[00:00:00] Speaker 02: Case number 24-30-05, United States of America at balance versus Roberto Adams. [00:00:07] Speaker 02: Mr. Hobel for the balance. [00:00:08] Speaker 02: Mr. Kramer for the appellee. [00:00:12] Speaker 02: Good morning. [00:00:12] Speaker 04: Good morning, Your Honors. [00:00:14] Speaker 04: May it please the court, Mark Hobel for the United States. [00:00:17] Speaker 04: I'd ask to reserve two minutes for rebuttal, please. [00:00:22] Speaker 04: Defendant Roberto Adams failed to carry his burden on plain error review [00:00:29] Speaker 04: to show that the inadvertent omission of the Carter prophylactic instruction actually prejudiced him and affected his substantial rights. [00:00:38] Speaker 04: The district court erred in concluding otherwise. [00:00:42] Speaker 01: Based on... It doesn't matter that it was inadvertent, does it? [00:00:46] Speaker 04: On plain error? [00:00:47] Speaker 04: No, but it was inadvertent. [00:00:51] Speaker 04: But the district court, in order to correct that error, [00:00:57] Speaker 04: watered down the plain error prejudice standard and relied on the speculative possibility that the jury might have held the defendant's silence against him. [00:01:10] Speaker 02: How are they ever gonna know actually? [00:01:13] Speaker 02: Everything has to be speculation. [00:01:15] Speaker 02: There's no way to know what the jury actually would have done. [00:01:17] Speaker 02: In any case, it involves either evidentiary information or evidentiary, correct? [00:01:25] Speaker 04: Right. [00:01:26] Speaker 04: And on plain on plain error review, that uncertainty weighs against the defendant. [00:01:30] Speaker 02: You can never have plain error review when you have to just try to figure out how the jury would have resolved something in a counterfactual world. [00:01:39] Speaker 04: Certainly not. [00:01:41] Speaker 02: We've acknowledged that fact. [00:01:43] Speaker 02: This prong requires some speculation. [00:01:46] Speaker 02: If you aren't going to have hard with the rare case, you have hard evidence as to what the jury was thinking and how it would have affected them. [00:01:53] Speaker 04: Right. [00:01:53] Speaker 04: And the Newoy case, not maybe Ms. [00:01:55] Speaker 04: Brown said, but the Newoy case in which this court has acknowledged that the reasonable property inquiry is inherently speculative. [00:02:01] Speaker 04: I believe that's the language that Adams quoted. [00:02:04] Speaker 04: That case involved a much firmer factual foundation than the court had here. [00:02:08] Speaker 04: In that case, the defense attorney essentially threw away the only possible duress defense to conviction there by failing to call an expert. [00:02:18] Speaker 04: That was an ineffective [00:02:19] Speaker 04: assistance case, but the court at least had something to point to rather than the sort of inherently speculative. [00:02:27] Speaker 02: The district court went through a lot of concrete things about this case, a lot of concrete factual information, a lot of observations that he had a front row seat to. [00:02:37] Speaker 02: He didn't just sort of say, well, maybe [00:02:40] Speaker 02: I mean, I don't understand the speculation or with acknowledged that we don't know we're looking into a black hole here. [00:02:46] Speaker 02: And so we look at the whole of the district court's opinion, which is very specific and very concrete about the concerns about, you know, [00:02:54] Speaker 02: the weaknesses in the evidence or what a close call it could have been on the knowledge question, had a reason for why this could have impacted the deliberations on the second two counts, given the nature of the end, given the closeness of the evidence. [00:03:12] Speaker 02: And so that's not raw speculation. [00:03:15] Speaker 02: That seems to be exactly the type of analysis that we've said, it's just the nature of the beast in this area. [00:03:23] Speaker 04: Well, the fact that the district court cited to the record does not insulate its reasoning error. [00:03:29] Speaker 02: I didn't say just as they cited to the record. [00:03:31] Speaker 02: There was specific reasoning given here, and it seemed like if we assume it's reasonable, if we conclude that it's reasonable, that it reflects the expert view that the district court judge had. [00:03:42] Speaker 02: Um, and that the analysis of how in this case with its twists and turns on the different nature of the first and second applications could have made the differentiation followed up exactly on the differentiation that the jury made. [00:03:58] Speaker 02: Right. [00:03:58] Speaker 02: And what was in that context, right? [00:03:59] Speaker 04: And what we submit is the possibility that it could have made a difference under the Supreme Court's holding in the United States v Marcus. [00:04:06] Speaker 04: A possibility of prejudice is not enough for a defendant to carry his burden [00:04:11] Speaker 04: on plain error review. [00:04:12] Speaker 04: That's the fundamental distinction between plain error and harmless error. [00:04:16] Speaker 04: And as we pointed out in our brief, the district court here applied a standard that was substantially more equivalent to substantial probability of an effect on the jury verdict. [00:04:26] Speaker 02: That's prejudice. [00:04:27] Speaker 02: That's our words. [00:04:28] Speaker 02: That's the rules. [00:04:29] Speaker 04: Right, and I again point the court to the actual reasoning at page 29 of the transcript of its oral ruling, where it stated a reasonable jury could have acquitted adrenaline. [00:04:39] Speaker 04: It may have wondered. [00:04:41] Speaker 04: A reasonable jury might have wanted to hear from the defendant. [00:04:44] Speaker 02: But that's the kind of speculation that is just going to have to happen, right? [00:04:48] Speaker 02: He can't say... Are you complaining the district court didn't say the jury would have or did? [00:04:56] Speaker 02: Is that the objection? [00:04:59] Speaker 04: I think that it relied on a residual possibility of prejudice in disregarded what we acknowledge was damning evidence on the count of conviction, even it acknowledged damning evidence. [00:05:11] Speaker 04: It was a split verdict. [00:05:12] Speaker 03: Doesn't that tell you something about what you could read into that as well? [00:05:17] Speaker 04: In this case, it does. [00:05:18] Speaker 04: And the district court discounted that because it found that it was not unassailable [00:05:22] Speaker 04: evidence. [00:05:23] Speaker 04: But here the split verdict shows that the evidence was circumstantial. [00:05:28] Speaker 03: Now I know that in a jury charge you would look to evidence as direct and circumstantial weighing evenly that they could account for both. [00:05:35] Speaker 03: But still, you know, when you look at circumstantial evidence plus a split verdict, how does that affect your decision? [00:05:42] Speaker 04: It's argument, right? [00:05:43] Speaker 04: It weighs in our favor. [00:05:45] Speaker 04: And here's why. [00:05:46] Speaker 04: The split verdict is itself evidence that the jury considered the actual evidence in the case and drew a distinction between the two counts. [00:05:56] Speaker 04: The evidence on count two was absolutely stronger than the evidence on count one where the jury acquitted. [00:06:03] Speaker 04: The second loan fraud was the second time that Adams pulled the same fraud on the government. [00:06:09] Speaker 04: By that time, he had already spent the first loan proceeds on gambling, on vacations, not on paychecks for his small business. [00:06:17] Speaker 04: He had already received multiple emails directly from his loan processor that set forth requirements for the second draw loan that he knew he could not meet. [00:06:30] Speaker 02: We had the same problem that he didn't see the papers that were submitted to the government. [00:06:34] Speaker 02: He didn't sign the papers that were submitted to the government. [00:06:37] Speaker 02: And so, again, for knowledge, you had the same sort of trouble or difficulty that you had for the first count, but then you had this additional evidence. [00:06:47] Speaker 02: But that's when the district court reasoned that, as they said, why didn't he explain himself? [00:06:54] Speaker 02: That could have factored into his decision. [00:06:56] Speaker 04: right. [00:06:57] Speaker 04: And by the time of the second alone, there was just a lot more evidence such that the even the government in rebuttal said to the jury, even if you don't think that he even if you can't infer you recognize that your first count was weaker, right? [00:07:12] Speaker 02: That doesn't mean that your second and third counts were so strong that the district court [00:07:17] Speaker 02: abused his discretion in concluding that there was prejudice here and that the fourth prong, the integrity of the proceeding, were both implicated. [00:07:27] Speaker 02: You didn't have overwhelming evidence on the knowledge question. [00:07:32] Speaker 02: You just didn't have overwhelming evidence on the knowledge question. [00:07:36] Speaker 02: You know, I don't matter what I would think one way or the other on a jury district court analyze it. [00:07:43] Speaker 04: The district courts found that we had damning evidence. [00:07:46] Speaker 04: I'm not sure what the distinction between damning and overwhelming is, but the district court's perspective, because it [00:07:51] Speaker 04: effectively made the government disprove the possibility that the amish that the jury held the defendant silence against him, even though there was no comment here by anybody in this case. [00:08:06] Speaker 04: Adams is pointing to no comment by anybody in this case that could even indirectly be seen as a comment on his silence. [00:08:15] Speaker 04: And that's United States government. [00:08:17] Speaker 02: Absolutely, that's a credit to the credit of the prosecution. [00:08:20] Speaker 04: Right. [00:08:21] Speaker 04: But in United States v. Monahan, this court noted that this is the type of case where there's no comment that even by the wildest stretch of the imagination could be seen as commenting on the defendant's silence, where this type of prophylactic instruction is likely to do the least good for the defendant. [00:08:37] Speaker 04: So you have damp. [00:08:40] Speaker 04: No, that was a case in involving the but. [00:08:44] Speaker 04: You know, Katala, a split verdict case, smallest split verdict case. [00:08:48] Speaker 04: Both of those cases this court held this court found that the split verdict demonstrated a lack of prejudice. [00:08:54] Speaker 03: What would you say would be the least likely to do any good for the defendant to offer this kind of instruction when that is an instruction that is always given and the district court recognized their error and not given it, particularly at the request of the defendant. [00:09:10] Speaker ?: Right. [00:09:10] Speaker 04: Well, it's it's not always given it is at the request of the defendant. [00:09:14] Speaker 03: So it's not generally given. [00:09:15] Speaker 03: I mean, as a trial judge, you're going to put that in your own set of instructions even before a defendant asked you. [00:09:22] Speaker 03: That's just one of the common instructions that would be part of any criminal process. [00:09:28] Speaker 04: Well, well, no, the as we say in our brief, there are many, many more recent cases after Carter that say reasonable minds can differ on whether this instruction actually does [00:09:38] Speaker 04: good for the defendant. [00:09:39] Speaker 04: It's a prophylactic instruction. [00:09:40] Speaker 02: I do think it's... They were asking for it from the beginning, from time and time again. [00:09:44] Speaker 02: They didn't obviously object at the end, but they asked time and again, and there's no doubt, both on Judge Child's question, that it has to be in your instructions then. [00:09:52] Speaker 04: Well, if I could, that's not exactly the case you're on. [00:09:55] Speaker 04: So the initial request came in the joint pretrial statement before there was any indication before before the decision made that Adams was not going to testify. [00:10:04] Speaker 04: In fact, throughout the trial, if anything, it seemed more likely that he would testify at the very end when he determined that he would not testify. [00:10:14] Speaker 04: And the court inadvertently omitted the instruction [00:10:18] Speaker 04: And even gave the parties multiple opportunities to review the instruction, the final instructions, even told the party speak now or forever hold your peace. [00:10:27] Speaker 04: If you see any errors and it's the final instructions were 20 pages, just 20 pages gave them an opportunity. [00:10:33] Speaker 04: You can see this in the transcript to review them. [00:10:35] Speaker 04: At that point in time, and perhaps it was inadvertence, the defense did not object. [00:10:40] Speaker 04: And even if it's inadvertent at that point, the best you can say is that when it really mattered, when the rubber hit the road, the defense did not view that instruction as so important that they were scrutinizing the 20-page jury instructions with time to see whether it was in there. [00:10:58] Speaker 02: So... I mean, the government didn't notice either. [00:11:01] Speaker 04: That's right, but we're not. [00:11:02] Speaker 04: We're not a lot easier. [00:11:04] Speaker 04: One of the two you would have noticed, of course, but I'm playing error. [00:11:08] Speaker 04: The burden is on the defense to demonstrate more than this. [00:11:11] Speaker 02: You know, neither side noticed. [00:11:14] Speaker 02: And again, I wasn't in the room. [00:11:16] Speaker 02: The district court was. [00:11:17] Speaker 02: The district court has a sense of the pace of the trial. [00:11:20] Speaker 02: What was going on in everybody's heads? [00:11:23] Speaker 02: What could have possibly led to this mistake? [00:11:25] Speaker 02: The district court? [00:11:26] Speaker 02: I mean, three, three people here who didn't notice. [00:11:29] Speaker 02: this error. [00:11:30] Speaker 02: So it's a little hard to say. [00:11:32] Speaker 02: I mean, obviously, it's first and foremost on on the defense, but right at the legal, it is a legal question. [00:11:42] Speaker 04: So this court does apply de novo review to the prejudice prong of plain error. [00:11:46] Speaker 04: And I note that although the district was case for that, uh, or Ruchi that the reasonable probability of a different outcome. [00:11:52] Speaker 04: Admittedly, that was Brady materiality, but it's substantially the same standard. [00:11:55] Speaker 04: It's a legal question that this court reviews de novo and and and a district court by definition of uses find any cases. [00:12:05] Speaker 02: It's not that often that it's the district court applying plan error in the first instance. [00:12:09] Speaker 04: That's right. [00:12:10] Speaker 02: But that I mean, it's if it's de novo, but surely we have to take into account in the district court's unique capacity to evaluate prejudice much from the live case much easier than we can from a cold record. [00:12:27] Speaker 02: So how would that factor into your de novo review standard? [00:12:30] Speaker 04: Well, I think as your honor said, the district court just doesn't apply plain error that much. [00:12:34] Speaker 04: Who applies plain error frequently? [00:12:36] Speaker 04: This court. [00:12:37] Speaker 04: Nobody applies. [00:12:37] Speaker 02: I understand, but I think we're also quite clear that the district court has a front row seat, has a capacity to object to [00:12:46] Speaker 02: evaluate the impact of evidence, the course of the litigation, the course of the trial. [00:12:52] Speaker 02: If you were on the other side, you'd be arguing exactly this point. [00:12:55] Speaker 02: And that district court has the expert view. [00:12:58] Speaker 02: And that has to count for something in this analysis. [00:13:01] Speaker 02: You're saying that it plays no role whatsoever in our de novo review. [00:13:06] Speaker 04: Well, that's sort of the nature of de novo review, that it's a fresh. [00:13:11] Speaker 02: That's why I'm questioning your de novo review. [00:13:13] Speaker 04: Right. [00:13:15] Speaker 04: It may be in a case in which their reality is a legal concept. [00:13:20] Speaker 02: And Brady, what we're asking here, though, is there's not a legal error here, a fundamental legal error. [00:13:28] Speaker 02: I know you've argued about Burt and stuff. [00:13:29] Speaker 02: But really, we're just evaluating the district court's decision here, whether it's substantiated. [00:13:34] Speaker 02: And there's many cases, if at all, where [00:13:39] Speaker 02: we reverse a district court just on the grounds that it misweighed the impact of an instructional error on the jury in light of the evidence in the case. [00:13:53] Speaker 04: I think that this court generally reviews the prejudice requirements. [00:13:59] Speaker 04: Brady and Strickland are the sort of more frequent examples. [00:14:03] Speaker 04: in which this court takes a de novo review of whether there's a reasonable probability of a different outcome, which is the same standard that is applied to the district court's authority to correct an unpreserved error under Rule 52B. [00:14:15] Speaker 02: Who's better at evaluating what the implications of the split verdict were in this case? [00:14:21] Speaker 02: Us or the district court? [00:14:22] Speaker 04: I don't think that I think in this case, in which it's a largely documentary case, it's not that this is based on the credit, the evaluation of the credibility of witnesses documents. [00:14:32] Speaker 04: They're all in front of in front of both courts and evaluating what possible inferences could could be raised by that by those. [00:14:39] Speaker 04: I don't think the district court. [00:14:40] Speaker 04: The district is not in a better position than this court. [00:14:42] Speaker 02: What is more when it comes to plane air again, as your honor pointed out earlier, that's a position the US government wants to commit itself to in cases going forward as well, where you're on the other side. [00:14:52] Speaker 02: or you're the appellee, that the district court has no better capacity to evaluate the ebb and flow of the trial and the course of evidentiary submissions, the closeness of a jury verdict and how it may have worked itself out. [00:15:13] Speaker 02: That's the government's position. [00:15:14] Speaker 02: No deference whatsoever to the district court. [00:15:17] Speaker 02: I just want to make sure that's the US government's position. [00:15:20] Speaker 04: With respectfully your honor, I think that the question before the court is is is narrower. [00:15:24] Speaker 02: No, you just made. [00:15:25] Speaker 02: You just made an argument about legal standard of de novo review that I understood and tell me if I'm wrong to be zero deference to the district courts front row seat and ability to evaluate the evidence. [00:15:37] Speaker 02: and to understand the implications of error within the course of the trial because of that expert view. [00:15:44] Speaker 02: And you said, no, it's just an overview, no deference to the district court. [00:15:47] Speaker 02: I'm trying to make sure that's the United States government's position. [00:15:51] Speaker 02: That's a legal position. [00:15:53] Speaker 02: That would not be just this case. [00:15:55] Speaker 02: That's going to be in every case going forward, even when the district court has come out on the top side of the district court's analysis. [00:16:01] Speaker 02: Is that the position of the US government? [00:16:03] Speaker 04: But there's de novo review to the third prong. [00:16:05] Speaker 02: No deference whatsoever to the district court's ability to make judgments about the impact of error on the trial. [00:16:12] Speaker 04: I'm sorry if I'm not entering, but we've taken a position here, Your Honor, which is that... I'm trying to make sure I understand what that position is, because you said we think it's de novo review. [00:16:21] Speaker 02: And I said, well, how does the district court's expert view factor in? [00:16:24] Speaker 02: Is your position, yes or no, zero? [00:16:29] Speaker 02: deference to the district court's analysis and consideration of the evidence and the ebb and flow of the trial and upfront front row seat to. [00:16:41] Speaker 04: I don't think that zero can see it. [00:16:44] Speaker 04: I don't think it's a binary, Your Honor. [00:16:45] Speaker 04: I think it's. [00:16:46] Speaker 02: That's normally what DeNova review is, and I asked you what is the role for the district court's expertise, and I was hearing none from you, but if there's a role, let me know. [00:16:53] Speaker 04: I don't think it's I it is a binary in the sense that de novo review means this court takes a fresh look and exercises independent judgment. [00:17:01] Speaker 04: The court, of course, can give the district courts views and its ruling as much weight as it deserves. [00:17:06] Speaker 04: And it may be in certain cases, it may be entitled to a great deal of weight. [00:17:11] Speaker 04: But in this case, in which the court did painstakingly lay out its reasoning, [00:17:16] Speaker 04: and its reasoning was flawed because it was based on the mere possibility of prejudice. [00:17:21] Speaker 04: The mere possibility that the that the jury held and drew an inference based on the defense decision not to testify when there was no suggestion whatsoever made in this case that it should do so. [00:17:37] Speaker 04: This is not that case where the district courts reasoning is entitled to that type of weight. [00:17:43] Speaker 03: And then go to structural error versus us looking at this under Rule 52B. [00:17:49] Speaker 03: What position are you taking? [00:17:51] Speaker 03: Do you want us to go to the Carter analysis for structural error or do we just go under 52B and not need to reach that? [00:17:57] Speaker 04: Well, Carter error is not structural error. [00:18:01] Speaker 04: It's regular constitutional trial error. [00:18:05] Speaker 04: The clearest indication of that is the fact that Griffin, error under Griffin v. California, which can be a judge's direct comment in its instructions on a defendant's decision not to testify, is not structural error. [00:18:20] Speaker 04: That's Chapman v. California. [00:18:25] Speaker 04: And the Carter instruction is kind of a prophylactic instruction for Griffin's prophylactic instruction. [00:18:32] Speaker 04: So it just stands to reason and logic that Carter error is not structural. [00:18:37] Speaker 04: I'd note too that as we addressed in our reply brief, and I can just point this point briefly, rule 52B applies to structural errors as well. [00:18:47] Speaker 04: But Carter error is not structural here. [00:18:49] Speaker 04: It's ordinary trial error. [00:18:51] Speaker 04: There's no need to reach that point. [00:18:54] Speaker 04: Um, so I see I'm well, I'm well out of time. [00:18:57] Speaker 04: Um, uh, so we would ask this court, uh, to reverse the new trial. [00:19:02] Speaker 02: Thank you so much. [00:19:02] Speaker 02: We'll give you your two minutes. [00:19:04] Speaker 02: Thank you. [00:19:13] Speaker 00: Good morning, your honors. [00:19:13] Speaker 00: May it please the court, Ajay Kramer, excuse me, Ajay Kramer on behalf of Mr. Adams. [00:19:19] Speaker 00: Your Honor, the government has argued this case as if you're applying plain error to the situation. [00:19:27] Speaker 00: But the district court already did that. [00:19:29] Speaker 00: And all you're reviewing is for abuse of discretion of that. [00:19:33] Speaker 00: And the government has not pointed out any abuse of discretion on the district court. [00:19:38] Speaker 00: It's claimed that the district court applied the wrong standard as simply false. [00:19:43] Speaker 00: The last thing the district court said, one of the last things the district court said, [00:19:47] Speaker 00: Had the court given the instruction, there is a reasonable probability that the jury would have been less willing to take the inferential steps required to convict Leaps and would have acquitted the defendant. [00:19:58] Speaker 00: That is exactly the correct test on error, like plain error like this, on prejudice. [00:20:05] Speaker 00: The district court then went on on the fourth prong to say, [00:20:09] Speaker 00: The parties both requested the adverse instruction. [00:20:13] Speaker 00: The government says it's not quite correct that the defendant was requesting that. [00:20:18] Speaker 00: Again, that is simply false. [00:20:20] Speaker 00: The district court said that both parties requested the adverse instruction and the court agreed. [00:20:25] Speaker 00: The court and the parties discussed the instruction after defense counsel advised the court that the defendant would not testify and then the court accidentally omitted the instruction. [00:20:36] Speaker 00: It did not catch its error and neither did the parties. [00:20:41] Speaker 00: The district court then, previously, prior to that, reviewed in great detail the evidence in the case, the law, and how to apply the facts to the law. [00:20:52] Speaker 00: Let me just, in the Baptiste case, which I cited in length in the brief, the court talked about the importance of the district court having sat through the trial. [00:21:00] Speaker 00: This was a two-week trial, the district court. [00:21:03] Speaker 00: But this court in Catala, [00:21:04] Speaker 00: said the same thing at page 641 to 642. [00:21:08] Speaker 00: We owe deference to the district court's assessment of a statement's prejudicial impact on the jury. [00:21:15] Speaker 00: Judge Cooper was present for the entire trial and could see how the jury reacted to the remarks. [00:21:22] Speaker 00: In Katala, the court went on to say, [00:21:24] Speaker 00: We have to accord due weight to the district courts on the ground judgment. [00:21:28] Speaker 00: And yet the government asks you to ignore the district court's judgment and asks you to ignore the statements in Katala. [00:21:36] Speaker 00: As for, I'm sorry. [00:21:38] Speaker 00: I'm sorry. [00:21:39] Speaker 02: Should the third prong. [00:21:40] Speaker 02: of our, as we review the district court's application of the third prong of plain error. [00:21:46] Speaker 02: Sure, have you been DeNovo abuse of discretion? [00:21:50] Speaker 02: How does it? [00:21:51] Speaker 00: It should be. [00:21:51] Speaker 02: On the one hand, it's kind of like a materiality standard. [00:21:54] Speaker 02: On the other hand, we've talked about the district court's expert capacity to evaluate the evidence and the impact of error on the jury. [00:22:04] Speaker 02: And so I'm not sure. [00:22:06] Speaker 02: It feels like it needs to be some sort of hybrid. [00:22:09] Speaker 02: De novo. [00:22:11] Speaker 00: I understand and there is. [00:22:14] Speaker 00: There is no case that stands for that it should be de novo review. [00:22:19] Speaker 00: First of all, it's a rare case where the district court engaged in de novo review. [00:22:29] Speaker 00: That's one issue, I think. [00:22:30] Speaker 00: And that's why you rarely see the standard for the third prong of being how you review the district court's decision. [00:22:37] Speaker 00: But Arruche, on which the government tends to solely rely, says, [00:22:42] Speaker 00: something that's almost just the opposite. [00:22:44] Speaker 00: He said, the question we're reviewing is not whether the district court properly exercised its discretion, but whether the court properly found a Brady violation. [00:22:55] Speaker 00: So in Arruche, there was a legal issue first. [00:22:57] Speaker 00: Was there even a Brady violation? [00:23:00] Speaker 00: This case, clearly, there was a constitutional violation by failing to give the instruction. [00:23:07] Speaker 00: So that part of the case was out, whereas Arruche specifically said, [00:23:12] Speaker 00: This distinction makes a Brady ruling different from other new trial rulings. [00:23:17] Speaker 00: Because whether the government has breached its obligations under Brady is a question of law. [00:23:21] Speaker 00: That's at page 596 of a root shake. [00:23:24] Speaker 00: And they had previously said about the gone through what a Brady violation is. [00:23:30] Speaker 00: So they specifically distinguished a case where there's a Brady violation being a plain error from a new trial [00:23:40] Speaker 00: motion where it's reviewed for abuse of discretion. [00:23:45] Speaker 00: Other than that, I don't think there's any authority for reviewing the third prong if in the rare situation where the district court has already decided that for reviewing that de novo. [00:23:57] Speaker 00: It's a factual finding. [00:23:58] Speaker 00: The district court went through the record and as best it could, again, as then Judge Kavanaugh said in a [00:24:06] Speaker 00: It's all somewhat of a speculative exercise. [00:24:10] Speaker 00: But the district court in this case went through the facts at great length, as in the Baptiste case, and reviewed them with respect to how it affected the jury. [00:24:21] Speaker 00: And the Supreme Court has been much more definitive about the instruction [00:24:28] Speaker 00: on a defendant's failure to testify. [00:24:31] Speaker 00: The government relied upon Griffin, but in the Carter versus Kentucky case, in footnote 17, the court adopted the view that more harm may flow from the lack of guidance to the jury on the meaning of the Fifth Amendment privilege than from reasonable comment upon the exercise. [00:24:49] Speaker 00: In other words, they said a Carter, or a Bruno, or whatever you want to call it, [00:24:55] Speaker 00: No adverse inference instruction is worse than the common in Griffin versus California. [00:25:00] Speaker 00: It's more of a violation and more harmful to a defendant. [00:25:04] Speaker 00: So the Supreme Court in Carter took a view. [00:25:09] Speaker 00: And again, that clearly calls for almost speculation, because what they said is the jury will speculate. [00:25:20] Speaker 00: When the jury is left to roam at large with only its untutored instincts to guide it, [00:25:24] Speaker 00: to draw from the defendant's silence broad inferences of guilt. [00:25:29] Speaker 00: And that's what Judge Maeda had to deal with. [00:25:31] Speaker 00: And he very reasonably found that there was a reasonable probability that the jury would have acquitted. [00:25:39] Speaker 00: With respect to the split verdict, that even more so, I think, shows that district court was correct. [00:25:47] Speaker 00: You can view a split verdict one of two ways. [00:25:50] Speaker 00: You can view it that maybe with the jury did go through the evidence in particular. [00:25:58] Speaker 00: But the problem is, and especially when the Supreme Court has talked about the importance of this instruction, you can also view it in a much more direct way that the jury acquitted. [00:26:08] Speaker 00: The evidence was so weak on the first count that the jury acquitted Mr. Adams. [00:26:14] Speaker 00: And yes, it was stronger on the second two counts, but if [00:26:17] Speaker 00: If that instruction had been given, as Judge Mayda found there was a reasonable probability they would have acquitted on that too. [00:26:24] Speaker 00: You can view the lack of unanimity both ways. [00:26:28] Speaker 00: And in this case, Judge Mayda went through the evidence in great specificity to show why that there was a reasonable probability that the jury would have acquitted. [00:26:38] Speaker 00: So. [00:26:40] Speaker 02: What do we do in reviewing plain error, not harmless error? [00:26:46] Speaker 02: with the other instructions that were given to the jury, including [00:26:53] Speaker 02: that Adams did not have to prove his innocence at all or produce any evidence at all. [00:26:59] Speaker 02: I get that it's not, those other instructions are not a sufficient substitute upfront if a defendant asks for the instructions. [00:27:08] Speaker 02: So that's well settled. [00:27:11] Speaker 02: But in analyzing the plain error prong, prejudice prong, [00:27:19] Speaker 02: or maybe even the fourth prong, the integrity of the proceedings. [00:27:23] Speaker 02: Do we look at all at what the other instructions covered? [00:27:27] Speaker 00: Well, the Supreme Court, I mean, I don't want to repeat what your honor just said, but the Supreme Court has been quite clear that instruction on the presumption of innocence on the jury needs to follow the evidence. [00:27:39] Speaker 00: None of that is a substitute for this instruction. [00:27:42] Speaker 02: So there's error. [00:27:43] Speaker 02: There's error not to giving it. [00:27:44] Speaker 02: I'm stipulating that. [00:27:45] Speaker 02: But now, in evaluating the consequences of that, I think the Supreme Court was saying there, no, you got to do it. [00:27:51] Speaker 02: It'll be error not to do it. [00:27:52] Speaker 02: You can't just say, I did these other things. [00:27:54] Speaker 02: But given that we have error here, unfortunately, does that not temper the prejudice? [00:28:01] Speaker 00: No, because what they said was that those instructions don't ameliorate the error in any respect. [00:28:08] Speaker 00: That error is still there. [00:28:09] Speaker 00: It's not been ameliorated at all by the other instructions. [00:28:12] Speaker 00: They could not have been clearer, I think. [00:28:16] Speaker 00: And although the jury was instructed [00:28:19] Speaker 00: It may be doubted that this instruction contributed in a significant way. [00:28:23] Speaker 00: I mean, they're quite clear about that doesn't make up for it. [00:28:26] Speaker 00: So I don't see how, just because it's in plain error, that the error is still just as plain, just as prejudicial, according to the district court. [00:28:38] Speaker 00: And the fact that the other instructions played no role in any kind of lessening of that prejudice. [00:28:44] Speaker 00: So I don't see how the, and by the way, the government could have rendered this whole thing moot by object. [00:28:50] Speaker 00: They had the exact same opportunity to point out to the district court that the instruction had been inadvertently admitted. [00:28:58] Speaker 00: And if they had done that, we wouldn't even be here arguing this. [00:29:01] Speaker 00: It would have either been [00:29:03] Speaker 00: this issue, he would have either been acquitted or convicted. [00:29:07] Speaker 00: But this issue would not be before you if the government had just stood up and told the district court judge that the instruction had been omitted in the various translations of it going back and forth with the parties. [00:29:22] Speaker 00: So the notion that Mr. Adams' lawyer [00:29:28] Speaker 00: played any role in this is just not correct. [00:29:31] Speaker 00: And it was first of all, it was never raised in the district court. [00:29:35] Speaker 00: It was raised in the first time on appeal as the government admits in its brief. [00:29:39] Speaker 00: And second of all, the district court found just the opposite. [00:29:43] Speaker 00: It was inadvertent on all parties. [00:29:46] Speaker 02: The district court had found, I take the district court did not find it here, but if the district court did think it was gamesmanship, but otherwise everything's the same, how would that factor in? [00:29:57] Speaker 02: Would it go into the fourth prong then? [00:29:59] Speaker 00: I think it would go to the fourth prong. [00:30:01] Speaker 00: I don't see how it would go to prejudice, perhaps a different result. [00:30:08] Speaker 00: And by the way, I think a different result is one jury. [00:30:10] Speaker 00: A hung jury is a different result than a convicting jury as an aside or I mean as a direct argument. [00:30:19] Speaker 00: hadn't been mentioned. [00:30:20] Speaker 00: But I think it would go to the integrity fairness. [00:30:24] Speaker 00: It certainly seems to me that it could have impacted the fairness prong if a lawyer purposely doesn't object. [00:30:33] Speaker 00: But by the way, the Supreme Court addressed that scenario in Rosales Morales, 585 US at 144 to 45. [00:30:43] Speaker 00: It said, it is hard to imagine the defense counsel would deliberately forgo objection now [00:30:49] Speaker 00: to a plain error that would subject her client to a higher guidelines range than was guidelines because counsel perceived some slightly expanded chance to argue for plain error. [00:31:01] Speaker 00: I mean, a lawyer is not going to sit there and let this instruction not be given when they've asked for it numerous times on the hope that on appeal that they'll prevail on plain error that the instruction was not a much higher standard. [00:31:16] Speaker 00: Whereas if they, all they had to do was object [00:31:19] Speaker 00: to the district court and it would have been given, just like if the government had pointed out to the district court, the instruction would have been given. [00:31:28] Speaker 00: So I think it would have, if there was game mischief, which was not in this case and it was never raised in the district court and the defense lawyer was not given a chance to respond to any such claim. [00:31:39] Speaker 00: But if it was, I could see that the court, as it did in the Gaines case, that it could be a different circuit. [00:31:46] Speaker 00: And I'm sorry, I don't remember which one. [00:31:48] Speaker 00: but that it could affect the whole fairness, the fourth prong. [00:31:51] Speaker 00: I could see that argument being made. [00:31:54] Speaker 00: I'm not going to argue it. [00:31:57] Speaker 00: I'm sorry. [00:31:57] Speaker 00: I'm not going to argue it. [00:31:58] Speaker 00: But I do think the structural error argument is proper. [00:32:03] Speaker 00: But I think the court can decide it on the much easier ground of affirming that the district court did not abuse this discretion. [00:32:11] Speaker 02: Thank you. [00:32:12] Speaker 00: Thank you. [00:32:12] Speaker 02: Thank you very much, Councilman. [00:32:17] Speaker 02: will give you two minutes. [00:32:19] Speaker 04: Thank you. [00:32:22] Speaker 04: Thank you. [00:32:22] Speaker 04: I suggest to be brief and respond to a few points that Mr Kramer made. [00:32:27] Speaker 04: First, the standard is not a reasonable probability that one juror would have hung the jury. [00:32:32] Speaker 04: There is standard from Greer v United States. [00:32:34] Speaker 04: The Supreme Court case is a reasonable probability that the jury would have acquitted the defendant on plane air review. [00:32:40] Speaker 04: That's the standard with respect to deference to the to the to the district court here. [00:32:47] Speaker 04: Mr. Kramer pointed out this was a two-week trial. [00:32:49] Speaker 04: I'm not sure that was correct. [00:32:51] Speaker 04: It was essentially three or four days of testimony, most of it documentary. [00:32:55] Speaker 04: This is not a lengthy case. [00:32:57] Speaker 01: In fact, he was referring to the case he was quoting. [00:33:00] Speaker 04: I'm sorry. [00:33:00] Speaker 01: I think the two weeks was referring to another case, the one he was quoting, not this case. [00:33:05] Speaker 04: Oh, I'm sorry if I was confused, but certainly this case was not two weeks. [00:33:08] Speaker 04: It was several days of testimony. [00:33:12] Speaker 04: with respect to abuse of discretion versus de novo review of plain error and how that cashes out. [00:33:18] Speaker 04: Now, Ruchi is clear that it may not make so much of a difference because a district court abuses its discretion by definition when it makes an error of law. [00:33:28] Speaker 04: Here, the district court made an error of law by misapplying in multiple ways the prejudice prong of plain error. [00:33:37] Speaker 04: And so in this case, whether it's cashes out as [00:33:41] Speaker 02: was quite explicit that was applying the reasonable probability standard. [00:33:44] Speaker 04: It did, but as we've noted, that does not insulate its actual reasoning and some multiple legal errors it made, such as holding the government, or holding, I guess, the government to a higher burden because the error was constitutional in nature. [00:33:59] Speaker 04: That's a hallmark of harmless error review, not a plain error. [00:34:02] Speaker 04: Plain error review, ordinary plain error review for constitutional errors. [00:34:06] Speaker 02: You're saying the district court can't factor in the constitutional magnitude of the error at all in its plain error analysis? [00:34:11] Speaker 04: That would go to prong for your honor that at that point, but even at even a prompt for a serious constitutional error doesn't axiomatically suggest that no one thinks the district court did anything axiomatically here was really a all the relevant circumstances analysis. [00:34:26] Speaker 04: Right. [00:34:27] Speaker 02: So I know your time's almost up. [00:34:28] Speaker 02: I didn't know if you had any quick thoughts on the structural error point. [00:34:31] Speaker 02: Are you resting on the brief as a dependent? [00:34:34] Speaker 04: My understanding from Mr Kramer was he was not arguing that further, so I did not intend to. [00:34:39] Speaker 04: Okay, so we would ask this court to reverse the new trial grant. [00:34:42] Speaker 04: Thank you, Your Honors. [00:34:43] Speaker 02: Thank you so much, Counsel. [00:34:44] Speaker 02: The case is submitted.