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Case number 22-3061, United States of America versus Shane Brown, appellant.

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Mr. Maccoby for the appellant, Mr. Burney for the appellee.

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Good morning.

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May it please the court, Max Maccoby for appellant Shane Brown.

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Your honor, we urge this court to find that

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Trial counsel below was ineffective and that it made a difference in the outcome of the case and to remand for a new trial.

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We submitted what we believe is more than enough to show that to overcome the strong presumption that any of the errors that we pledge trial tactics.

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Just to start with the two elements, ineffective and then prejudice.

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The government does not dispute that

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The case depended on a sole witness who was impeached on major points that he had a motive to fabricate, and there was absolutely no corroboration to the single witness, the lift driver.

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Therefore, any one thing, any one ineffective assistance of counsel claim could make a difference.

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We submit that there was a complete failure to investigate.

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The government says, well, it was trial tactics.

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It was a pure reasonable doubt strategy.

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Well, you don't reach that if you don't interview critical witnesses to the case who can directly impeach Mr. Flores, the complaining witness, the Lyft driver on key points, including whether there was an argument at the trunk of the car in the McDonald's parking lot, whether there was an argument in the car.

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These are points where Mr. Brown was on the phone

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with a friend who overheard and could have testified there was no argument.

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Well, the decision not to call him as a witness can't be a trial tactic.

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If trial counsel admits he never interviewed that witness, Mr. Keslow, in the first place.

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That is what under the United States versus Mohammed says is a complete failure to investigate.

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Moreover, it's abundantly clear that

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There was ineffective assistance of counsel with the drugs.

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No effort was made to file a motion and eliminate to suppress 78 pounds of marijuana that was found several days later in his apartment in the search for the gun because trial counsel said they didn't think they could win.

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Well, that's not a trial tactic and they would have won.

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Some of it would have been suppressed.

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Nor was there a trial tactic in failing to object to 78 pounds of the noxious fumes of marijuana published to the jury, where the government prosecutor actually warned the judge and everybody in the courtroom that it was going to be an overpowering smell.

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They decided not to object to that because they thought it would be funny to the jury to see all those drugs and endear the jury to Mr. Brown as a bumbling incompetent criminal.

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That can't be a trial tactic that's acceptable to this court.

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And it is contrary to decades of accepted defense doctrine to object to prejudicial evidence.

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That's the whole point of a trial.

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Defense objects to prejudicial evidence and the prosecution tries to introduce it.

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Yeah.

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When this case was first on appeal to the circuit, we remanded for further factual findings on the ineffective assistance claim.

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The main focus of our panel opinion was on these Miranda claims.

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What happened to those below?

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I mean, that was the main focus of why we had remanded.

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And then I didn't see much about that in the record.

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The Miranda warnings were not given.

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And he, in the video with the detective, he made some points that were put in an affidavit for a search warrant.

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So ordinarily we would move to suppress.

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However, Mr. Flores also made representations for the search warrant.

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So under a independent source doctrine,

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The government may have been successful against the search warrant.

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So if you strike out the language with Mr. Brown from the failure to Mirandize him and just question him, even though he asked for a lawyer, he did ask for a lawyer in the video.

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And the detective questioned him for another 40 minutes without getting a lawyer.

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All of that if you strike that out of the search warrant, you still have the complaining witnesses claim that he had a gun and he pointed at him and he ran into his apartment.

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So it was just wasn't, I looked at it closely.

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Now what we did find when we remanded it for evidence was the results of the cell phone search.

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in which trial counsel clearly never read.

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It was only produced two days before trial.

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We know they didn't read it because it had people like Brian Sands as witnesses in the call logs, and they never interviewed Brian Sands on the way up to Aberdeen.

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Well, that tells you they didn't read it, the search phone results.

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Now, I read them.

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When we remanded it, I got all the evidence.

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I read it, and I was shocked to find that there was a call log.

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With three witnesses, Bryant stands on the way up, and on the way down, Jordan Keslo and his girlfriend, Katie Impalazari, that accounts for an hour and 15 minutes of the app, one hour and 20 minutes when he was supposedly pointing the gun.

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It's accounted for.

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He's talking to Keslo for a good 30 minutes, then he's looking at these adult web searches for another 30 minutes, and then he's talking to his girlfriend for 14 minutes.

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All the while he's pointing a weapon,

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Well, I didn't know that until I looked at the evidence and realized that there's no way defense counsel could have read those call logs and the text messages and the web searches and figured this all out.

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Also, it's clear they didn't read the fact that Flores had been charged with overstaying his visa for 10 years.

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It was about to be, it was charged, fingerprinted and arrested.

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They didn't know that.

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They said that in the ineffective assistant counsel hearing.

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They didn't realize that.

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Well, if you don't realize that, it means you didn't read the discovery.

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Now, you're also pointing out that there should have been certain witnesses called.

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And this seems to have been a trial strategy to essentially cross-examine and attack the government's witnesses as opposed to putting forth a case.

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Because you seem to be focusing on not interviewing witnesses, not calling witnesses.

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But the trial strategy was to attack the government's case, not

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Right.

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And I'm submitting that you can't have that trial strategy if you don't interview them in the first place under the line of cases of USV Barber or USV Muhammad.

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You can't have a trial strategy if you don't know what the witnesses say.

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I mean, it's hindsight and convenient to later say, oh, we had a pure reasonable doubt strategy.

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We weren't going to call them.

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But you can't have that if you don't do the work in the first place, just like they didn't do a number of things in this case.

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Now, what they should have done with the discovery was ask for continuance.

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But they didn't, they just went ahead with the trial.

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Now the pure reasonable doubt strategy is extremely tenuous.

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in itself because they never actually argued it.

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In closing argument, they didn't say, ladies and gentlemen, the defense has no burden of proof.

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We have no burden to offer evidence.

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They didn't argue any of that.

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In fact, they uttered the words reasonable doubt twice and not in any context that would project any reasonable doubt strategy.

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That is an after the fact convenient excuse for not interviewing witnesses and not presenting evidence.

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And also the other thing is let's assume they had interviewed

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for the prejudice argument, Mr. Keselow and Mr. Sands and Ms.

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Impellers area.

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All the people that account for one hour and 15 minutes of one hour and 30 minutes when he was supposedly pointing a gun the whole time that he couldn't describe, by the way.

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And the government actually had to describe the gun to the jury and leading questions because he couldn't do it.

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But you also have to show likelihood of a different result.

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Yes.

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So how are you able to do that?

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We submit that that there's a strong likelihood there were to be different result because he was so badly impeached.

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I mean, he was impeached on.

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He told the police that that Mr. Brown approached him in the parking lot with the gun brandishing in the parking lot.

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When the McDonald's video came out a week later, I mean a week before trial, he changed it to, oh no, he pointed the gun in the car.

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Well, how did he get that wrong?

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Unless you're just making this up.

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He was impeached on that.

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He was also impeached on, he said Brown approached him in the parking lot with the brandishing the gun and forced him to open the trunk.

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In the video, it shows Brown walking in the parking lot, babbling on the phone with his friend Keslow, and it shows Mr. Flores opening the trunk for him.

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Well, why?

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Because Mr. Flores waited 17 minutes in the parking lot for no good reason.

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clearly to drive Mister Brown home from Aberdeen he's not going to drug take a lift drive all the way up to Aberdeen an hour and a half from DC and not be paid to drive back what does he do he waits in the parking lot during that wait he talks to his wife admits on the witness stand.

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couple times, and his wife got a U visa as a victim of violent crime and got to stay in the United States.

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He was going to be deported to El Salvador, which is extremely violent, horrible country to be deported to.

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And what?

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He saw an opportunity.

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This is a young black man.

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He smelled the cannabis.

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He had a suitcase.

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I mean, if you're going to pick somebody, that's the guy you pick to make up an armed kidnapping case.

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You just make it up.

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And so he thought about it 17 minutes in the parking lot.

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And he's like, OK, OK.

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And then they drive back.

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Meanwhile, Shane Brown's babbling on the phone with his friend Jordan Keslow.

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He's babbling with his girlfriend.

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He's looking at pictures of naked women.

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An hour and 15 minutes.

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I mean, the idea that if Mr. Keslow had been called as a witness, who is a cinematographer in Hollywood, no criminal history.

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He has highly impressive movie credits as a cinematographer.

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He would have testified to say, no, there was no argument.

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I overheard this.

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No, there was no argument at the trunk of the car.

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No, there was no argument inside the car.

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And also he would project a normal conversation.

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That's the other thing why it would have made a difference.

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They would project a normal conversation about life.

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They were talking about cryptocurrency.

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If a jury hears all that, just a normal conversation with three people,

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The idea that it would sway one juror to make a difference in this case is extremely compelling.

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And not to mention the 78 pounds of marijuana in front.

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Thank you.

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And good morning, ours, they please the court, Kevin Bernie of the United States.

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I'll focus my oral argument, just on most of the points that Helen just brought up, but I just want to at a broad level say that I think with all of these issues that he is raising,

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The record shows that the defense counsel was aware of them and made reasonable choices for all of their decisions.

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And that is all that Strickland and the Sixth Amendment requires.

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I couldn't make a reasonable choice when you haven't talked to the person who would be the subject of discussion.

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So, Your Honor.

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Your effort to suggest that trial judge made a finding there, at least for me, doesn't convince that trial judge.

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was not accurate in suggesting that the defense counsel had made a decision based on any conversation with Caldwell that's just not accurate.

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But in any event, I don't know how you can make a reasoned choice as defense counsel if you haven't talked to potential witnesses.

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So your honor,

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I think appellants on appeal is arguing that counsel never talked with Mr. Kessler.

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That is incorrect.

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That is not incorrect.

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I mean, I looked at your attempt to deal with what the trial court said.

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The trial court's attempt to give you some help, I find totally unpersuasive.

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There's nothing to indicate that the defense counsel had any reasonable conversation with Kessler and went through what any good defense counsel will do in talking with a witness.

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And you just don't have it in my view in the record.

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I understand that your honor disagrees.

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I mean, I would respectively disagree with your honor.

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Could I just make the record for why I disagree?

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Understanding, of course, that you do disagree.

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I mean, I'm looking at JA 966.

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And Mr. Farrelly says, I spoke to Jordan at least once, I think maybe twice before trial.

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There's some follow-up questions about what did he talk?

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He also said if he said I didn't talk to him, I didn't talk to him.

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But I think the wording, I think the exact wording of what Mr. Fairley says is important.

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Because the question is, Mr. Kessler testified that you did not interview him on the conversation as to what was said between him and Mr. Brown.

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Would you dispute that testimony?

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And all he says, if he says that I didn't, then that could be accurate.

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I don't understand.

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How can you possibly say that that's persuasive evidence in support of your position if the person being accused says, well, if he says that, and it could be accurate.

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A defense counsel who has interviewed or talked with or investigated potentially critical witness, at least in my experiences, does not forget it.

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Well, Your Honor, I would say that Mr. Fairley said several times that he was testifying four years after the events in question.

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And this is a factual finding that the district court made.

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That's right.

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He spoke with the district court.

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I'm not going to go over the exact words.

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I'm just telling you, having carefully read what the district court said, the district court finding

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to the extent that it is a fine it doesn't hold up is not clearly saying that the fence Council clearly investigated this potential would that's not what the district court said.

[00:14:47] Speaker 03:
Well the district court does say.

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On I'm looking at 1192 note to.

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The witnesses might be saying, Kessler being included in the witnesses here, that they never participated in a formal interview with counsel.

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The evidence does not support that allocation.

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Based on the facts noted above, and this report is quoting some of the quotes that I just said,

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Council's conversations with the witnesses were clearly substantive.

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The court will not quibble on semantics, i.e.

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conversation versus interview.

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The court credits trial counsel's impression of the status of these interactions, not those of the lay witnesses.

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So that would be a credit.

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That would post that he was never interviewed by trial counsel.

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Kessler says that, but there are many times when the district court credits Farrelly and Califat over Kessler.

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And he even says specifically- When the defense counsel said, I did interview him, and then I made an informed judgment as to whether to use him or not.

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Where is that?

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I'm missing it.

[00:15:53] Speaker 03:
So first of all, on the first part, when he says, I spoke with him, on JA 966, I spoke to Jordan at least once, I think maybe twice before trial.

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Then the follow-up question is, did you interview him as to what he said to Mr. Brown and what Mr. Brown said to him on the call?

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Answer, I don't recall with 100% specificity, I'm sure we did.

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I'm sure I said, what did you guys talk about?

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The claimant says it never happened.

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And when defense counsel was asked about him, he said, well, if he says I didn't interview him, I guess I didn't.

[00:16:31] Speaker 03:
But he doesn't say that exactly, Your Honor.

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He says I can't.

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He says something to that effect, right?

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I think the exact words are very important, Your Honor.

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He says, this is J967 to 968.

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Again, I can't be certain.

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I don't have, I went back through my file.

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I don't have notes on what Jordan and I talked about, which implies right there that they did talk about things.

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So if he says we didn't talk about it, then that definitely could be accurate.

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Mr. Fairley, throughout his testimony, is stressing that this happened four years after the fact.

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And he doesn't remember all the details of these conversations.

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But he remembers that he spoke with Kessler, and he says, I'm sure I would have discussed what Mr. Brown and they talked about.

[00:17:19] Speaker 03:
You're getting a lot more out of it than I got out of it.

[00:17:21] Speaker 03:
But let me just say this to wrap up my points on this.

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I understand the passages that your honor is looking at, and I've obviously put forward the passages that I'm looking at.

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But the district court made a factual finding, and that factual finding would be subject to clear error.

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Appellant has not even argued on appeal that the district court made clear error with regard to that finding.

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That is a factual finding.

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And the appellant has to show that there was clear error.

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Now, this court recently said in Antonio, under that standard review, a factual finding that is plausible in light of the full record, even if another is equally or more so, must govern.

[00:18:09] Speaker 03:
That's Antonio at 955, 63 F, 4th, 948, 955.

[00:18:16] Speaker 03:
So perhaps one could read the record,

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and even say it is more possible that Farrelly did not speak with Kessler.

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That would fail under this standard of review.

[00:18:29] Speaker 04:
The court credits trial counsel's impression of the status of these interactions, which to me means it includes trial counsel's indication, well, if he says I didn't talk to him, then maybe I didn't.

[00:18:42] Speaker 04:
I can't get anything more out of it.

[00:18:44] Speaker 04:
You're talking about clear error, clear error with respect to that.

[00:18:48] Speaker 04:
I would.

[00:18:50] Speaker 04:
But right before that.

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Counsel's impression.

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Counsel's impression was, if he says I didn't talk to him, then I didn't talk to him.

[00:18:59] Speaker 03:
But right before that, the district court says, based on the facts noted above, counsel's conversations with the witnesses were clearly substantive.

[00:19:09] Speaker 03:
That is a factual fine.

[00:19:11] Speaker 03:
It has support in the record.

[00:19:13] Speaker 04:
Counsel, it is not substantive in the sense that it's telling me anything.

[00:19:17] Speaker 04:
Substantive with respect to what?

[00:19:18] Speaker 04:
Because the trial court goes on to say what I just said, counsel's impression of the status.

[00:19:24] Speaker 04:
So where is the substance that supports your claim that counsel investigated this witness and clearly made an informed judgment that let's just let the government put in their case and we'll sit

[00:19:38] Speaker 04:
We'll say they haven't met their burden.

[00:19:40] Speaker 04:
Where is that?

[00:19:41] Speaker 03:
I would take two parts of the record and combine them to answer that question.

[00:19:45] Speaker 03:
First of all, on J966, Farrelly says in response to a question as to whether he discussed with Mr. Brown, what Mr. Brown said to him on the call, he says, I'm sure we did.

[00:19:58] Speaker 03:
I'm sure I said, what did you guys talk about?

[00:20:02] Speaker 03:
Then when it comes to whether he made an informed decision based on that,

[00:20:06] Speaker 03:
At the hearing, Mr. Farrelly testifies, and this is on JA 1022 to 1023, about the decision not to call Kessler, the decision not to call him.

[00:20:17] Speaker 03:
Not that he was just, you know, it never occurred to him.

[00:20:22] Speaker 03:
He was just not thinking about it at all.

[00:20:25] Speaker 03:
He didn't know about it.

[00:20:26] Speaker 03:
So just sort of generally, it wasn't worth it, I guess, would be the best way to put it, to water down the reasonable doubt defense by calling a witness with marginal value at best.

[00:20:39] Speaker 03:
So council made an informed decision based on what they knew.

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And I would just point out too, when council is making the decision, the record reflects that even Mr. Brown did not think that Mr. Kessler was important.

[00:20:55] Speaker 03:
J.A.

[00:20:55] Speaker 03:
799, Mr. Fairley says in his declaration, Mr. Brown did not feel strongly about calling Mr. Kessler.

[00:21:04] Speaker 03:
So, Appellant is saying, well, it's easy after the fact to rationalize all of this.

[00:21:08] Speaker 03:
Appellant is trying to, after the facts, point to small details that even Mr. Brown did not think was important at the time to try to get a new trial in this case.

[00:21:20] Speaker 03:
I see my time has expired.

[00:21:23] Speaker 03:
We've obviously spent a lot of time on Mr. Kessler.

[00:21:26] Speaker 03:
I'm happy to answer any other questions.

[00:21:27] Speaker 00:
With respect to the marijuana and then the comment about the naivety of defendant in that regard, how do you tie that together about bringing in that much marijuana, that kind of smell, that odor, and then say that, well, we were just trying to kind of have a picture of the defendant being naive?

[00:21:48] Speaker 03:
Well, I think it's actually effective.

[00:21:51] Speaker 03:
I think it was effective.

[00:21:53] Speaker 03:
Three people, both Califat, Farrelly, and the district court, presided over the trial, confirmed that the jury was amused when the marijuana was rolled in.

[00:22:02] Speaker 03:
So Pellin is saying, well, it had a noxious smell.

[00:22:05] Speaker 03:
I mean, there's no evidence in the record that the jury was offended by that or that they thought it was noxious.

[00:22:11] Speaker 03:
They were amused by it.

[00:22:13] Speaker 04:
The reason why- You used it in a way that was favorable for the defendant?

[00:22:17] Speaker 04:
Yes, because it's not- I don't know how you conjure up this notion.

[00:22:21] Speaker 04:
You have piles of marijuana, and you claim as well that the jury seemed amused.

[00:22:28] Speaker 04:
Amused like, we're going to put this guy away a long time.

[00:22:31] Speaker 04:
I mean, it's not amusing.

[00:22:33] Speaker 04:
There was no attempt by defense counsel to in any way mitigate what was damning evidence sitting there in piles.

[00:22:41] Speaker 04:
No attempt whatsoever.

[00:22:43] Speaker 03:
So, Your Honor, I think the word amusing, we haven't talked about how the jury, they seem to be amused, but the point is not whether the jury thinks it's funny or not.

[00:22:53] Speaker 03:
The point is whether it makes- Your point, not my point.

[00:22:56] Speaker 03:
Well, I'm trying to say, the point is whether it makes Mr. Brown look naive because he has all of that marijuana sitting in his apartment where anyone can smell it.

[00:23:08] Speaker 03:
When the police executed the search warrant, they could smell marijuana coming out of it.

[00:23:12] Speaker 03:
He's hiding them in suitcases.

[00:23:15] Speaker 03:
He's not elaborately hiding this marijuana.

[00:23:18] Speaker 03:
So if Mr. Brown is that naive, he's not a hardened criminal.

[00:23:23] Speaker 03:
He is not going to hold a gun to somebody's head in the car.

[00:23:27] Speaker 03:
That's the defense theory.

[00:23:29] Speaker 03:
And that defense theory seemed to have been born out because the jury acquitted Mr. Brown of every single gun charge in this case.

[00:23:38] Speaker 03:
They only convicted him of the non-gun charges.

[00:23:43] Speaker 03:
And if he had been convicted of 924 C, he would have had a seven-year mandatory minimum on top of everything that he is serving now.

[00:23:51] Speaker 03:
So the point of this, I would just say in discussion, is not to decide what is the best choice amongst all of these decisions that defense counsel faced.

[00:24:02] Speaker 03:
It's only to decide whether defense counsel acted reasonably.

[00:24:08] Speaker 03:
And on this record, especially given the many favorable outcomes that Mr. Brown often ultimately received, we would submit that this court cannot find that trial counsel was so unreasonable as to violate the system.

[00:24:24] Speaker 00:
But do you at least have that marijuana in the form that it was shown to the jury would have made the kidnapping more probable, that there might have been a sense of propensity evidence there?

[00:24:36] Speaker 03:
I think it makes the kidnapping more probable in the sense that he is trying to, he is in a hurry and needs to get back to his marijuana stash.

[00:24:48] Speaker 03:
But I think there would have been plenty of other evidence that he was a marijuana dealer.

[00:24:53] Speaker 03:
There's no disputes that at trial it would have come out that he was a marijuana dealer.

[00:24:58] Speaker 03:
And this court has essentially said that in his previous decision on the direct appeal.

[00:25:04] Speaker 03:
So I think any prejudicial without harmed him would be very slight.

[00:25:09] Speaker 03:
And meanwhile, it feeds into this larger defense strategy to portray him as an unable or unwilling to brandishing.

[00:25:20] Speaker 05:
Thank you, Bernie.

[00:25:26] Speaker 05:
Kobe will give you two minutes for a bottle.

[00:25:36] Speaker 02:
Good morning again.

[00:25:37] Speaker 02:
I just want to make a couple points.

[00:25:38] Speaker 02:
It cannot be this court's decision that is acceptable not to object to overwhelmingly prejudice evidence.

[00:25:47] Speaker 02:
It can't be.

[00:25:48] Speaker 02:
Overwhelmingly prejudiced evidence, prejudicial evidence.

[00:25:53] Speaker 02:
I mean, the 78 pounds of marijuana, even the judge said you can offer photographs.

[00:25:57] Speaker 02:
You don't have to just put it in front of the jury.

[00:25:58] Speaker 02:
I mean, he said that on the record.

[00:26:00] Speaker 02:
Not objecting to 78 pounds in front of the jury and where the prosecutor mourns obnoxious smell in favor of a photograph is a trial strategy.

[00:26:11] Speaker 02:
Society has enough problems.

[00:26:12] Speaker 02:
A jury is going to hold it against a bumbling criminal as much as a malicious criminal.

[00:26:17] Speaker 02:
I don't know how they distinguish between bumbling and naive versus malicious or nefarious, but the government somehow says that a trial tactic by a defense attorney that distinguishes between nefarious and bumbling is gonna make a difference with the jury.

[00:26:32] Speaker 02:
Jury's not gonna make a difference.

[00:26:34] Speaker 02:
Jury's gonna hold it against him.

[00:26:36] Speaker 02:
They're gonna say, we wanna bring order to society and we're gonna hold it against

[00:26:39] Speaker 02:
And if they had seen pictures, especially with marijuana being legal in the District of Columbia and certain portions, if they see pictures, it's going to have a completely different effect than a huge spread in front of them, $36,000 of spread in front of them.

[00:26:54] Speaker 02:
I want to say about Mr. Keslo.

[00:26:58] Speaker 02:
The evidence is undisputed that he did not interview.

[00:27:01] Speaker 02:
It's not a question of what standard.

[00:27:04] Speaker 02:
I mean, the standard is de novo by this court.

[00:27:06] Speaker 02:
No deference is given to the district court, but it is undisputed.

[00:27:10] Speaker 02:
And when the defense attorney said that on the witness stand, he said, look, I don't dispute it.

[00:27:18] Speaker 00:
In this court, and I looked at cases where we have actually granted ineffective assistance of counsel just to kind of take the temperature of the court and in the Loeffler v. Cooper decision where it showed that

[00:27:34] Speaker 00:
There was a discussion about a plea deal with respect to intent to murder, and then the council advised that you probably wouldn't get murdered because there was a shooting below the waist.

[00:27:45] Speaker 00:
Then the court found that deficient and defective because it's actually wrong advice.

[00:27:52] Speaker 00:
Another case, United States versus Knight, in which the client was incorrectly advised that the plea offer came with 10 years in prison, and then he rejected the plea offer and then actually got way more time, 22 years in the case of one defendant, 25 years in the case of another defendant, and again showing that the advice was actually erroneous.

[00:28:12] Speaker 00:
so help me out with we're talking trial strategy and then these cases where this court has said yes that's ineffective assistant counsel seems to be with actual erroneous advice your honor i would just direct the court i mean we have erroneous advice here like not advising on a on a um blind plea to try to suppress there's information in the record that the plea was never offered yes they admit we never

[00:28:38] Speaker 02:
recommended a blind plea to try to move to limit or suppress the 78 pounds of marijuana.

[00:28:44] Speaker 02:
They say that.

[00:28:45] Speaker 02:
That's just bad advice, and it costs them a responsibility penalty for sentencing.

[00:28:50] Speaker 02:
But other than that, I would just direct the court to look at USV Muhammad and USV Barber, where they call it a complete failure to investigate.

[00:29:02] Speaker 02:
When you don't interview critical, impeaching witnesses,

[00:29:05] Speaker 00:
I wasn't especially good at this.

[00:29:08] Speaker 00:
Interviewing any witnesses completely failed to investigate.

[00:29:12] Speaker 02:
Yes, it's a complete failure to investigate by their concession.

[00:29:15] Speaker 02:
They didn't interview Mr Keselow.

[00:29:16] Speaker 02:
They didn't interview Mr Sands.

[00:29:18] Speaker 02:
They don't dispute that.

[00:29:19] Speaker 02:
And he's on the call logs.

[00:29:20] Speaker 02:
You don't understand how important these witnesses are unless you read the call logs and say, oh my God, all the times match up to the armed kidnapping.

[00:29:27] Speaker 02:
Maybe he didn't do the armed kidnapping.

[00:29:29] Speaker 02:
Let me interview them.

[00:29:30] Speaker 02:
If you don't read those call logs, you don't understand the significance, and they clearly didn't read it.

[00:29:34] Speaker 02:
It's just a pretrial failure to read the materials has to be assessed against them, and it can't be a trial strategy.

[00:29:41] Speaker 02:
And I just want to emphasize a couple things.

[00:29:43] Speaker 02:
First of all, in that Muhammad case, my colleague here said it mattered because Mr. Brown wasn't

[00:29:49] Speaker 02:
um, emphatic about interviewing Mr. Keslow and he wasn't that great a witness.

[00:29:53] Speaker 02:
Well, Muhammad makes the point that says even if the defendant's depressed or despondent or doesn't think he should, that trial counsel should interview anyone, that doesn't matter.

[00:30:04] Speaker 02:
They haven't, trial counsel has an independent duty to investigate no matter what defendant says.

[00:30:09] Speaker 02:
And I also want to emphasize- Let me ask you one thing.

[00:30:12] Speaker 04:
Opposing counsel suggests that you don't make the claim that the finding, that this court was clear error.

[00:30:19] Speaker 04:
I'm looking at your brief again.

[00:30:20] Speaker 04:
I obviously surmise that that appears to be exactly what you're saying, that the factual findings were clearly erroneous.

[00:30:29] Speaker 04:
What is your response to them?

[00:30:31] Speaker 04:
You're not stating it the way counsel stated it, but do you think you raised the clear error objection?

[00:30:37] Speaker 04:
That's your responsibility.

[00:30:39] Speaker 02:
Absolutely, Your Honor.

[00:30:40] Speaker 02:
We raised the error by putting it directly before the court to dispute the district court's finding.

[00:30:47] Speaker 02:
And we ask that it be overdue.

[00:30:50] Speaker 02:
It's one of our claims.

[00:30:51] Speaker 02:
I mean, it's a claim before this court.

[00:30:53] Speaker 02:
And our claim before the court is that there was a complete failure to investigate by interviewing Mr. Keslo.

[00:31:00] Speaker 02:
We put it before the court.

[00:31:01] Speaker 02:
They opposed.

[00:31:02] Speaker 02:
And we were arguing it here before the court.

[00:31:05] Speaker 02:
And the first appeal did have pre-trial failure to do pre-trial investigation.

[00:31:09] Speaker 02:
That wasn't the first appeal.

[00:31:10] Speaker 02:
And that was remanded to develop a record on that.

[00:31:12] Speaker 02:
And so that is properly before the court.

[00:31:17] Speaker 02:
I also want to emphasize that what a close call this case was.

[00:31:22] Speaker 02:
So single witness, any one of these factors would have made a difference.

[00:31:28] Speaker 02:
Moving to object, the 78 pounds would have made it.

[00:31:30] Speaker 02:
And we know it was a close call because the jury was deadlocked except for one count, which had to be the unopposed count three.

[00:31:37] Speaker 02:
Deadlocked, and it was a compromised verdict.

[00:31:40] Speaker 02:
They found him guilty of kidnapping without a gun and not guilty of kidnapping with a gun when the only threat of force was the gun.

[00:31:48] Speaker 02:
Well, that's a logically inconsistent verdict that would be error if it was in a bench trial by a judge.

[00:31:54] Speaker 02:
But it's a compromised verdicts are allowed by juries

[00:31:57] Speaker 02:
in our system, poor juries under our system, but it shows with a deadlock that any slight difference would have made any, any, any one of these claims would have made a difference.

[00:32:07] Speaker 02:
And the standard is cumulative errors.

[00:32:08] Speaker 02:
It's not just one error.

[00:32:09] Speaker 02:
It's cumulative.

[00:32:10] Speaker 05:
All of these errors, all of the jury, the circuit has never said that that's the standard cumulative errors.

[00:32:18] Speaker 05:
That's not that cumulative errors.

[00:32:20] Speaker 05:
I mean, is there a case that says that's the standard for prejudice?

[00:32:25] Speaker 01:
Yeah.

[00:32:25] Speaker 01:
Yeah.

[00:32:29] Speaker 01:
I apologize if that's, I argued that and they didn't dispute it, but if I have the standard wrong, I apologize.

[00:32:39] Speaker 05:
Any further questions for my colleagues?

[00:32:41] Speaker 05:
Thank you.

[00:32:42] Speaker 01:
The case is submitted.