[00:00:02] Speaker 00:
Thank you, Your Honor.

[00:00:04] Speaker 00:
Good morning, Blake Eaton, Federal Defenders.

[00:00:06] Speaker 00:
On behalf of Mr. Akbar, I'll try to reserve two minutes for rebuttal.

[00:00:11] Speaker 00:
This court held in commido that when the government merely asserts its inability to subpoena an important witness, there is, quote, nothing at all to put on the government's side of the scale.

[00:00:28] Speaker 00:
Because here, as in Camito, the government merely asserted its inability to subpoena Ms.

[00:00:34] Speaker 00:
Gallegos.

[00:00:34] Speaker 00:
Camito controls, and this court must reverse.

[00:00:38] Speaker 00:
I'm not going to spend much time talking about the importance of Ms.

[00:00:42] Speaker 00:
Gallegos as a witness in this case.

[00:00:44] Speaker 00:
I don't think there's any real dispute that she was essential to the revocation proceedings against Mr. Gallegos.

[00:00:52] Speaker 00:
So I'm going to focus on the government's good cause arguments, starting with

[00:00:57] Speaker 00:
this question of the efforts made to subpoena Ms.

[00:01:00] Speaker 00:
Gallegos.

[00:01:03] Speaker 00:
Camito stands for a clear proposition that when a witness is this important, when there's one eyewitness in a case, the government has to make some effort to procure that witness for court and has to explain those efforts to the court.

[00:01:19] Speaker 00:
Otherwise, there's no real ability to engage in the Camito balancing.

[00:01:24] Speaker 00:
In Comito, the government, the prosecutor said that probation tried to subpoena the witness.

[00:01:31] Speaker 00:
They were unsuccessful.

[00:01:33] Speaker 00:
But the probation officer did not testify about those efforts.

[00:01:36] Speaker 00:
The prosecutor did not, in the proffer, explain what efforts were made.

[00:01:41] Speaker 00:
That's the same problem that we have here.

[00:01:44] Speaker 00:
We have the Assistant United States Attorney saying that a state detective had tried and failed to subpoena Ms.

[00:01:51] Speaker 00:
Gallegos, but when asked about

[00:01:54] Speaker 00:
what those efforts were on page 16 of the record.

[00:01:57] Speaker 00:
The prosecutor clarified, I don't remember, I don't know how many times or how they tried to subpoena this witness.

[00:02:06] Speaker 01:
Do we have any case law that does sort of a thorough analysis of the indicia of reliability of the hearsay and stops there and just doesn't worry about the government's efforts to bring the witness?

[00:02:21] Speaker 00:
No, Your Honor, in every case and

[00:02:24] Speaker 00:
Certainly every published case, the government looks to both reliability and the efforts, or it's often called the good cause, but the efforts that are actually made.

[00:02:36] Speaker 00:
So even in Hall, the court goes through an extensive list of indicia of reliability, corroborating witnesses, physical evidence corroborating the statement, and then still says, it says, quote, and defendants otherwise strong interest in confrontation

[00:02:52] Speaker 00:
is somewhat lessened by the reliability of the hearsay evidence, but it is not defeated.

[00:02:57] Speaker 00:
And then it moves on to actual testimony that was given by a probation officer in that case to explain how the government showed its good cause.

[00:03:06] Speaker 04:
How much time elapsed between the state's failed efforts to serve as subpoena owner and the federal hearing?

[00:03:18] Speaker 00:
The AUSA on the case indicated that

[00:03:22] Speaker 00:
He spoke with the detective once about these efforts to subpoena.

[00:03:27] Speaker 00:
And this all happened before they discussed obtaining body camera footage.

[00:03:31] Speaker 00:
The body cam, I believe, was obtained sometime in January.

[00:03:35] Speaker 00:
And so there were still several months between the end of the detective's efforts or any federal government knowledge of those efforts and the hearing itself.

[00:03:48] Speaker 04:
So you said several months between the federal knowledge of it and the hearing.

[00:03:53] Speaker 04:
My question was, how many months between the state's failed efforts to find her and the federal hearing?

[00:04:02] Speaker 00:
It was at least a month.

[00:04:04] Speaker 04:
Several months.

[00:04:04] Speaker 00:
Yes.

[00:04:06] Speaker 00:
All right.

[00:04:06] Speaker 00:
And that's another reason.

[00:04:07] Speaker 00:
So in Comito, it was at least the federal probation officer who had tried and failed to subpoena the witness.

[00:04:13] Speaker 00:
That was not enough in Comito.

[00:04:15] Speaker 00:
Here we have this added layer of attenuation where

[00:04:18] Speaker 00:
The federal government is relying on this state detective and there's this extra amount of time that the federal government could have been looking for or just in some way contacting.

[00:04:29] Speaker 01:
And what's the level of detail that the federal prosecutor learned about the state efforts to secure the witness?

[00:04:37] Speaker 00:
The prosecutor said that he couldn't remember on page 16 when the judge asked what efforts were made, what did they report to you?

[00:04:47] Speaker 00:
The quote is, I don't remember.

[00:04:49] Speaker 00:
I know they were also looking for her for the DA's office as well.

[00:04:52] Speaker 00:
And I don't remember how many times they looked for her.

[00:04:55] Speaker 03:
But then we also have that the defense team spoke with Ms.

[00:05:00] Speaker 03:
Gallego and then attempted to procure her presence at trial and attempted to service Pina, and they weren't able to do so.

[00:05:06] Speaker 03:
So there was the state had attempted to do so, the Defender's Office had attempted to do so.

[00:05:13] Speaker 03:
But your point is the government itself didn't do anything.

[00:05:17] Speaker 00:
Yes, and the defense efforts also don't excuse the government in this case.

[00:05:23] Speaker 00:
In Comito as well, the defense attorney had spoken with the witness mere minutes before court, confirmed that the witness did not want to testify.

[00:05:32] Speaker 00:
That's also what we have here.

[00:05:34] Speaker 00:
And just because the witness is unwilling to voluntarily come to court,

[00:05:38] Speaker 00:
doesn't mean that the government can assume that its efforts to subpoena would be fruitless.

[00:05:44] Speaker 03:
So this due process concern is flexible balancing and here there were the district court concluded they were in dish of reliability because the interview had been recorded on the body cam and because Ms.

[00:05:59] Speaker 03:
Gallego appeared

[00:06:00] Speaker 03:
that agitated during the interview.

[00:06:03] Speaker 03:
So these are excited utterances.

[00:06:06] Speaker 03:
And also because the defense team was able to contact Ms.

[00:06:08] Speaker 03:
Gallego and interview her and was successful from that interview in reducing the charges and having some of the charges dismissed.

[00:06:15] Speaker 03:
So why isn't that enough in the balancing?

[00:06:19] Speaker 00:
So there are a couple of points there that I want to address in turn, starting with kind of the

[00:06:25] Speaker 00:
substitutes for confrontation, so that the presence of the body cam video, the defense's ability to interview Ms.

[00:06:31] Speaker 00:
Gallegos, the ability to interview Pryor was also present in Comito.

[00:06:36] Speaker 04:
And receiving federal court benefits from it, you know, dismissing certain claims and real consequences flowed from that earlier conversation.

[00:06:52] Speaker 00:
Yes.

[00:06:52] Speaker 04:
So the court clearly gave it credence.

[00:06:55] Speaker 00:
Yes, I think that's true.

[00:06:56] Speaker 00:
And still, it wasn't a full substitute for confrontation.

[00:06:59] Speaker 00:
In California versus Green, the Supreme Court talks about how it's not just observing demeanor that's important, but it's also putting the witness under oath that guarantees the truthfulness and being able to compel the witness to answer questions.

[00:07:15] Speaker 00:
In that interview with the defense team, we weren't able to answer or ask all of the questions we wanted to or press for an answer.

[00:07:23] Speaker 00:
refused to give certain answers.

[00:07:25] Speaker 00:
And because we didn't want her to hang up, lose this opportunity to investigate, we had to back off of certain avenues of questioning.

[00:07:34] Speaker 00:
And that's not a problem in an actual hearing in real confrontation.

[00:07:38] Speaker 00:
The other question is this, the issue of being emotional.

[00:07:43] Speaker 00:
I'll address that just to clarify.

[00:07:45] Speaker 00:
This was not an excited utterance, as the government argues.

[00:07:49] Speaker 00:
In CEPEDA, this court

[00:07:51] Speaker 00:
stated that an excited utterance must have been a spontaneous reaction, not the result of reflective thought.

[00:07:58] Speaker 00:
And these statements were not spontaneous.

[00:08:01] Speaker 00:
They were all answers to law enforcement questioning during the investigative and reporting process.

[00:08:09] Speaker 04:
I think it sounded fairly spontaneous.

[00:08:10] Speaker 04:
She was very emotional.

[00:08:13] Speaker 04:
Her responses sounded like she was reliving the moment.

[00:08:17] Speaker 00:
It was still in response to that law enforcement questioning.

[00:08:22] Speaker 00:
It wasn't the 911 call, for example, which was not produced by the government during the hearing.

[00:08:28] Speaker 00:
It was after the fact giving these answers.

[00:08:32] Speaker 00:
And if this evidence were admissible in court, that would be something for the court to consider in terms of credibility, but it doesn't single-handedly

[00:08:42] Speaker 00:
Create a justification for admitting this evidence.

[00:08:47] Speaker 00:
I see my time is running low So unless the court has other questions, I'll reserve for rebuttal.

[00:08:51] Speaker 03:
Thank you All right, I'm not sure I'm gonna trace it Rehe.

[00:08:58] Speaker 03:
Oh, okay.

[00:08:59] Speaker 03:
I got it.

[00:09:00] Speaker 03:
Oh

[00:09:03] Speaker 02:
Good morning, may it please the court, Mark Reahey, for the United States.

[00:09:07] Speaker 02:
Your Honor, Comito itself says that the right to confrontation is not static, it depends on the circumstances, and going right into good cause,

[00:09:16] Speaker 02:
The court is also very clear that good cause varies, of course, depending on specific circumstances.

[00:09:22] Speaker 02:
Here, we don't deny that the government below could have made a better record about the efforts it made, but the evidence that was in the record still shows that there is indeed something to put on our side of the balance.

[00:09:35] Speaker 02:
In fact, to start with that, it's not just even about the subpoena efforts.

[00:09:39] Speaker 02:
Excerpt of record 144, that is the revocation petition, it's presented under

[00:09:45] Speaker 02:
penalty of perjury, the probation officer indicated that, you know, this was a Christmas Eve attack on January 5th, 2023.

[00:09:53] Speaker 02:
Within two weeks, the detective already was unable to get a response or to contact the victim.

[00:09:59] Speaker 02:
And at the very end of that body cam video, Officer Alvarez tells the victim, Sky, he goes, a detective will be in contact with you.

[00:10:08] Speaker 02:
So here we have right off the bat, and unfortunately, as this court's case law has recognized, I would point to footnote six of the Hall opinion, it's well recognized that victims of domestic violence incidents are often reluctant to cooperate, even after they have initially made a 911 call like they did here.

[00:10:27] Speaker 02:
So that evidence is undisputed that the detective was unable to make contact.

[00:10:33] Speaker 02:
And then I know it.

[00:10:36] Speaker 02:
defense counsel pointed out when the prosecutor was questioned he said when I took off this case and that was in January 30th of 2023 was when the defendant said I'm going to contest this the revocation hearing was just six weeks later on March 27th in early February is when the prosecutor makes contact with Detective Tenenbaum he said at the time I first contacted her she was still trying to make efforts to subpoena on behalf of the state

[00:11:04] Speaker 02:
so the way the government sees this record is that at that point the prosecutor believed it was futile and you know it's not like federal agents are assigned to revocation here it's usually our chief witnesses when the state declines to prosecute

[00:11:18] Speaker 02:
are the local law enforcement officers.

[00:11:20] Speaker 02:
But here, having had that record of the defendant was unwilling, or not the defendant, the victim was unwilling to cooperate from the get-go, and having heard, and he said it was at least more than one effort to subpoena, he didn't make the further effort.

[00:11:34] Speaker 02:
Now, in addition to that, we have these facts here.

[00:11:38] Speaker 02:
The defense, just six days before the hearing, made an attempt to subpoena, unsuccessful,

[00:11:46] Speaker 02:
And, you know, I think what's even more interesting is what came out of that conversation.

[00:11:50] Speaker 02:
Basically, by that point, Ms.

[00:11:52] Speaker 02:
Gallegos was visiting the defendant again regularly, having regular phone calls.

[00:11:57] Speaker 02:
When the defense investigator called her to talk, she said, I can't talk to you until I verify with the defendant that you're working for him.

[00:12:06] Speaker 02:
These are all circumstances that we believe also go to good cause, because under Comito,

[00:12:12] Speaker 02:
And you know, Camito was decided in 1999.

[00:12:15] Speaker 02:
There has not been a lot of published case law since then.

[00:12:19] Speaker 02:
But if Camito says it's a totality of the circumstances approach,

[00:12:23] Speaker 02:
There's a whole lot of circumstances here that still support the district court's finding.

[00:12:28] Speaker 02:
And in Comito itself, I think the government said that the proffer was that the victim was afraid of the defendant.

[00:12:35] Speaker 02:
And she was there in the courtroom that day.

[00:12:38] Speaker 02:
I mean, those kind of things are not present here.

[00:12:41] Speaker 02:
And as we pointed out, we know that the defense wants to make this case look like a carbon copy of Comito.

[00:12:47] Speaker 02:
It was not a violent altercation.

[00:12:50] Speaker 02:
It was, you know, using checks or ATM card.

[00:12:54] Speaker 02:
The victim didn't call 911.

[00:12:56] Speaker 02:
She called a probation officer.

[00:12:58] Speaker 03:
Are you suggesting that Ms.

[00:13:00] Speaker 03:
Gallego was afraid of Mr. Ackbar and that's why she didn't want to testify?

[00:13:05] Speaker 03:
Because I didn't see anything in the record to establish that.

[00:13:07] Speaker 02:
No, but what we're saying is it's not always from fear.

[00:13:10] Speaker 02:
As you know, the scholarly literature points out, she just wouldn't cooperate with our position.

[00:13:15] Speaker 02:
And sometimes that comes from rekindled affection.

[00:13:17] Speaker 03:
But it doesn't seem as if this good cause requirement puts that much of a burden on the government.

[00:13:26] Speaker 03:
Here, the government could have at least tried to subpoena her.

[00:13:29] Speaker 03:
Then they would have had done something rather than rely on this state's efforts that aren't described in the record.

[00:13:35] Speaker 03:
We don't really know what the state did, so it's hard to say if that establishes futility.

[00:13:40] Speaker 02:
Well, I think the district court, Judge Burns pointed that out and basically told the prosecutor, I think in the future, you ought to have done that.

[00:13:49] Speaker 03:
And didn't the prosecutor say something like, I'm a less is more sort of prosecutor, so we didn't really do much here?

[00:13:57] Speaker 02:
He said he was less is more, but I think at that point, I don't know that he wasn't saying like, I'm lazy and I don't want to do anything.

[00:14:02] Speaker 02:
He also said that he's had a lot of history before, you know, dealing with domestic violence cases and instead of getting, you know, caught up in a morass and trying to force somebody who doesn't want to testify.

[00:14:12] Speaker 02:
He said, I immediately went to work to get the body cam footage and to find the other circumstantial evidence.

[00:14:18] Speaker 03:
But the difficulty with domestic violence victims as witnesses is addressed in Camino and in our case law in that the government can present the hearsay as long as they show some good cause for why they're doing it.

[00:14:30] Speaker 03:
It's not an all or nothing sort of approach that it's a domestic violence case and she doesn't want to testify so that's good enough that hearsay comes in.

[00:14:37] Speaker 03:
So I think what I'm struggling with in your position is that it doesn't seem like the government did much at all.

[00:14:44] Speaker 02:
Well, and again, I would say, you know,

[00:14:47] Speaker 02:
You already have, again, excerpt of record 144.

[00:14:50] Speaker 02:
It's undisputed by the defense that the detective was unable to reach her within two weeks of the incident.

[00:14:55] Speaker 03:
But we don't know how many times the detective called or tried to reach her, if the detective went to her house, how many subpoenas they attempted to serve.

[00:15:03] Speaker 03:
We don't know any of that detail.

[00:15:05] Speaker 02:
That's true, but we know that the conclusion was that they didn't get contact.

[00:15:09] Speaker 02:
We also know that the district attorney chose not to present charges, so I think it's a fair... What if a state detective is also a less-is-more kind of person?

[00:15:17] Speaker 01:
And then we're left with, at multiple levels, people not doing a whole lot and just sort of looking at this situation and making a judgment call about domestic violence situations generally.

[00:15:27] Speaker 02:
Well, again, this is a revocation hearing.

[00:15:30] Speaker 02:
This isn't a brand new trial.

[00:15:32] Speaker 02:
It's a balancing process.

[00:15:34] Speaker 02:
It's not as if nothing was done here.

[00:15:36] Speaker 02:
And even then, you still have to balance it against the reliability.

[00:15:39] Speaker 02:
I mean, here, there's no question.

[00:15:41] Speaker 02:
She invoked 911.

[00:15:44] Speaker 02:
They came, they responded, we have her statements, the detectives made an effort.

[00:15:48] Speaker 02:
I mean, yeah, it would make the record better if, you know, and I even told the other process in the future, you know, put that person on the stand to say, I went this day, that day, and this day.

[00:15:57] Speaker 02:
But there was never any dispute.

[00:15:59] Speaker 02:
It's not even that the defense was disputing that these efforts weren't made.

[00:16:02] Speaker 04:
You say it's not as if nothing happened.

[00:16:05] Speaker 04:
What evidence is there of actual efforts to contact her and serve a subpoena by the federal government?

[00:16:12] Speaker 02:
Yeah, the prosecutor.

[00:16:13] Speaker 04:
What evidence did the federal government try to serve a subpoena on her?

[00:16:17] Speaker 02:
Well, no, the federal said that once it came to me, we did.

[00:16:20] Speaker 04:
I'm talking about the federal.

[00:16:21] Speaker 04:
You said it's not like the feds didn't do anything.

[00:16:23] Speaker 04:
I'm asking, did they do anything about trying to serve the subpoena?

[00:16:29] Speaker 04:
It seems to me the efforts they did were to try to get around serving the subpoena.

[00:16:34] Speaker 04:
We've got an alternative.

[00:16:36] Speaker 04:
So my question is to challenge your statement that it's not as if the federal government did nothing.

[00:16:41] Speaker 02:
You know what I think, because I've been there so long and again with these revocation hearings, when I say the feds, you know, at that point, the detective becomes our witness.

[00:16:50] Speaker 02:
If the detective had been able to subpoena the witness and bring her in, I could stand up here and say, on behalf of the federal government, the detective did that.

[00:16:58] Speaker 02:
So once we take over revocation hearing,

[00:17:01] Speaker 02:
It's not like we get assigned new agents, but you're right.

[00:17:05] Speaker 02:
There was no new federal officer, we're not denying that, that at that point went forward because the prosecutor was told at that point, you know, that the detective couldn't make phone contact, had been trying to get a... The state couldn't.

[00:17:18] Speaker 02:
Correct.

[00:17:19] Speaker 04:
Right.

[00:17:20] Speaker 04:
Okay, I think I understand the facts.

[00:17:23] Speaker 04:
Don't spend any more time on my question.

[00:17:25] Speaker 02:
But it's again with you know, this was the evidence that was put forward and then on the other side of the balance Camito says it's not a static right.

[00:17:34] Speaker 02:
You have an issue of reliability here we have you know under the victim.

[00:17:38] Speaker 02:
The video itself confirms that.

[00:17:41] Speaker 02:
it is as if it is an excited utterance.

[00:17:43] Speaker 02:
And again, the rules of evidence do not even apply to revocation hearings.

[00:17:47] Speaker 02:
But as this court held in hall, to the extent you have evidence that does, in fact, satisfy federal rules of evidence, that actually is an issue of reliability.

[00:17:57] Speaker 02:
And here, the victim, I mean, she was consistent.

[00:18:00] Speaker 02:
Even there was evidence that in her jail calls later, she continued to make this allegation.

[00:18:05] Speaker 02:
And it was never as if she recanted that.

[00:18:10] Speaker 02:
I think on this record that the result that the court reached was reasonable too, because as Your Honor pointed out, the court still credited a lot of what the defense turned up.

[00:18:20] Speaker 02:
The theft allegation was dismissed, and the battery was reduced to a misdemeanor.

[00:18:25] Speaker 02:
So in the end, I mean, with all the evidence that came in, that seems like a reasonable result.

[00:18:30] Speaker 02:
And I see I'm nearing the end of my time.

[00:18:32] Speaker 02:
Unless there are any further questions, the government would submit.

[00:18:34] Speaker 03:
Thank you.

[00:18:40] Speaker 03:
Mr. Eaton.

[00:18:48] Speaker 00:
Thank you.

[00:18:49] Speaker 00:
I have two quick points to make.

[00:18:51] Speaker 00:
I first want to address the council for the government mentioned there's no dispute that efforts were made and

[00:18:59] Speaker 00:
And that's true to the extent that there's nothing concrete for us to dispute.

[00:19:04] Speaker 00:
We don't know what efforts the detective made.

[00:19:07] Speaker 00:
So it could be true that the detective made a couple of phone calls, may or may not have left any voicemails.

[00:19:16] Speaker 00:
Maybe there was more, maybe there wasn't.

[00:19:18] Speaker 00:
To the extent that the government feels that the detective essentially became their agent or their witness by being in contact with the USA, what they could have done in this case and at a minimum should have done was bring that detective as a witness,

[00:19:34] Speaker 00:
have the detective testify as to what efforts were made.

[00:19:37] Speaker 00:
At that point, there is an actual record before the district court and before this court to evaluate, but that's missing here.

[00:19:44] Speaker 03:
Or they could have at least made a proffer of what the detective would say about those efforts.

[00:19:48] Speaker 00:
I think it's unclear if a proffer would be sufficient, but they could have made a fuller proffer.

[00:19:52] Speaker 00:
They could have done that, but they didn't.

[00:19:54] Speaker 00:
This proffer definitely was not sufficient.

[00:19:57] Speaker 00:
The other only thing I'll note is that Hall was a domestic violence case.

[00:20:01] Speaker 00:
Due process or a good cause still came up in that hearing and with that I'll submit.

[00:20:07] Speaker 03:
Thank you.

[00:20:07] Speaker 00:
Thank you.

[00:20:12] Speaker 03:
All right, so Council thank you both for your arguments and this case is submitted.

[00:20:17] Speaker 03:
The next case for argument is