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Case number 22-34, United States of America versus William Galloway at balance.

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Ms.

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Mehta for the at balance.

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Mr. Hobel for the appellate.

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Ms.

[00:00:12] Speaker 04:
Mehta, good morning.

[00:00:13] Speaker 04:
Good morning.

[00:00:13] Speaker 04:
Erica Hashimoto from the Georgetown Law Center's litigation clinic.

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With the court's permission, Sophie Mehta, a third year law student at Georgetown will present argument for this.

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Okay, thank you.

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Ms.

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Miller, good morning.

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Good morning.

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Good morning, and may it please the courts.

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The district court committed two errors at trial, and I will address the issues in reverse order of how they appear in the briefs.

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First, the district court abused its discretion in admitting evidence of Mr. Callaway's prior conviction under Rule 404B,

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Second, it also erred in restricting defence counsel from cross-examining a key government witness about the very issues the government raised on direct examination.

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These two errors were harmful in this court's reverse and remand warning trial.

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First, although the government contends that the evidence in this case can support both actual and constructive possession, the evidence that it introduced belies this notion as it can only support actual possession.

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And the government's response has no answer to the question of when Mr. Callaway could have been in constructive possession of the virus at a time when he was not allegedly in actual possession of it.

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As the Supreme Court has noted, constructive possession is established when a person lacks physical custody over an object but still has the dominion and intent to exercise control.

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Mr. Callaway was not in a position to exercise dominion and control over the firearm, and this court has been clear that that is a determinative question in a constructive possession analysis.

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The firearm here was recovered in a public park across a creek that is removed from a situation where the firearm was found underneath a defendant's seat in a car or next to a defendant's feet.

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To hold that there is constructive possession here would have brought in the scope of this court's process.

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I'm not saying I think this is the right test, but I wonder what you think of this.

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Actual possession, that's when a weapon's recovered from a defendant's person.

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Constructive possession, the weapon's recovered from an area where the defendant was in or known to be in.

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Yes, Your Honor.

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I agree that the actual possession comes from when a defendant has direct physical possession over an object.

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So if that were the and again, I'm not endorsing the test, but if that were the test here, we have a weapon that was recovered from the area that the defendant was known to be in.

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It wasn't recovered right off of the defense person body.

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So that if this would be the test, then it sounds like this test would cut in the direction of constructive.

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No, because in this case, Mr Callaway, when he

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Allegedly, through the firearm across the creek, at that moment in time, he no longer has dominion and control over the firearm.

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And therefore, a constructive possession theory cannot be supported on this evidence.

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But even if this court were to find that the 404B evidence is admissible for a constructive possession theory, it should still be excluded on Rule 403 grounds.

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The government was clear that constructive possession was a fallback or alternate to its primary theory of actual possession.

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And the constructed possession theory had, at most, limited evidentiary support.

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The key reason why this evidence was so prejudicial was because it was overly broad.

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The government introduced that when Mr. Calloway was convicted of possessing a firearm in 2016, he had already been convicted of a crime with a penalty greater than one year.

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That prior act of evidence that he had already been convicted

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the identical crime of being a felon in possession is magnifies the risk of prejudice here and is irrelevant.

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Additionally, the final jury instructions here could not mitigate this prejudice as they failed to specify that the prior act's evidence would only be used to demonstrate knowledge under constructive possession theory, leaving open the possibility that the jury would use this evidence in convicting Mr. Callaway under an actual possession theory, which is foreclosed by Linares.

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Under either Rule 404B or Rule 403, this evidence was harmful.

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The sole evidence the jury knew of Mr. Callaway outside the events of October 4th, 2018 was that he'd been convicted of the identical crime of being a felon in possession.

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The prejudicial impact of this prior act's evidence substantially outweighs its probative value, which at most was minimal.

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What do you think the gap is between an evidentiary ruling that

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If I were a district judge, I would have made different.

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And an evidentiary ruling that I would have made that is air.

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I didn't say that very well.

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So you can imagine a district judge making an evidentiary ruling that you disagree with, but that it's within the range of discretion.

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And you can imagine a district judge making an evidentiary ruling that's so far out of the range of discretion that it is air.

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Why is this on the side of the line you want it to be?

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For two reasons, Your Honor.

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First, in light of this court's precedent in the United States versus Linares, under that case, if the evidence can only support actual possession, then Rule 404B evidence should be excluded.

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And even on 403 grounds, which

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does give the district court discretion here because the probative value of this prior act's evidence was so low.

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And that is why the prejudicial impact of it, given how identical it was, how reasoned it was, substantially outweighs the probative value.

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Turning to the confrontation clause.

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Before you do that, can you just address harmless error?

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I mean, you make a fair point.

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I wonder when ours, but when the evidence was over,

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got his fingerprints on the gun established to a certainty.

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Police eyewitness testimony that he's dumping gun inputs.

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I mean, this is this issue you're raising is just academic.

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Yes, your honor.

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The errors here would still be harmful for three reasons.

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First, as mentioned, the prejudicial impact of it.

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Second, this court assesses harmless error under cumulative standard.

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and the impact of the prejudicial prior evidence must be viewed in addition to the fact that a key government witness was precluded from cross-examining a key government witness.

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And though there is substantial DNA evidence here,

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The DNA evidence lacks a temporal aspect in the sense that it doesn't specify when Mr. Callaway possessed the firearm.

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And the government does bear the burden of proving that he possessed it on the night of events in question on October 4th.

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So he's there at that time and place.

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He goes in the woods.

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He comes back.

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They find the gun in the woods.

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His fingerprints are on it.

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That's not enough.

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In this case, your honor, in particular, because of the fact that there are two errors here under a cumulative standard.

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I'll let you come back.

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I understand the cumulative point.

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And if you win on the first argument, the one you're trying to get to,

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the case for homelessness becomes more difficult.

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Just assume for now that we checked your cross-examination point.

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We're just thinking about homelessness under Luthoris.

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I'm just not seeing why this matters.

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Even still, Your Honor, if there is only one error in this case, this court must pay attention to the fact that it was highly prejudicial.

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It was identical.

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present and in conjunction?

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I mean, maybe that's just positing that there was an abuse of discretion under 403, but there's always a separate harmless error analysis, which turns on the other incriminating evidence in the case.

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Had there been some conclusive evidence, such as video evidence of Mr. Calloway possessing a firearm?

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In that case, the error here would be harmless.

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But the DNA evidence here does lack that temporal aspect.

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And in light of that, it is still the government's burden to prove that Mr. Callaway possessed the buyer on October 4th, 2018.

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OK, I understand.

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You can go on to your other point.

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Briefly on issue of the Confrontation Clause, the government never engages with the critical fact that Ms.

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Palmer's testimony was central to this trial because the DNA expert's testimony

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depended on the jury's assessment of Ms.

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Palmer's credibility and her motives for testifying in this case.

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The government stated in its pretrial motion on JA 49, if the issue of testimonial bias came up, Mr. Calaway would have a limited right to cross-examine about it.

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And the government did elicit testimony that Ms.

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Palmer was aware of the DFS's loss of accreditation and that had no effect on her testimony in this case.

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In response to that, Mr. Calaway's questions only sought to determine

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whether Ms.

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Palmer's knowledge of the DFS' loss or accreditation and the reasons for it that any effect on her potential motive to lie will testify here.

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It's also important to note that what Ms.

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Palmer may have said and how this may have impacted the jury's impression of her credibility speaks to whether any error here was harmless.

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The error here would be the preclusion of cross-examination, and the government bears the burden of demonstrating a harmless error.

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I see that my time has expired.

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And in light of the foregoing errors, this court should reverse and remand.

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All right.

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We'll give you a couple of minutes in reply.

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Thank you.

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Thank you.

[00:10:41] Speaker 05:
Mr. Hobel.

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May it please the court, Mark Hobel for the United States.

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district court did not abuse its discretion in admitting 404 B evidence prior gun possession.

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It also did not abuse discretion in limiting cross examination of a evidence collection witness from the efforts.

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What's the theory of relevance?

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Doesn't involve a propensity inference, knowledge and intent of the fire.

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through a constructive possession theory, as in Garner.

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How does that work on the facts?

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I mean, there's, as I said, pretty good evidence that he had actual possession.

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I don't see how the facts might support the conclusion that he had constructive, but not actual possession.

[00:11:50] Speaker 03:
There's very good evidence that he had both actual and constructive possession.

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Nick Dury was instructed on both.

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without objection.

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What's the theory?

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What's the theory for constructive?

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I want to rewind the table a little bit from the gun.

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So let's start with the shots that are fired five minutes before Officer Jameson arrives on scene.

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There are four people including Calloway.

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They are seen just minutes later standing essentially on top of the shell casings that we know by stipulation were fired by this gun just a few minutes before.

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So you have the guns found also in proximity to Calloway in the wooded area.

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So you have a group of people

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you have somebody firing shots.

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There's no direct evidence that it's Calloway firing the shots.

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And in this case, we submit this is like Garner in which the, or recognized that the government had a heightened, in fact, a heightened requirement to prove dominion and control where there are multiple people on scene with access and there's a potential defense of one of these other people had exclusive possession of the gun.

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I know that that was in fact the defense that

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Halloway put on by calling his friend, Kevin Bryant, was also there to say, I, you know, that was my gun.

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Halloway never knew about.

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So knowledge and intent of this gun was squarely an issue.

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And then even if you, again, sort of fast forward.

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Haven't you left out that Halloway ran to the creek?

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That's right.

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And that's where I'm

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I'm going next.

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The next stage of this is when Officer Jameson shows up.

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He sees Callaway, the only one of the group, moving into the wooded area near where the gun is later found.

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Again, Garner, this court noted that Garner's movements towards the object in question, the gun in question, that supported a constructive possession here.

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So the jury could

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A reasonable jury on these facts could find that one of the friends stashed the gun in the woods, and then Calloway sort of knows this and is later going to get the gun.

[00:14:05] Speaker 03:
I think a reasonable jury could.

[00:14:09] Speaker 03:
I'm not sure I want to, it needs to go as far as fine.

[00:14:11] Speaker 03:
A reasonable jury just needs to entertain a, it could entertain a reasonable doubt that it was Callaway that fired the gun, but it could find beyond a reasonable doubt that Callaway standing with, standing with that group, his DNA, his DNA all over the, I believe it was DNA, not fingerprints.

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It was DNA all over the gun.

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Yeah.

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Magazine.

[00:14:30] Speaker 03:
Yeah.

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Um, that, um, that Callaway, uh,

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knowingly exercised dominion and control at a time that he was not actually in possession of the gun.

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And again, it's just the jury's just got to entertain a reasonable doubt as to who actually fired the gun.

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As to the movements into the woods, that is evidence suggesting, again, evidence suggesting his connection, Cowley's connection to that gun, his knowledge of the gun, even if the jury, and the jury, of course, could reasonably infer he tossed the gun.

[00:15:05] Speaker 03:
you know, that is not, um, that does not mean well, that is not the driven for it to add to draw an order.

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In other words, this isn't like Lenaris in which the jury was forced into a disjunctive choice between actual possession or no possession at all.

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Constructed possession was very much on the table.

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The jury was instructed on it and without objection from Callaway.

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Um, and the defense that Callaway put on was, um, that one of the people they are with, um,

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uh, they are with, uh, Callaway, Kevin Bryant at exclusive possession of the gun that Callaway didn't know.

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And one thing I want to respond to from, um, Callaway's applied brief as to Kevin Bryant, um, just the sequencing and when, and when that information comes up, um, the relevant, I guess, error that they're alleging is the

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admission of the evidence.

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The evidence for the evidence is admitted at the end of the government's case.

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That morning is when the defense counsel shows up in the middle of the government's case and says, Your Honor, I have a defense witness who is going to I just learned is going to claim that he had possession.

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It was it was his

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So, you know, at the moment that the evidence is admitted, and I think Garner says specifically, we look at this from the, at the time the evidence was admitted.

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I know in Cassel II, there was a similar issue where the district court revisited its pretrial ruling in light of the way the defense put on its case.

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But at the time the evidence is admitted, the district court is aware that the defense is going to call a witness who's going to claim exclusive possession.

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So, knowledge and intent are just, you know, at the foreground that the evidence comes in.

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So, Rule 404b is a rule of admission.

[00:16:57] Speaker 02:
I have a couple of Confrontation Clause questions.

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I don't want to cut you off if you got one last huge point you need to make.

[00:17:05] Speaker 02:
No, no, no.

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I was just going to point out that on 403 that it was substantially provative.

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This Court has noted that this type of evidence is substantially provative.

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little prejudice given the eliminate instruction.

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With respect to the confrontation clause issue.

[00:17:23] Speaker 02:
Let me ask mine.

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Yeah, I'm sorry.

[00:17:25] Speaker 02:
I'm very sorry.

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Is it conceivable that there could be a limit on cross-examination that does not violate the rules of that clause, but does violate the code?

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I, you know, in the, in the context of the testimonial non testimonial witness absent that, that, that area of the confrontation clause, maybe yes.

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In the terms of how cross examination is in this other area of the confrontation clause, limiting cross examination.

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have a hard time seeing how you could have a district court could not have used discretion under Rule 403, but still.

[00:18:18] Speaker 02:
And I have a standard of review.

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Sorry.

[00:18:20] Speaker 02:
Okay.

[00:18:22] Speaker 02:
Uh, standard of review question.

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Sometimes confrontation clause issues are reviewed.

[00:18:27] Speaker 02:
Novo.

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Sometimes they're reviewed for abuse of discretion.

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Think you both agree.

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It's abusive discretion here.

[00:18:34] Speaker 02:
I agree it's abuse of discretion, but what is the line there?

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And when we review a competition clause question for De Novo and versus abuse of discretion.

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I think abuse of discretion encompasses legal error.

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So if the defense were alleging a legal error,

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I think it would be de novo, but here the defense is just essentially is somewhat inflating the 403 and the

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clause issues and saying the limits placed on cross-examination were just too stringent.

[00:19:13] Speaker 03:
I think that's a classic issue, a classic 43 issue is subject to abuse of discretion, and the district court has very, very broad discretion in this area.

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And I just know with respect to the DSS issue, I think where the parties are actually in agreement is that

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we're in agreement on a lot of facts here, which is that the misconduct at the U.S.

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had nothing to do personally with Katrina Palmer this witness.

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that she engaged in routine evidence collection and that that swatting the gun for a magazine for DNA and that's it.

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And that she performed that work in 2018 before the investigations that led to the accreditation loss at even a risk.

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And of course, her report that she authored came into evidence documenting her work from that.

[00:20:06] Speaker 03:
So, you know, from the, um,

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the district court did not abuse discretion allowing some limited costs in this issue, but in cutting it off before things went down or rather whole with the defense counsel.

[00:20:22] Speaker 03:
So unless there are any further questions, we would ask this court to affirm.

[00:20:27] Speaker 05:
Thank you.

[00:20:29] Speaker 05:
Ms.

[00:20:30] Speaker 05:
Meadow, why don't you take a minute?

[00:20:40] Speaker 00:
Thank you, your honors.

[00:20:40] Speaker 00:
In regard to the 404B issue, the government still has not pointed to a time Mr. Callaway would have been in constructive possession of the firearm at a time when he was not allegedly an actual possession of it.

[00:20:53] Speaker 00:
Mr. Callaway did object to this issue at the motions hearing, which is sufficient to preserve this issue.

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Second, this court has been cleared that the threshold level of cross-examination that must be allowed is cross-examination into witnesses' motives and bias.

[00:21:08] Speaker 00:
Here, the government

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did raise the issue of DFS's loss of accreditation on direct with Mr. Palmer.

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And perhaps if this issue had not come up, the abuse of discretion question would be closer, but the government opened the door to this issue.

[00:21:22] Speaker 00:
Third, the government does bear the burden of demonstrating harmless error in this case.

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And specifically, it must demonstrate that the error at hand did not have an effect on the verdict, not whether the evidence absent the error would have been sufficient.

[00:21:36] Speaker 00:
Finally, this court does consider harmless error

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under a cumulative standard, viewed in the aggregate, restriction across examination, and the admission of real 404B evidence was harmful.

[00:21:48] Speaker 00:
Mr. Callaway had a right to inquire into Ms.

[00:21:50] Speaker 00:
Palmer's motives and bias, and the jury should not have learned this prior conviction.

[00:21:54] Speaker 00:
We would ask this court reverse and remand.

[00:21:57] Speaker 00:
Thank you.

[00:21:58] Speaker 05:
All right.

[00:21:59] Speaker 05:
Thank you, Ms.

[00:21:59] Speaker 05:
Netta.

[00:22:00] Speaker 05:
And you were appointed by the court to represent

[00:22:04] Speaker 05:
Mr. Callaway, and we thank you for your very able assistance.

[00:22:08] Speaker 05:
We thank the entire team.