:28:12] Speaker 03:
or whether they even knew they existed before entering?

[00:28:14] Speaker 01:
Well, I think that is a limitation.

[00:28:17] Speaker 01:
And I think Griffith speaks to this point.

[00:28:19] Speaker 01:
Griffith, of course, very different case.

[00:28:21] Speaker 01:
But Griffith, there was no probable cause to believe he had a phone in his residence, no probable cause to believe that the phone contained any evidence of the crime.

[00:28:34] Speaker 01:
All that is different from what we have here.

[00:28:37] Speaker 01:
But what Griffith said is if you can establish a nexus

[00:28:42] Speaker 01:
Griffith said, if you can establish a nexus between the crime and the foe, then devices linked to the shooting was a phrase that Griffith used.

[00:29:00] Speaker 01:
And that's at page 1276.

[00:29:05] Speaker 01:
That would be permissible.

[00:29:07] Speaker 01:
And Griffith, your report talked about

[00:29:11] Speaker 01:
One way that when you link a statute to a device is by officers, for example, could have examined the device initially thought might belong to Griffith, but they could not have seized the device.

[00:29:27] Speaker 01:
became aware it belonged to his girlfriend.

[00:29:29] Speaker 01:
So that's one limitation here is if you go in and you figure out that the phone or the computer doesn't belong to the defendant, then you don't seize it.

[00:29:44] Speaker 01:
But getting back to the whole question of the phones that were seized,

[00:29:50] Speaker 01:
There were a number of phones that were seized, for sure.

[00:29:53] Speaker 01:
But that, I would suggest, was a natural consequence of the facts of this case.

[00:30:00] Speaker 01:
That is, here we had a year-long allegation of ongoing sexual abuse.

[00:30:08] Speaker 01:
Integral to that criminal conduct were the phones, at a minimum two phones, a complaining witness's phone and a defendant's phone.

[00:30:17] Speaker 01:
So already we're talking about multiple phones.

[00:30:20] Speaker 01:
Added to that are further reasonable inferences, I would suggest.

[00:30:23] Speaker 01:
And again, we're talking about probable cause.

[00:30:24] Speaker 01:
But the further reasonable inferences are these.

[00:30:28] Speaker 01:
Even a citizen who isn't committing sexual abuse cycles through phone.

[00:30:34] Speaker 01:
You upgrade them, you lose them, you change phone.

[00:30:38] Speaker 01:
Add onto that the layer here of a defendant, a suspect, who is engaging in ongoing regular sexual abuse of a minor.

[00:30:49] Speaker 01:
That person, I would suggest, it's a reasonable inference to conclude, might well cycle through phones a little faster and may spread out his indicia of guilt over a number of phones.

[00:31:03] Speaker 01:
I would suggest that an officer drafting this warrant would be remiss in the case of a year-long sexual conduct criminal offense

[00:31:14] Speaker 01:
to focus in on one.

[00:31:17] Speaker 02:
Can I just ask on that score?

[00:31:18] Speaker 02:
Sure.

[00:31:19] Speaker 02:
So as I recall, the suggestion was made that it could be cabined to two iPhones because the victim had identified two iPhones.

[00:31:29] Speaker 02:
And I don't remember exactly what her age was at the time that she had the exchange, but she was still pretty young.

[00:31:34] Speaker 02:
Yeah, I believe 14.

[00:31:35] Speaker 02:
14 at that time.

[00:31:37] Speaker 02:
And so you'd have to rely on a 14-year-old's recollection of the particular type of phone.

[00:31:44] Speaker 02:
And am I right that there were iPhones that were mentioned, but then it was a Motorola phone that had right.

[00:31:49] Speaker 02:
And how do you know what happened?

[00:31:51] Speaker 02:
Why is why was it not an iPhone?

[00:31:55] Speaker 02:
Why was it a Motorola phone that ends up with the bulk of the

[00:31:59] Speaker 01:
I have no idea.

[00:32:01] Speaker 01:
I don't think the record speaks to that.

[00:32:02] Speaker 01:
I think, if anything, it speaks to the inferences that I was just eluding.

[00:32:06] Speaker 01:
Right.

[00:32:06] Speaker 01:
That's what I'm wondering is.

[00:32:07] Speaker 01:
I don't think the record speaks to it.

[00:32:08] Speaker 01:
It speaks to what kind of common sense conclusions we can draw based on the activities of a computer savvy, a cell phone savvy criminal defendant.

[00:32:18] Speaker 03:
Yeah, I certainly appreciate those arguments as to the devices.

[00:32:23] Speaker 03:
I wondered if you might just very briefly address the scope of the data seized as well and maybe the quickest way to get at that is did draft this 2019 warrant that set out specific categories.

[00:32:36] Speaker 03:
The 2017 warrant doesn't have any limitation and I think we can all imagine

[00:32:42] Speaker 03:
categories of information that might be on a cell phone, banking information, health information, that wouldn't really have a plausible connection to a crime like this?

[00:32:52] Speaker 01:
Again, I disagree with the notion that there was no limitation with relation to the electronic data.

[00:32:58] Speaker 01:
Again, I circle back to the global modifier.

[00:33:01] Speaker 01:
The data that was seized had to relate to the specific offense of first degree child sexual abuse.

[00:33:08] Speaker 01:
Now, when you seize that phone, you have no idea, as an officer, where on that phone the data is going to be.

[00:33:15] Speaker 01:
Bass is a case where they talk about, we know, and it's fair to infer, that manipulation of files, deletion of files, counterfeiting of files.

[00:33:27] Speaker 01:
So when an officer seizes a phone, and I would point to the seven certs decision, and Bishop goes into great detail about, if you link it to a statute,

[00:33:37] Speaker 01:
You can go through every file.

[00:33:40] Speaker 01:
And I would encourage the court to look at the Chief Judge Howe relied on quite heavily in her decision.

[00:33:48] Speaker 00:
You say we don't have to decide any of this.

[00:33:52] Speaker 01:
I'm saying that... Because of Leon.

[00:33:56] Speaker 01:
Oh, well, sure.

[00:33:57] Speaker 01:
Yeah.

[00:33:58] Speaker 01:
The good faith exception we would suggest is a backup argument for us.

[00:34:04] Speaker 01:
If it's easier for this court to go down that... It doesn't have to be a backup.

[00:34:07] Speaker 01:
It could be the... It could be the primary argument.

[00:34:10] Speaker 01:
And on that point, I see my time's out.

[00:34:12] Speaker 01:
I will make one final point.

[00:34:15] Speaker 01:
Griffith did not find that the Leon exception had been met.

[00:34:19] Speaker 01:
Griffith, however, went to great pains to emphasize that there were two features

[00:34:23] Speaker 01:
of that case that were different, that were outcome-determined.

[00:34:28] Speaker 01:
Number one, the missing probable cause, and number two, the over-breath.

[00:34:32] Speaker 01:
Here, missing from the equation is the absence of probable cause.

[00:34:37] Speaker 01:
District court found probable cause.

[00:34:38] Speaker 01:
My opponent hasn't challenged that ruling on appeal, and I understand why my opponent has not.

[00:34:44] Speaker 01:
The probable cause supported seizure of the phones, the seizure of the computers, and the electronic data

[00:34:51] Speaker 01:
All of which was the global modifier relating to the specific offense of first degree child sexual abuse.

[00:34:59] Speaker 02:
Can I just ask one practical question?

[00:35:00] Speaker 02:
So the warrant describes the suspected evidence as consisting of a bunch of devices.

[00:35:10] Speaker 02:
And then it has the clause that you've been relying on, which is evidence of an offense in violation of DC Code 22-3008.

[00:35:21] Speaker 02:
The case that when law enforcement officers are executing a warrant framed in that way that they understand that which is clause as cabining.

[00:35:31] Speaker 02:
the stuff that comes before that what they're looking for is information that's evidence of an offense in violation of DC code, so that if they see something on the device that by self-evidently has nothing to do with that, that that's not going to be searched?

[00:35:44] Speaker 01:
That's 100% my understanding.

[00:35:46] Speaker 01:
And it's not just, I would suggest, individual to law enforcement.

[00:35:52] Speaker 01:
I would suggest that that's common sense reading of that paragraph.

[00:35:56] Speaker 01:
These are items that we believe we have a probable cause to conclude are on the premises.

[00:36:01] Speaker 01:
You can only seize those items and look at that electronic evidence if it is evidence of an offense in violation of first degree trials.

[00:36:11] Speaker 02:
Right, but it doesn't necessarily follow that the search would have to be cabined because it already says that the device is evidence.

[00:36:19] Speaker 02:
So then you'd have to carry that through to say, and that's also cabining the way that I'm looking at the data.

[00:36:24] Speaker 01:
That's how I read it, and I would suggest that's a common sense reading.

[00:36:27] Speaker 01:
Again, it's that conditioning global modifier that applies to everything that we see, the devices and the data.

[00:36:37] Speaker 01:
Unless there are any further questions, we would ask that the court affirm the judgment and conviction.

[00:36:42] Speaker 01:
Thank you.

[00:36:42] Speaker 02:
Thank you, Mr. Goodhand.

[00:36:44] Speaker 02:
Mr. Zucker, we'll give you back three minutes for rebuttal.

[00:36:50] Speaker 04:
My colleague pulled my attention.

[00:36:52] Speaker 04:
I said, Judge Hoover.

[00:36:53] Speaker 04:
I meant to say Judge Howell.

[00:36:54] Speaker 04:
I was a trial judge.

[00:36:55] Speaker 04:
I just misspoke.

[00:36:57] Speaker 04:
Regarding the probable cause in this case was for the two phones that were mentioned by the complainant.

[00:37:03] Speaker 04:
And everything was seized.

[00:37:04] Speaker 04:
So I would suggest the warrant simply went beyond or the seizure went beyond.

[00:37:13] Speaker 04:
Leon establishes a good faith reliance when the executing officers knew that only two phones were mentioned is to create an exception that swallows the rule.

[00:37:23] Speaker 04:
The only thing I would point to, frankly, regarding opening up the lion's gate or the flood doors of every case that's been tried, I think it all to the same

[00:37:42] Speaker 04:
challenge.

[00:37:44] Speaker 04:
I have to agree with Mr. Goodhand that those doors have been closed because no other cases that I'm aware of have raised or preserved this issue.

[00:37:53] Speaker 04:
And frankly, I don't know that current panels have the same infirmity.

[00:38:03] Speaker 04:
Nobody's looked at it as far as I know.

[00:38:05] Speaker 04:
They may, in which case

[00:38:07] Speaker 04:
they may raise prospectively this same issue.

[00:38:11] Speaker 04:
But in my opinion, that would be a good thing, because it would put pressure upon the jury office to correct what I suggest is this error, which is a Sixth Amendment violation.

[00:38:23] Speaker 00:
You've been in the criminal defense business for quite some time, and I don't expect you to know this.

[00:38:30] Speaker 00:
But memory is triggered.

[00:38:34] Speaker 00:
by this discussion, and I think there was a movement in the District of Columbia Federal Court to expand the jury pool beyond the geographic confines of D.C.

[00:38:48] Speaker 00:
into the suburbs of Maryland and Virginia.

[00:38:52] Speaker 00:
Does that ring a bell?

[00:38:53] Speaker 04:
No.

[00:38:55] Speaker 04:
Okay, and you got a couple years on the judge, but no, it doesn't.

[00:38:59] Speaker 00:
The reason for, as I recall, was that there

[00:39:02] Speaker 00:
they were running out of eligible jurists because people kept getting called and called and called again.

[00:39:07] Speaker 00:
And, and, but I don't know whatever happened to it.

[00:39:10] Speaker 00:
And I don't know whether there were any congressional hearings.

[00:39:14] Speaker 00:
Are you aware of any?

[00:39:15] Speaker 04:
No.

[00:39:15] Speaker 04:
And I, I doesn't even ring a distant bell in Wakanda.

[00:39:20] Speaker 04:
I am familiar with what you've said that, you know, when we were,

[00:39:24] Speaker 04:
in the 90s going through juries left and right, that there was a resentment within the community about how often people were being called to serve.

[00:39:32] Speaker 04:
I do recall that distinctly.

[00:39:34] Speaker 04:
But I don't recall anything about, let's go get jurors from Maryland or Virginia to address it.

[00:39:40] Speaker 04:
And I don't know what that would raise.

[00:39:43] Speaker 04:
Is there anything else the court wants me to respond to?

[00:39:46] Speaker 04:
I mean, I guess the bottom line I'm focusing on here is,

[00:39:52] Speaker 04:
We cannot excuse the failure to comply with the Sixth Amendment requirement by looking at intent, which is really non-applicable.

[00:40:05] Speaker 04:
It's applicable in an equal protection context.

[00:40:07] Speaker 04:
It's not applicable in a Sixth Amendment context.

[00:40:11] Speaker 04:
And my recollection is Durin supports that says we don't look at intent.

[00:40:17] Speaker 04:
We look at what the results are.

[00:40:19] Speaker ?:
OK?

[00:40:20] Speaker 02:
Thank you, counsel.

[00:40:21] Speaker 02:
Thank you to both counsel.

[00:40:22] Speaker 02:
Mr. Zucker, you are appointed by the court to represent the appellant in this matter, and the court thanks you for your assistance.

[00:40:28] Speaker 02:
We'll take this case under submission.