[00:00:00] Speaker 03:
With that, we have four cases that have been submitted today.

[00:00:04] Speaker 03:
Zepeda Paz versus Garland, 23-2035.

[00:00:07] Speaker 03:
Rojas Hernandez versus Garland, 23-3473.

[00:00:13] Speaker 03:
Geronimo Geronimo v. Garland, 23-3573.

[00:00:54] Speaker ?:
survived a motion of dismiss, survived summary judgment, and were tried to a jury of his peers.

[00:01:00] Speaker ?:
This appeal concerns three legal errors that individually and collectively prevented Mr. Denison from fairly presenting his case.

[00:01:08] Speaker ?:
I'll start with the first error we identified in our brief, the decision to exclude Mr. Denison's statements to his father immediately following the assault.

[00:01:15] Speaker ?:
Those statements are not hearsay and should have been admitted under Federal Rule of Evidence 801-D1-B.

[00:01:26] Speaker ?:
a statement of a satisfying order to come in under Rule 801D1B.

[00:01:30] Speaker ?:
Two of them are not contested in this action.

[00:01:32] Speaker ?:
Mr. Dennison testified on his own behalf, and opposing counsel raised two express charges that he fabricated that testimony.

[00:01:40] Speaker ?:
That leaves the two remaining elements, whether the statements Mr. Dennison made out of court were consistent with his in-court statements,

[00:02:05] Speaker ?:
case that it's enough, even if you're not pro se, which of course my plan was, to invoke the same basic, to invoke the basic point, even if you use the wrong rule numbers, you know, is persuasive here.

[00:02:17] Speaker 03:
Well, I understand your argument is that he explained enough to give an offer of proof, but under our case Hyatt, that panel decided

[00:02:35] Speaker 03:
be admitted.

[00:02:36] Speaker 03:
And here we don't have Mr. Denison having provided that explanation to the court.

[00:02:42] Speaker ?:
So why isn't it plain error under our controlling case?

[00:02:46] Speaker ?:
Well, I think he did provide the explanation to the court.

[00:02:48] Speaker ?:
You know, he said, first he said what the evidence was, and I agree that that was an offer of proof.

[00:02:52] Speaker ?:
And then he said, this is not hearsay.

[00:02:54] Speaker ?:
It's not hearsay.

[00:02:55] Speaker ?:
It's the President's sense of oppression.

[00:02:56] Speaker ?:
This is some excited utterance.

[00:02:58] Speaker ?:
And under the residual exception of 807.

[00:03:07] Speaker ?:
to when a statement was said and to whom it was said, rather than the related exception that I think does apply here.

[00:03:14] Speaker ?:
But I think, you know, this court has never held the need to get your hearsay arguments exactly right in order to preserve them.

[00:03:19] Speaker ?:
I think what's enough is that he said it wasn't hearsay.

[00:03:21] Speaker ?:
He explained, you know, in some detail why it wasn't hearsay, that it was a call he made to his father immediately following the assault.

[00:03:28] Speaker ?:
And I think that was enough to put the district court on notice, and the court should have

[00:03:35] Speaker 03:
Let me ask you this, counsel.

[00:03:37] Speaker 03:
Is there a transcript of what was said between he and his father on this recorded phone call?

[00:03:43] Speaker ?:
There is a transcript.

[00:03:44] Speaker ?:
It was used as an impeachment exhibit by opposing counsel when Mr. Dennison testified on his behalf.

[00:03:49] Speaker 03:
Was the district court privy to that transcript?

[00:03:52] Speaker 03:
Was the district court aware of what was stated between Mr. Dennison and his father?

[00:03:59] Speaker ?:
So I don't know for sure.

[00:04:01] Speaker ?:
I think so.

[00:04:35] Speaker 03:
There's not really much there, so why wasn't that made a part of the appellate record?

[00:04:43] Speaker ?:
You know, I think that what we were relying on is the fact that he said, you know, I was assaulted and I called my father and I told him about it.

[00:04:50] Speaker ?:
I think because he said that in open court, we think that's what's relevant in terms of whether he preserved the evidentiary objection and got it in.

[00:04:57] Speaker ?:
You know, I agree, Your Honor, that the transcript is part of the appellate record.

[00:05:08] Speaker 01:
We have the transcript available to us.

[00:05:11] Speaker 01:
No, we did not put it in our joint appendix because it was not entered into evidence in the district court, and so we thought it was better to rely on the statements that were made in open court.

[00:05:21] Speaker ?:
And I think those statements are sufficient because he said, I was sexually assaulted, I called my father, I told him all about it.

[00:05:27] Speaker 00:
But it might be useful.

[00:05:29] Speaker 00:
Suppose we get past

[00:05:37] Speaker 00:
At this point, all we know is that he said, I told my father, and we can infer, I guess, that what he told his father would have been consistent with what he testified himself, but we don't really know that.

[00:05:55] Speaker 00:
But let's get to the substance of that.

[00:05:57] Speaker 00:
Why is it we should believe that having that admitted

[00:06:06] Speaker 00:
as a prior consistent statement, what in the end made a difference?

[00:06:11] Speaker ?:
I think this is a he-said-he-said case where the only corroborating evidence available to my client was this call.

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You know, this court explained in the Morales case that the exclusion of the only evidence supporting the claim is presumptively prejudicial.

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And, you know, supposing that Mr. Denison preserved his error, I don't think Sergeant Masterson can carry his burden to show that an error here was harmless.

[00:06:34] Speaker ?:
I mean, this was really a case about who the jury

[00:06:43] Speaker ?:
bolstered his credibility in the eyes of the jury.

[00:06:48] Speaker 03:
You had two witnesses for the defense, Mr. Steber and Mr. Masterson, both say unequivocally that there was no assault of any kind.

[00:06:57] Speaker 03:
So to Judge Clifton's point, if there were any error, why would it not be harmless?

[00:07:06] Speaker ?:
I agree that this is a case where it was hard for my client to get evidence in that supported him because

[00:07:15] Speaker ?:
were correctional officers.

[00:07:17] Speaker ?:
I think the jury very likely could have been swayed by evidence that my client, you know, this court has held that statements made to relatives are trustworthy, that statements that come in close in time are trustworthy.

[00:07:29] Speaker ?:
I think if the jury had heard my client say on the call, you know, dad, something really bad happened to me, that would have made the jury more likely to believe that he was telling the truth when he testified.

[00:07:39] Speaker ?:
And of course, if the jury had believed he was telling the truth when he testified,

[00:07:45] Speaker ?:
search claim or his eighth amendment sexual assault claim.

[00:07:51] Speaker ?:
You wanted to speak a little bit about the subpoena as well, is that right?

[00:07:54] Speaker ?:
Of course, yes.

[00:07:55] Speaker ?:
In some ways I think this is the easiest issue before the court because I don't think that the legal merits are in dispute here.

[00:08:01] Speaker ?:
You know, it's black litter law.

[00:08:03] Speaker ?:
It's the consensus among federal courts that a party to the action has no standard

[00:08:27] Speaker ?:
any arguments that he held for why it should have been quashed.

[00:08:31] Speaker 03:
And I think the district court, you know, legally erred in therefore granting Masterson's motion to quash the subpoena.

[00:08:58] Speaker ?:
subject to the subpoena not to protect a litigant of the action.

[00:09:02] Speaker 03:
And I'm not aware of any court that's come out the other way on this question, unless of course the defendant holds some sort of personal right, like an attorney-client privilege argument, that's not an issue here.

[00:09:13] Speaker 03:
Well, set aside the standing argument for a moment.

[00:09:18] Speaker 03:
I was wondering

[00:09:24] Speaker 03:
the district court seemed to have an expectation that the defense counsel would file a sworn affidavit from Mr. Mangan attesting to what his testimony would be and other facts, and that never happened.

[00:09:39] Speaker 03:
So even apart from the standing question, what did the district court rely on in the

[00:09:53] Speaker ?:
based on a filing made by Masterson that reported that opposing counsel had spoken to Mangan, that he said he no longer lived in the state.

[00:10:01] Speaker ?:
You know, there's nothing sworn.

[00:10:02] Speaker ?:
There's no declaration by anyone.

[00:10:04] Speaker ?:
There's no affidavit.

[00:10:06] Speaker ?:
There's actually nothing in the record about whether he still transacts business in Arizona, which is in Rule 45D, you know, which if he did so would allow him to have been subpoenaed under Rule 45D.

[00:10:16] Speaker ?:
So I agree that there wasn't enough here, and I think that's related to the

[00:10:29] Speaker 00:
raise it himself, and he should support it with actual evidence.

[00:10:33] Speaker 00:
And that's not what happens here.

[00:10:35] Speaker 00:
Well, I view this more as perhaps from the judge's perspective, a case management problem.

[00:10:42] Speaker 00:
Do we have any reason to think that this opinion could have successfully been served or that the witness in Magnum would have shown up?

[00:10:50] Speaker 00:
I mean, if in fact it was being discussed that he'd have moved to New York and

[00:11:07] Speaker 00:
What's going to come of all this?

[00:11:10] Speaker ?:
Yeah, so let me take both parts of that question in turn.

[00:11:12] Speaker ?:
I think the Spina could have successfully been served.

[00:11:14] Speaker ?:
My client had a motion pending with the court to get the new address from Mr. Mangan, and I think, you know, that could have been granted.

[00:11:20] Speaker ?:
He could have gotten the address.

[00:11:21] Speaker ?:
Mr. Mangan could have been served.

[00:11:23] Speaker 00:
Now, might Mr. Mangan have moved his watch to Spina?

[00:11:25] Speaker 00:
But what have you been required to appear?

[00:11:27] Speaker 00:
I mean, he's living in New York.

[00:11:28] Speaker 00:
He gets served.

[00:11:29] Speaker 00:
I suspect it's going to get tossed away.

[00:11:32] Speaker 00:
What makes you think he's prepared to come back to Arizona?

[00:11:36] Speaker 00:
Was your client prepared to pay for his transport back to Arizona?

[00:11:40] Speaker 00:
I mean, that's a practical problem the judge is appropriately considering.

[00:11:44] Speaker 00:
So I think we don't know enough about whether Officer Mangy was in fact within the court's subpoena power.

[00:11:49] Speaker ?:
You know, the record, such as it is, is that he very recently moved from Arizona to New York.

[00:11:54] Speaker ?:
We don't know whether he was still transacting.

[00:12:01] Speaker ?:
he may well have still been transacting business, and thus within the courts of penal power.

[00:12:04] Speaker 01:
And if he had been within the courts of penal power, excuse me, I assume he would have shown up and testified in court.

[00:12:10] Speaker 00:
So I think, you know, the sparse record to... Your big assumptions and your clients got to persuade us that, in fact, it would have made a difference.

[00:12:19] Speaker 00:
Why should we believe that?

[00:12:22] Speaker 01:
Well, I actually think the harmlessness burden is on the other side.

[00:12:25] Speaker 01:
You know, I think there was a legal error here

[00:12:31] Speaker 00:
matter at some point, if it's more likely than not, whose burden it is really doesn't matter at this point.

[00:12:37] Speaker 00:
Do we have anything that gives us reason to think that that he actually would have shown up and testified in a way that would have been favorable to your client, especially since his testimony was kind of on a collateral issue?

[00:12:49] Speaker 00:
I mean, apparently he was going to testify that

[00:12:58] Speaker 00:
a list of people to get new photographs.

[00:13:00] Speaker 00:
And other correctional officers, you know, they follow orders.

[00:13:04] Speaker 00:
That's what prisons like the military are about.

[00:13:07] Speaker 00:
You follow orders, you don't question orders.

[00:13:09] Speaker 00:
So why do we think it would have made a difference?

[00:13:12] Speaker ?:
Yeah, so I think on whether he would have showed up, there's just not enough in the record for this court to have confidence that he was assuredly outside the courts of peanut power, and therefore the error wasn't brought us on background.

[00:13:20] Speaker ?:
I think as to what he would have said, I think my client's motivation for refusing to be photographed is central to whether Masterson

[00:13:28] Speaker ?:
had a basis to order him strip searched.

[00:13:31] Speaker ?:
If my client in fact was protesting, you know, maybe unwisely, but based on a real belief that he had already been photographed, I think that seriously undercuts the contraband rationale that was Masterson's sole basis for ordering the strip search.

[00:13:44] Speaker ?:
And of course if the strip search was improperly motivated, that's a Fourth Amendment problem and the jury could have found for my client on that point.

[00:13:50] Speaker 02:
Counsel, Judge Gould, I have a question for you.

[00:13:55] Speaker 02:
was Mangan, he was not present, as I understand it, at the time of the alleged assault.

[00:14:04] Speaker ?:
That's correct.

[00:14:06] Speaker ?:
He was present when the conversation about whether or not my client had to be photographed took place, but he was not present for the search and alleged assault.

[00:14:14] Speaker ?:
So if he wasn't present when that occurred, how important could his testimony have been to a jury?

[00:14:24] Speaker ?:
You know, I think if Mangan had testified, as my client consistently alleged, I said at the time, Mangan could have said, that Mr. Dennison was right.

[00:14:32] Speaker ?:
He didn't need to be photographed.

[00:14:33] Speaker ?:
I think that would have significantly helped Mr. Dennison press his case.

[00:14:36] Speaker ?:
It would have made it much easier to show that the search was pretextual.

[00:14:39] Speaker ?:
It would have bolstered my client's credibility in the eyes of the jury that, again, really didn't have very much to corroborate any aspect of his case.

[00:14:47] Speaker ?:
You know, this is the only correctional officer who my client alleged agreed

[00:14:51] Speaker 03:
anything that took place in any part of this case, and I think depriving the jury of that testimony had a serious impact on my client's credibility.

[00:14:59] Speaker 03:
Thank you, counsel.

[00:15:02] Speaker 03:
Counsel, you have about 38 seconds left in your argument, but we can give you a couple minutes on rebuttal if you'd like.

[00:15:20] Speaker 04:
I'd like to start out with the subpoena issue, since that's where we ended with the appellant.

[00:15:29] Speaker 04:
There's no good faith dispute that Mr. Mangan was living in New York at the time of this trial.

[00:15:34] Speaker 04:
It's contained in our pleadings, which we filed under Rule 11 with our signature.

[00:15:39] Speaker 04:
It's also reflected in the process service receipt that's at 2ER 44, when the U.S.

[00:15:45] Speaker 04:
Marshals tried to serve him in Arizona.

[00:15:48] Speaker 04:
The Marshal made a note, no longer resides at this address.

[00:15:52] Speaker 04:
According to owner, stated, moved to New York.

[00:15:56] Speaker 03:
But Counsel, that at most establishes that his earlier Arizona address was no longer there.

[00:16:04] Speaker 03:
There are other exceptions to the geographical limitation if he transacts business regularly in Arizona.

[00:16:10] Speaker 03:
Even if he lives in New York, there are other bases in which the subpoena might be

[00:16:17] Speaker 03:
is the district court was just taking defense counsel's representations as to Mr. Mangan's location, even though there had been this assumption by the court that something was going to be filed, a sworn affidavit by Mr. Mangan.

[00:16:34] Speaker 03:
So how did the court rely on anything of the

[00:16:52] Speaker 04:
speak to whether the judge did or not.

[00:16:56] Speaker 04:
Second, I think it's a leap of logic to assume that a correctional officer who moved across the country – this is a CO2 and entry-level individual – was regularly conducting business in person in Arizona.

[00:17:10] Speaker 04:
There's no reason to believe that.

[00:17:12] Speaker 04:
But I also want to highlight that

[00:17:16] Speaker 04:
Even if plaintiff had been able to serve Mr. Mangan or even if Mr. Mangan had agreed to testify, his testimony would have had no bearing on whether this strip search was unconstitutional.

[00:17:29] Speaker 04:
This court knows that the Eighth Amendment requires that a strip search be reasonable.

[00:17:51] Speaker 04:
And the reasonableness of the search needs to be reviewed from Sergeant Masterson's perspective, its objective perspective, and the facts and circumstances before him.

[00:18:02] Speaker 04:
He didn't talk to Officer Mangan.

[00:18:03] Speaker 04:
Officer Mangan wasn't there.

[00:18:05] Speaker 03:
And would you make of counsel's argument that it would have supported the theory that the strip search may have been pretextual?

[00:18:11] Speaker 04:
It would not have, because what the

[00:18:22] Speaker 04:
I ordered my subordinate, Officer Crebel, to take the photos.

[00:18:27] Speaker 04:
Officer Crebel was also there with Sergeant Masterson and said, I tried to take a simple body photograph and the inmate wouldn't follow my lawful order.

[00:18:36] Speaker 04:
And so Sergeant Masterson saw that and also saw, with that as the backdrop, an inmate clenching and unclenching

[00:18:50] Speaker 04:
reasonable belief that this inmate may have been hiding contraband.

[00:18:53] Speaker 03:
And I take it you would argue, regardless of whether he was due for a photograph or not, that independent evidence would have been enough to form a reasonable suspicion to perform the strip search?

[00:19:05] Speaker 04:
Exactly.

[00:19:06] Speaker 04:
Regardless of whether he was due or not, the fact that officers were telling him, yes, you are due, I need to take your photo, and he was not, coupled with the body language, was more than enough to justify the strip search.

[00:19:35] Speaker 04:
And this was not a harmless technicality, but had he done so, then perhaps the district court could have somehow ordered the subpoena be issued in New York, although I don't think it would have had any effect.

[00:19:52] Speaker 04:
But then Mr. Mangan could have

[00:20:04] Speaker 04:
if the standing issue had been raised below, and it was not.

[00:20:08] Speaker 03:
You know, Mr. Dennison is a premium pro se, and he does object on the basis of it's premature.

[00:20:14] Speaker 03:
He uses that phrasing, if I remember correctly.

[00:20:20] Speaker 03:
Shouldn't we be a little bit more expansive in order to say that this was a preserved challenge?

[00:20:27] Speaker 04:
I have a couple of responses to that.

[00:20:39] Speaker 04:
who were able to come up with present-sense impression and excited utterance.

[00:20:44] Speaker 04:
Second, the court did give Mr. Denison great latitude when it came to this witness issue.

[00:20:49] Speaker 04:
The record also shows that it continued trial once to allow Mr. Denison to identify and to subpoena witnesses.

[00:20:57] Speaker 04:
But my third point, and perhaps most importantly, is even if, because of his pro se status, Mr. Denison wasn't required to use the exact right terminology to say

[00:21:11] Speaker 04:
He still needed to give the district court the basis to understand his argument.

[00:21:18] Speaker 04:
And as to the subpoena, he didn't give the district court a basis to analyze or understand, oh, he's arguing that Sergeant Masterson doesn't have standing, and therefore there wasn't the chance for that to play out below.

[00:21:39] Speaker 04:
for the record that no part of that phone call was played for the jury.

[00:21:43] Speaker 04:
No part of the transcript was read to the jury.

[00:21:47] Speaker 04:
The phone call was not entered into evidence.

[00:21:49] Speaker 04:
We only used the first page of the transcript to refresh Mr. Denison's recollection, that at the time this happened, when he made an outgoing phone call, there was a recording notifying him he could call the Priaha line.

[00:22:03] Speaker 04:
It was marked as an impeachment exhibit, but it was not actually used for impeachment.

[00:22:08] Speaker 04:
And the record shows that at 5ER-722.

[00:22:13] Speaker 04:
And I bring that up just because I want to make clear that our use of that small portion of the transcript for that purpose did not open the door to the hearsay that Mr. Dennison says should have been allowed in.

[00:22:28] Speaker 04:
There are two reasons that this does not qualify as a prior consistent statement.

[00:22:33] Speaker 04:
And I think the court hit the nail on the head that first the record does not reflect that it was consistent.

[00:22:40] Speaker 04:
All that Mr. Dennison offered the district court, all that he has offered this court is I told my dad I was sexually assaulted and I was sexually assaulted and I called my father and told him about it.

[00:22:54] Speaker 04:
That's all we have.

[00:22:57] Speaker 04:
his father, Sergeant Masterson, sexually assaulted me, that he said how it happened, where it happened, the circumstances, what led up to it.

[00:23:08] Speaker 04:
And without that, there's simply no basis for the court to conclude that it's consistent.

[00:23:14] Speaker 00:
And the fourth prong for that, I mean, if he's offering it up, it doesn't serve any purpose, doesn't help or hurt

[00:23:26] Speaker 00:
doesn't help his case if it's not consistent why is it we should think there's a real chance that he would have told a different story to his father that he was telling a trial if that were the case that if he actually got it in it might be devastating to his case so the fact that he offers it up

[00:23:59] Speaker 00:
it is that we should doubt that it was going to be consistent.

[00:24:03] Speaker 04:
I think that without it in the record the court is being forced to speculate that it would have been consistent and to speculate about Mr. Denison's reasons and logic for admitting it into evidence.

[00:24:16] Speaker 04:
But additionally the court does not have to speculate as to the next point that it was not made before the motive to fabricate a rose and that's the final

[00:24:35] Speaker 04:
from a private prison to the Cook unit where this occurred in June of 2016, about six months later.

[00:24:42] Speaker 04:
And shortly after this, when he made this complaint against Sergeant Masterson, a criminal investigator met with him and he told that criminal investigator, I want to go back to the private prison.

[00:24:53] Speaker 04:
The investigator testified to that.

[00:24:55] Speaker 04:
That was in the investigator's report that was before the jury.

[00:24:59] Speaker 04:
That is what we alleged was the motive to fabricate a desire to be moved off this unit

[00:25:05] Speaker 04:
and that he did so by making allegations against an officer.

[00:25:09] Speaker 04:
But the phone call happened before he even filed a grievance.

[00:25:13] Speaker 04:
It did, but if you look at the motive, this specific motive to fabricate, that would have arisen if not as soon as he had to leave the private prison and go to Cook Unit.

[00:25:24] Speaker 04:
It would have arisen at the time of this incident where he was forced to take photographs that he didn't think he needed to and he got a disciplinary ticket from it.

[00:25:36] Speaker 04:
I do believe that a plain error standard applies here, and the plaintiff certainly cannot meet it, even with these questions that the court has raised.

[00:25:43] Speaker 04:
First, there was no offer of proof or anything like it, and we cite case law in our brief saying that the absence of the offer of proof leads to that standard.

[00:25:53] Speaker 04:
But also, Mr. Dennison did not raise this prior consistent statement argument below.

[00:25:59] Speaker 04:
He raised those two hearsay exceptions, and that's important.

[00:26:03] Speaker 04:
The plaintiff wants to just excuse this as a technicality.

[00:26:08] Speaker 04:
But Mr. Dennison still needed to give the court, even if he didn't use the right hearsay numbers and subsections, he still needed to give the court a basis to understand his argument.

[00:26:21] Speaker 04:
And by raising excited utterance, presence, and suppression, the court is analyzing, OK, is this phone call made at the time of the incident or while he's

[00:26:35] Speaker 04:
the timing by not saying your honor I'm offering this because it is consistent with what I am telling the jury now the judge only looked at those kind of timing issues had mr. Dennison

[00:27:02] Speaker 03:
about it, isn't that letting the court know the substance of what that conversation was in order to make it clear that this was about a prior consistent statement exception?

[00:27:14] Speaker 04:
I think it's just as likely for the court to conclude that he was trying to introduce the statement to show his emotional distress.

[00:27:21] Speaker 04:
If he says that it was an excited utterance, to introduce it to say, Dad, something happened.

[00:27:26] Speaker 04:
I'm so upset.

[00:27:27] Speaker 04:
I'm so scared.

[00:27:29] Speaker 04:
But the court's not required to make that speculation.

[00:27:32] Speaker 04:
And because Mr. Dennison didn't raise that prior consistent statement, there's no analysis from the court on the consistency.

[00:27:42] Speaker 04:
As to the questions that came up, the court would have had a copy of the transcript from when we pulled it out of that impeachment envelope and used it to refresh Mr. Dennison's recollection.

[00:27:52] Speaker 04:
But again, at that time, we only looked at that first page.

[00:27:56] Speaker 04:
And there's nothing in their record.

[00:27:57] Speaker 04:
There's no reason to think that the court looked

[00:28:06] Speaker 04:
After Dennison raised a different argument, the court very easily could have done that and could have ruled whether this was consistent or not.

[00:28:14] Speaker 04:
But that's my argument for plain error.

[00:28:16] Speaker 04:
Even if it's not plain error, it's abuse of discretion.

[00:28:19] Speaker 04:
And when an individual is trying to introduce a prior statement, a self-serving statement, there's no abuse of discretion here.

[00:28:28] Speaker 04:
I have just a little bit of time left, and so I want to end briefly by talking about the third issue that Plaintiff raised with the sleeping juror

[00:28:36] Speaker 04:
Trial courts have broad discretion when dealing with sleeping jurors.

[00:28:42] Speaker 04:
And here we have a judge who saw a juror nodding off three times, flat out sleeping twice, all on the very first afternoon of trial.

[00:28:53] Speaker 04:
He did not abuse his discretion in declining to conduct further inquiry or the evidentiary hearing that plaintiff now requests.

[00:29:07] Speaker 04:
It specifically uses the language in these particular circumstances in referring to the Barrett trial.

[00:29:15] Speaker 04:
And that case was very different.

[00:29:17] Speaker 04:
There, the juror admitted to sleeping.

[00:29:19] Speaker 04:
He said, Your Honor, I was sleeping.

[00:29:21] Speaker 04:
And the judge said, No, you weren't.

[00:29:23] Speaker 04:
I was watching the jurors.

[00:29:24] Speaker 04:
No one was sleeping.

[00:29:26] Speaker 04:
In that case,

[00:29:37] Speaker 04:
the judge making the decision.

[00:29:39] Speaker 04:
Here the judge already saw what he saw multiple times.

[00:29:44] Speaker 04:
At most say the judge had conducted a hearing and other members of the panel said I didn't see juror four sleeping.

[00:29:52] Speaker 04:
That just means they weren't watching

[00:30:08] Speaker 03:
that way, in order to trigger the need for an evidentiary hearing.

[00:30:13] Speaker 04:
I think it's more the difference of the judge actually affirmatively seeing the sleeping and saying that on the record and using his discretion based on his own observations versus in Barrett when the judge just disregarded the statements and continued on with the trial.

[00:30:32] Speaker 04:
That is the end of my time.

[00:30:34] Speaker 03:
Thank you.

[00:30:34] Speaker 03:
Thank you very much.

[00:30:36] Speaker 03:
Thank you, counsel.

[00:30:37] Speaker 03:
So we'll put two minutes on the clock.

[00:30:53] Speaker ?:
because Mangan has not been served with the subpoena, that previewed exactly the order in which these things should have happened.

[00:30:59] Speaker ?:
Mr. Mangan should have been served.

[00:31:00] Speaker ?:
He could have moved to Quash on whatever basis available to him, and that could then have been decided.

[00:31:04] Speaker ?:
I think this is a, you know, it's true he didn't use the word standing, he used related words, but I think even if he were counseled, which of course he was not, he preserved that issue.

[00:31:13] Speaker ?:
On the phone call, I think what Mr.

[00:31:22] Speaker ?:
and I told him about it, both demonstrates that the call was consistent with his testimony, at least according to what he said in court, and should have put the district court on notice.

[00:31:34] Speaker ?:
This was a prior consistent statement case.

[00:31:35] Speaker ?:
What he essentially was saying was, I have a prior statement that is consistent with my testimony today.

[00:31:40] Speaker ?:
This is a very able and experienced district judge who I think was on notice of the issue and should have considered it.

[00:31:46] Speaker ?:
I think what unites both

[00:32:09] Speaker ?:
that he called his dad evidence to be corroborating evidence, first claims of assault.

[00:32:13] Speaker ?:
Both of these pieces of evidence were erroneously prevented from reaching the jury.

[00:32:18] Speaker 01:
And I think if this court agrees with us on either legal question, one of which, again, I take it not really to be in dispute in this court, then my client was prejudiced by that erroneous evidentiary decision.

[00:32:30] Speaker 01:
I will therefore ask that the court reverse the judgment below.

[00:32:33] Speaker 01:
Thank you very much.

[00:32:35] Speaker 03:
Thank you, counsel, for the very helpful arguments.

[00:32:37] Speaker 03:
And this matter will stand