[00:00:03] Speaker 03:
May it please the court.

[00:00:05] Speaker 03:
Good morning.

[00:00:05] Speaker 03:
Good morning.

[00:00:07] Speaker 03:
I'm Karen Landau, and I represent Araceli Mendoza.

[00:00:10] Speaker 03:
I'd like to reserve two minutes for rebuttal, and I'll watch my clock.

[00:00:14] Speaker 05:
How long for rebuttal?

[00:00:15] Speaker 05:
Two.

[00:00:16] Speaker 05:
OK.

[00:00:16] Speaker 03:
Sorry.

[00:00:18] Speaker 03:
There we go.

[00:00:20] Speaker 03:
Tall to short.

[00:00:22] Speaker 05:
I know.

[00:00:22] Speaker 03:
Well, I have that challenge myself.

[00:00:27] Speaker 03:
I'm going to try to address three, optimistically, I'm going to try to address three arguments.

[00:00:33] Speaker 03:
First, the evidentiary arguments that are presented in the brief, the prosecutorial misconduct, and then the question of how a duress defense should be construed for purposes of the TVPA.

[00:00:50] Speaker 03:
Before I start, I'd like to say that this is a very close case.

[00:00:56] Speaker 03:
The jury obviously accepted Ms.

[00:01:01] Speaker 03:
Mendoza's duress defense, at least in part.

[00:01:03] Speaker 03:
They acquitted her of one count.

[00:01:06] Speaker 03:
They hung on another, and they convicted her of one trafficking count and the conspiracy.

[00:01:11] Speaker 05:
Were you a trial counsel?

[00:01:12] Speaker 03:
I was not.

[00:01:14] Speaker 03:
I was not.

[00:01:14] Speaker 03:
I'm not a trial lawyer, Your Honor.

[00:01:15] Speaker 05:
Okay.

[00:01:16] Speaker 03:
You wouldn't want to see me in a trial.

[00:01:18] Speaker 05:
Well, I'm not going to make that judgment.

[00:01:21] Speaker 05:
Well, we won't go there.

[00:01:23] Speaker 03:
But I think that this was a closed case, and that informs all of the arguments that are presented.

[00:01:33] Speaker 03:
So the count that Ms.

[00:01:35] Speaker 03:
Mendoza was convicted of, the substantive count, was the trafficking of BM.

[00:01:40] Speaker 03:
I'm just going to use her initials.

[00:01:42] Speaker 03:
And she was the first to join the group aside from Ms.

[00:01:47] Speaker 03:
Mendoza.

[00:01:50] Speaker 03:
Part of the reason that evidentiary issues are so important is that Ms.

[00:01:57] Speaker 03:
Mendoza was not allowed to testify in her own defense about her belief that the

[00:02:02] Speaker 03:
that Guizar, the main perpetrator, the only perpetrator, was a gang member that she believed and why she believed that, and particularly the gang that he was a member of.

[00:02:14] Speaker 05:
That... Well, now the court, is that accurate?

[00:02:17] Speaker 05:
The court limited.

[00:02:18] Speaker 05:
The court limited it.

[00:02:20] Speaker 05:
But my review of the record reflects that the jury did know that he was

[00:02:31] Speaker 03:
associated with the gang and there was evidence before that.

[00:02:47] Speaker 03:
to testify that based on her investigation, he wasn't in good standing and he really, you know, he was really kind of on the outs.

[00:02:56] Speaker 03:
He was in bad standing, which in gang terms means, you know, you're not, you can't associate, you can't call first, you know, you might even have a green light put on you.

[00:03:06] Speaker 03:
So when you put those two together, the government was able to undermine the issue that, you know, the point that she legitimately feared

[00:03:16] Speaker 03:
because of her knowledge of the dangers that gang members presented.

[00:03:23] Speaker 01:
But to be specific and to follow up on Judge Callahan's point, as I read the record, she was allowed to testify as to her subjective belief as to whether he was a gang member and that he wore the color red frequently, but she was not allowed to testify objectively that he was.

[00:03:43] Speaker 01:
And that seems to raise it open for the prosecution to be able to rebut and say, actually, he was not a gang member in good standing.

[00:03:53] Speaker 01:
So why was that an abusive discretion?

[00:03:55] Speaker 03:
It was an abusive discretion.

[00:03:57] Speaker 03:
Well, first of all, because what was relevant, first of all, I do think she was unduly limited, and I don't want to spend too much time on this point.

[00:04:05] Speaker 03:
I do think she was unduly limited.

[00:04:07] Speaker 05:
Well, it's good to spend time on the points the court's asking you about.

[00:04:11] Speaker 05:
That's your right.

[00:04:12] Speaker 03:
Your point, Your Honor, and my apologies.

[00:04:14] Speaker 05:
We are relevant to this.

[00:04:15] Speaker 03:
You are relevant, very relevant.

[00:04:21] Speaker 03:
So I guess my reading is different.

[00:04:22] Speaker 03:
She wasn't allowed to testify about her belief.

[00:04:25] Speaker 03:
And where the court limited it, that wasn't.

[00:04:30] Speaker 03:
You're right, though, that objective factors supporting gang membership came in.

[00:04:34] Speaker 03:
largely a lot of it through the government's own presentation of the photographs of him, et cetera.

[00:04:40] Speaker 03:
But the problem is that there was no linkage between her belief and her understanding.

[00:04:47] Speaker 03:
There was nothing to show that she knew anything about that he was in bad standing, or even how she could have known that.

[00:04:55] Speaker 03:
Because they were off in their own little world, and there was no

[00:05:01] Speaker 03:
There were other men coming and going, but there was no showing of a link that she knew anything about gang procedure.

[00:05:08] Speaker 02:
Just going back a step, she did testify that he was gang affiliated and that all he had to do was make a call.

[00:05:14] Speaker 03:
That's what she said, yes.

[00:05:15] Speaker 03:
That went to her belief.

[00:05:18] Speaker 02:
That's what she did.

[00:05:18] Speaker 02:
So why wasn't that sufficient?

[00:05:20] Speaker 02:
And why doesn't it then turn to the discretion of the trial court under 403 as to whether more is needed in terms of issues of foundation?

[00:05:29] Speaker 03:
First of all, we have a Sixth Amendment right here to testify in our own defense.

[00:05:33] Speaker 03:
And so it's a constitutional analysis.

[00:05:35] Speaker 03:
And the court cut her off at a point where she was trying to testify about her understanding of the

[00:05:42] Speaker 03:
Well, I don't quite understand what you're saying.

[00:05:46] Speaker 05:
She testified, but she has a right not to testify.

[00:05:49] Speaker 05:
I don't understand what you're saying here.

[00:05:51] Speaker 05:
She testified, right?

[00:05:53] Speaker 03:
She did testify.

[00:05:54] Speaker 05:
Once you get up there, and I was a trial lawyer for a very long time and a trial judge, you open that door sometimes and a lot of things come flying through.

[00:06:04] Speaker 05:
This whole thing

[00:06:07] Speaker 05:
if these jurors, people can't really imagine what this whole world is.

[00:06:12] Speaker 05:
And so they're taken into the, essentially into the underbelly of a world where you've got trafficking, you've got prostitution, you've got gang issues, and they're asked to

[00:06:27] Speaker 05:
to make these decisions.

[00:06:28] Speaker 05:
You're right.

[00:06:29] Speaker 05:
They deliberated, I think, like eight days or something.

[00:06:31] Speaker 05:
They had some questions.

[00:06:33] Speaker 05:
She wasn't convicted of everything.

[00:06:36] Speaker 05:
But there was testimony to the jurors about how this world worked.

[00:06:43] Speaker 05:
And she was able to testify that she was allowed to put a duress defense on, albeit limited from your perspective.

[00:06:51] Speaker 05:
But I'm just trying to figure out, what is it that the jury really didn't know here?

[00:06:57] Speaker 03:
So I think my point is, and what I'm trying to make, what perhaps I'm doing in a very inartful way is that there were errors, and I talked about the gang one, but there are also errors in allowing Contreras to testify about accepting responsibility for her behavior and that her situation didn't excuse her behavior, that sort of thing.

[00:07:21] Speaker 03:
These, the case was close enough that small, the errors that wouldn't otherwise have mattered, mattered here.

[00:07:28] Speaker 03:
And I guess that's my point.

[00:07:29] Speaker 05:
Well, okay.

[00:07:30] Speaker 05:
But if we're talking about errors, are most of these, the limitations are decided under abusive discretion?

[00:07:38] Speaker 03:
That's correct.

[00:07:40] Speaker 05:
Trial judges have a pretty wide latitude.

[00:07:42] Speaker 05:
If there are good reasons to limit it and there are other reasons that you don't want it limited, it's, we don't get to say, I don't get to say, what would Judge Callahan have done if I had been the trial judge?

[00:07:53] Speaker 05:
And maybe, you know, sometimes abusive discretion can be upheld with either way because it's left to the person on the ground.

[00:08:01] Speaker 03:
But it's not, it is and it isn't.

[00:08:04] Speaker 03:
It is, when the case is closer, you're more likely to find an abuse of discretion, and I would cite Waters for that.

[00:08:10] Speaker 03:
for that point, US versus Waters.

[00:08:13] Speaker 02:
With respect to the Contreras testimony, the co-defendants testimony, which you've just referred, given that an effort was made to impeach her credibility, why wasn't it an appropriate question to ask her how she felt about her conduct?

[00:08:30] Speaker 03:
Well, it would have been one thing if that was all, but that's not all.

[00:08:35] Speaker 03:
She was asked, I mean, first of all,

[00:08:39] Speaker 03:
Yes, they were entitled to rehabilitate her.

[00:08:43] Speaker 03:
They could have said, you agreed to testify truthfully, et cetera, those things.

[00:08:47] Speaker 03:
But I don't think, but to draw out testimony that being a pregnant teenager didn't excuse your conduct, that really crossed the line.

[00:08:57] Speaker 03:
That was not relevant.

[00:09:00] Speaker 03:
It was unduly prejudicial.

[00:09:02] Speaker 03:
And of course, it was directly

[00:09:04] Speaker 03:
It was set up as a direct comparison to Ms.

[00:09:07] Speaker 03:
Pandora.

[00:09:07] Speaker 05:
But who started it?

[00:09:08] Speaker 05:
The cross-examination started it, and then rehabilitation happens.

[00:09:12] Speaker 05:
It's kind of like a lot of times people want to bring in a good act, and then they're upset when they open Pandora's box and all the bad acts come in.

[00:09:21] Speaker 03:
But Your Honor, the cross-examination didn't open the door to that.

[00:09:26] Speaker 03:
It's one thing you cross-examine people on the facts.

[00:09:29] Speaker 03:
You cross-examine people on the truthfulness

[00:09:32] Speaker 03:
But that doesn't open the door to everything.

[00:09:35] Speaker 03:
And there was an objection.

[00:09:36] Speaker 03:
It was preserved.

[00:09:37] Speaker 03:
I would really like to talk about the jury instruction and the vouching briefly, because I'm really running out of time.

[00:09:45] Speaker 03:
So normally on plain error, it's very difficult.

[00:09:49] Speaker 03:
The court is not usually particularly open to plain error arguments.

[00:09:53] Speaker 05:
OK, so tell us what the vouching is that you're talking about.

[00:09:56] Speaker 03:
I'm talking about the vouching at it's where

[00:10:01] Speaker 03:
The prosecution elicited testimony from the case agent.

[00:10:05] Speaker 03:
We don't prosecute, to this effect, we don't prosecute prostitutes or minors, we prosecute traffickers.

[00:10:12] Speaker 03:
Okay, so that was the first part.

[00:10:13] Speaker 03:
Then it went on where the prosecutor asked the agent, did you, you know, you investigated it and you determined that we should have a prosecution, yes.

[00:10:25] Speaker 03:
But you didn't make the decision to prosecute, no.

[00:10:27] Speaker 03:
Who made the decision?

[00:10:29] Speaker 03:
You made the decision to prosecute.

[00:10:30] Speaker 03:
So the prosecutor placed her personal credibility behind the case itself, and that was not invited.

[00:10:36] Speaker 05:
Well, okay, but didn't you call into, when I say you, your client, called into issue about, your client's defense was, I am a victim of trafficking myself, and I was under duress, and therefore I cannot be guilty of conspiracy.

[00:10:58] Speaker 05:
So if you already, you open that can, that can of whatever we want to call it or open Pandora's box, then the theory of not being just a mere prostitute are not the people they're going after because you have the whole theory of the bottoms and all of that.

[00:11:19] Speaker 05:
It just seems like if you, if that's the defense you want to put on,

[00:11:24] Speaker 05:
than the prosecutors in a position of explaining why being a victim doesn't, the fact that you've been a victim at some point doesn't exempt you from conviction?

[00:11:36] Speaker 03:
Well, of course, but that doesn't allow the prosecutor to commit misconduct and vouch for their case.

[00:11:42] Speaker 03:
There's a difference between saying, and they did, they presented a lot of evidence that my client wasn't a victim and why they didn't believe that she was, or why, they countered with a lot of evidence.

[00:11:54] Speaker 03:
They presented text messages, they presented all kinds of evidence.

[00:11:57] Speaker 03:
That was all legitimate.

[00:11:58] Speaker 03:
They cross-examined my client, allowed to do that, no problem.

[00:12:02] Speaker 03:
But what the prosecutor isn't allowed to do is to commit misconduct and say,

[00:12:07] Speaker 03:
I chose to prosecute this case.

[00:12:09] Speaker 03:
I stand behind it.

[00:12:10] Speaker 03:
I mean, I'm paraphrasing.

[00:12:11] Speaker 03:
Obviously, she didn't say those words.

[00:12:14] Speaker 05:
Did the prosecutor ever say, I believe this witness, I believe that one, or?

[00:12:18] Speaker 03:
No, she didn't.

[00:12:19] Speaker 03:
But she did it effectively through the case agent.

[00:12:25] Speaker 05:
Well, but the case agent was explaining how you can be theoretically

[00:12:32] Speaker 05:
to people that know nothing about trafficking, how all of these witnesses at some point probably were victims of trafficking.

[00:12:41] Speaker 05:
That's how they got into it.

[00:12:42] Speaker 05:
They were prostitutes.

[00:12:44] Speaker 05:
But that doesn't therein make you a trafficker.

[00:12:48] Speaker 05:
And they're saying, your decision as a jury, is this person a trafficker?

[00:12:53] Speaker 05:
Is this person participating in a conspiracy?

[00:12:56] Speaker 05:
And you've got to explain what the elements are.

[00:12:59] Speaker 03:
But that ignores

[00:13:01] Speaker 03:
that disregards her entire testimony.

[00:13:04] Speaker 03:
It started out as testimony about why they didn't prosecute minors, and the case agent explained, we don't prosecute minors, minors can't do all these things.

[00:13:15] Speaker 03:
And then she went into this whole thing about how we prosecute traffickers, and then went on from there about who made the decision to prosecute.

[00:13:24] Speaker 03:
The prosecutor made herself a witness.

[00:13:26] Speaker 01:
Well, let me ask about the prejudice side of this.

[00:13:30] Speaker 01:
There were many witnesses here.

[00:13:34] Speaker 01:
I think the government put on 10 witnesses, a defense called seven.

[00:13:38] Speaker 01:
If you want to call it vouching, the vouching happened over a small couple of lines of the record.

[00:13:46] Speaker 01:
You have evidence of Ms.

[00:13:49] Speaker 01:
Mendoza booking hotel rooms, advertising for this, arranging for these meetups.

[00:13:58] Speaker 01:
Her proffer statements come in.

[00:14:00] Speaker 01:
Why should we consider this to satisfy prejudice under a plain error review standard?

[00:14:08] Speaker 03:
Because, as I said, it was a very close case.

[00:14:13] Speaker 03:
There was evidence that Ms.

[00:14:15] Speaker 03:
Mendoza was under duress very shortly, if not at the very beginning, very shortly after the beginning.

[00:14:22] Speaker 03:
And the length, I mean, I can't emphasize enough, there were eight days of jury deliberations for a nine-day trial.

[00:14:31] Speaker 03:
That's pretty unusual.

[00:14:32] Speaker 03:
The jury had questions.

[00:14:34] Speaker 03:
There was, I mean, this is the type of thing that, this was a particularly egregious form of vouching.

[00:14:44] Speaker 03:
I'm almost out of time.

[00:14:46] Speaker 03:
I'm going to devote one minute to my jury instruction argument and then I'll- Well, you don't even have one minute left.

[00:14:55] Speaker 05:
How about if I give you two minutes for rebuttal and you can listen to what the government says and I'll give you two minutes on rebuttal and then if you want to still cover that, you can.

[00:15:05] Speaker 03:
Okay.

[00:15:06] Speaker 03:
Thank you, Your Honor.

[00:15:16] Speaker 04:
Good morning.

[00:15:17] Speaker 04:
Good morning.

[00:15:17] Speaker 04:
May it please the court, Annie Schaefer, the United States.

[00:15:24] Speaker 04:
This court should affirm for three reasons.

[00:15:28] Speaker 04:
The District Court's evidentiary rulings were well within its discretion under Rule 403.

[00:15:33] Speaker 04:
The District Court's instruction on duress was correct as a matter of law and was supported by the evidence, and there was no imprudent control or misconduct rising to the level of plain error.

[00:15:45] Speaker 05:
Since we left off on the vouching, why don't you jump into that and talk about the ... You were trial counsel, is that correct?

[00:15:53] Speaker 04:
Yes, Your Honor, I was one of the trial counsel.

[00:15:54] Speaker 05:
All right, so why don't you respond to the vouching that you have been accused of?

[00:15:59] Speaker 04:
Yes, Your Honor.

[00:16:02] Speaker 04:
two lines of questioning that are challenged here, as my friend points out.

[00:16:07] Speaker 04:
Both are responsive specifically to topics that were raised by the defense in the cross-examination.

[00:16:12] Speaker 04:
And so it begins with the defense's cross-examination, and it starts for ER 766 to 67.

[00:16:18] Speaker 04:
If you look at the record, defense counsel asks Agent Trombetta,

[00:16:22] Speaker 04:
a number of questions about the legality of prostitution, the application of criminal laws for juveniles versus adults, whether there is a federal system of prosecuting juveniles.

[00:16:34] Speaker 04:
And he does this after eliciting from Agent Trombetta the fact that she was actually a licensed attorney in addition to being an FBI agent, that she was a prior defender

[00:16:43] Speaker 04:
and a prior DA.

[00:16:46] Speaker 04:
And so he does this, and he starts eliciting all these opinions about prosecution policies and laws.

[00:16:53] Speaker 05:
So it started on Cross.

[00:16:56] Speaker 05:
You didn't go there first.

[00:16:59] Speaker 04:
Your Honor, the majority of Agent Trombetta's testimony during the government's case in chief was to admit evidence, the substantive evidence that was obtained in this case.

[00:17:08] Speaker 04:
And so Agent Trombetta spent most of her time discussing her conduct of the investigation in this case and admitting all the different back page ads, the hotel records, the Instagram records, and so forth, which the government was submitting as substantive evidence for guilt.

[00:17:23] Speaker 01:
Well, counsel, let me ask this.

[00:17:26] Speaker 01:
I understand the defense may have opened the door to this, but at the same time, the questioning from the government elicited responses that you don't make the decision to prosecute, the U.S.

[00:17:40] Speaker 01:
Attorney's Office does, and we traffickers, not prostitutes.

[00:17:47] Speaker 01:
Why isn't that vouching?

[00:17:49] Speaker 01:
Why isn't that putting the impromptu of the U.S.

[00:17:52] Speaker 01:
Attorney's Office through the mouth of the witness to say, we only go after the bad guys?

[00:17:57] Speaker 01:
Isn't that coming up on some of the cases that are deemed it vouching?

[00:18:02] Speaker 04:
Yes, Your Honor.

[00:18:03] Speaker 04:
I do want to say there's no direct case on point, first of all, when it comes to vouching.

[00:18:06] Speaker 04:
But there are some principles that are certainly relevant here.

[00:18:09] Speaker 04:
And so one, vouching typically occurs when a prosecutor is vouching for the credibility of a witness

[00:18:14] Speaker 04:
or the veracity of evidence in the case.

[00:18:17] Speaker 04:
So if you look at cases like Hermannic and Edwards, and these also invoke another rule called the witness advocate rule, in which the prosecutor injects him or herself into the case as a witness, those are cases in which ultimately the problem is you're inviting the jury to

[00:18:34] Speaker 04:
convict based off something besides the evidence, the prestige of the government, for example.

[00:18:39] Speaker 04:
That's not what occurred here.

[00:18:40] Speaker 04:
And I think context ultimately matters, and it matters for both the error portion and for determining prejudice.

[00:18:46] Speaker 04:
And so again, with regard to that quote, I did, when the prosecutor asked, you know, do you charge cases?

[00:18:53] Speaker 04:
Who charges cases?

[00:18:54] Speaker 04:
The U.S.

[00:18:54] Speaker 04:
attorney's offices, I did, right, versus the investigator.

[00:18:58] Speaker 04:
That was a response, first, directly to 4ER 796 to 98,

[00:19:02] Speaker 04:
in which the defense counsel was soliciting from Agent Trombetta, essentially got from her that she made probable cause determinations in her search warrants that two of the co-defendants, meaning Guisar Cuellar and Ms.

[00:19:15] Speaker 04:
Contreras, were traffickers and that Mendoza and Anthony had only committed the distribution of child pornography.

[00:19:21] Speaker 04:
And so what the prosecutor was entitled to do in redirect was to provide clarifying information that regardless of these probable cause determinations and what investigators may determine in their search warrants,

[00:19:32] Speaker 04:
The charging decisions are a completely different entity.

[00:19:35] Speaker 04:
And that's, again, I do want to point out there were no objections raised at this time.

[00:19:39] Speaker 04:
The court did not stop the prosecutor because in the context of trial, when this occurred in redirect and direct response to what was happening across the examination, everyone in the courtroom understood that this was to answer or to provide clarifying information on that specific piece.

[00:19:54] Speaker 04:
I do see that read in a vacuum.

[00:19:57] Speaker 04:
The phrasing here, the we prosecute traffickers and the I did appears problematic, but that's why prosecutorial misconduct isn't read in a vacuum.

[00:20:06] Speaker 04:
That's why we look at context.

[00:20:08] Speaker 04:
And the Ninth Circuit, I think it's United States versus, I can't pronounce the name correctly, but Nicosia.

[00:20:15] Speaker 04:
There's a number of factors in which the court considers to determine whether or not vouching ultimately rises to reversible conduct.

[00:20:23] Speaker 04:
Again, it's a multi-factor test, but you look at the form of vouching, the timing of it, and so forth.

[00:20:28] Speaker 04:
And when you look at those factors here, again, as you point out, Judge Sanchez, this occurred in the middle of trial.

[00:20:35] Speaker 04:
Agent Trombetta was one of 10 government witnesses, 17 overall witnesses.

[00:20:40] Speaker 04:
She was one of probably eight law enforcement witnesses.

[00:20:44] Speaker 04:
She actually testified both in the government's case in chief and its rebuttal.

[00:20:48] Speaker 04:
And most of her case was about emitting a lot of the substance of evidence in this case.

[00:20:56] Speaker 01:
And what about Ms.

[00:20:56] Speaker 01:
Landau's argument that this was a close one?

[00:20:59] Speaker 01:
There were many, many days of jury deliberation, and so hung jury on one, acquittal on another count.

[00:21:07] Speaker 01:
Does that tip us closer if there was vouching toward a finding of prejudice or substantial violation of rights under a plaintiff review?

[00:21:16] Speaker 04:
Well, first of all, I do disagree with the characterization that this was a close case.

[00:21:19] Speaker 04:
I think it's dangerous to speculate based off of a jury's verdict or trying to get into celebrations why it reached a certain verdict.

[00:21:26] Speaker 04:
To determine whether or not a case is close, we look at the evidence.

[00:21:29] Speaker 04:
We look at what was presented to the jury.

[00:21:31] Speaker 04:
And if we look at the case here, we have, again, the records replete with documentary evidence of both Mendoza's case.

[00:21:38] Speaker 04:
And I do want to point that

[00:21:41] Speaker 04:
There were hundreds of pages of Ms.

[00:21:43] Speaker 04:
Mendoza's Instagram records, her communications with her co-defendants, which were contemporaneous evidence of her conduct and her willing participation in this conspiracy throughout that entire conspiracy period.

[00:21:55] Speaker 04:
The jury had that and it had also a very fulsome case presented by Ms.

[00:21:59] Speaker 04:
Mendoza as to the abuse that she suffered.

[00:22:01] Speaker 04:
and the trauma that she suffered, starting from when she was a child.

[00:22:05] Speaker 04:
It looked at all of this, and it was entitled to weigh all its evidence, and based off the evidence, it found that both the government had proven guilt beyond a reasonable doubt, and that Ms.

[00:22:16] Speaker 04:
Mendoza had not met her duress defense.

[00:22:19] Speaker 05:
So she was allowed to put a duress offense on, but there were some limitations.

[00:22:24] Speaker 05:
Can you explain, and I didn't quite,

[00:22:28] Speaker 05:
So is there a Fifth Amendment issue here?

[00:22:31] Speaker 05:
Because she chose to testify.

[00:22:33] Speaker 05:
I didn't quite understand that.

[00:22:35] Speaker 05:
Yeah, I recognize she has a Fifth Amendment right not to testify, but she did.

[00:22:39] Speaker 04:
Yes, Your Honor.

[00:22:40] Speaker 04:
So absolutely.

[00:22:42] Speaker 04:
Can you respond to that?

[00:22:43] Speaker 04:
Yes.

[00:22:44] Speaker 04:
Defendants have a Sixth Amendment right to testify.

[00:22:46] Speaker 04:
It is not absolute.

[00:22:47] Speaker 04:
This court has the time and again, and I think there's a case, it's actually a duress case here, United States versus Moreno.

[00:22:54] Speaker 04:
This is 102F, 3rd, 994.

[00:22:57] Speaker 04:
It says the constitutional right to testify is not absolute.

[00:23:00] Speaker 04:
Without question, the government has legitimate interest in excluding evidence which is not relevant or is confusing under rules 402 or 403.

[00:23:08] Speaker 04:
That's what the district court did here was with regards to the gang affiliation evidence, for example.

[00:23:15] Speaker 04:
The government was trying to preclude this evidence because it was trying to avoid the 403 problem of inviting a mini trial on a subsidiary issue

[00:23:23] Speaker 04:
that ultimately it was quite complicated.

[00:23:26] Speaker 04:
Once Ms.

[00:23:26] Speaker 04:
Mendoza opened that door, and she certainly did so both during the defense's cross-examination of the government's witnesses as well as during her own testimony, the government was entitled to provide information to rebut that.

[00:23:42] Speaker 05:
So when you say that the mini trial would have been on whether he is actually a gang member, is that what you're saying?

[00:23:50] Speaker 04:
Yes, Your Honor.

[00:23:50] Speaker 04:
Because for Ms.

[00:23:52] Speaker 04:
Mendoza's subjective belief in Mr. Grisard's gang membership to be relevant,

[00:23:58] Speaker 04:
It has to be relevant to the elements of the duress offense.

[00:24:01] Speaker 04:
So it has to support two of the factors, which is whether she had a well-grounded fear of an immediate threat of death or bodily harm, and second, whether she had any reasonable opportunity to escape.

[00:24:12] Speaker 04:
So certainly, to some extent, her subjective beliefs that Mr. Guizar-Cuella was in a gang and therefore, in her own words, could just make a call and have her killed would only be relevant

[00:24:23] Speaker 04:
if Mr. Gweeser Quiller was in fact in a gang and could do that.

[00:24:28] Speaker 04:
And so once she opened the door to that, the government wasn't able to present a rather complicated picture.

[00:24:33] Speaker 04:
And I don't know if the evidence is really supported or

[00:24:37] Speaker 04:
helped either party in this case.

[00:24:39] Speaker 02:
Once the government was permitted to present evidence as to he was no longer an active gang member, if that's an issue, then why was it appropriate to limit the defendant's testimony on that to a very focused area?

[00:24:54] Speaker 02:
Why wasn't she permitted to give more of her views?

[00:24:58] Speaker 04:
Your Honor, first of all, there was no proffer in this case and the government's not clear what more Ms.

[00:25:04] Speaker 04:
Mendoza would have testified to.

[00:25:05] Speaker 04:
The facts that she testified to were already before the jury, which was how long she had known Mr. Grisar-Craylor, seeing him every single day, the clothes that he wore, the fact that he wore a hat with the letter B on it, the fact that she was raised being familiar with Nortonos and they always wore red.

[00:25:22] Speaker 04:
Again, the testimony that she wanted to get in that supported her belief in Mr. Guizar's gang membership were all before the jury.

[00:25:31] Speaker 01:
In other words, she wanted to testify and was stopped from testifying that he was a gang member.

[00:25:38] Speaker 01:
But when the government rebutted it with the agent's testimony, I guess it was established that he was a gang member, but just not one in good standing any longer.

[00:25:48] Speaker 04:
By the time the agent testified as far as a gang membership, Your Honor, it was in the government's rebuttal case.

[00:25:54] Speaker 04:
And the court actually gave the defense a chance to put on a sub-rebuttal case, which was very uncommon.

[00:25:59] Speaker 04:
The defense did not.

[00:25:59] Speaker 04:
So the defense could have put Ms.

[00:26:01] Speaker 04:
Mendoza back on the stand if it wanted to and made the argument that we want to put more evidence as far as gang membership, but it did not do so here.

[00:26:09] Speaker 04:
The limitations occurred at the very beginning, and they were during Ms.

[00:26:12] Speaker 04:
Mendoza's, not even during Ms.

[00:26:13] Speaker 04:
Mendoza's testimony, sorry, they were,

[00:26:18] Speaker 04:
Actually, I'm sorry.

[00:26:18] Speaker 04:
They were during Ms.

[00:26:19] Speaker 04:
Mendoza's testimony.

[00:26:20] Speaker 04:
And then later on during her cross-examination, she actually offered more information.

[00:26:25] Speaker 04:
She made the exact statement.

[00:26:26] Speaker 04:
He was in a gang.

[00:26:28] Speaker 04:
He could have made a call at any time.

[00:26:29] Speaker 01:
So stepping back, it seems to me that the trial court gave a great deal of leeway to the defense to put on this duress defense, including her own experience having been a victim and been brought into this life.

[00:26:44] Speaker 01:
and not only the physical violence that she suffered, but also other forms of coercive conduct by, I'm forgetting his name now, Grisard Cuellar.

[00:26:57] Speaker 01:
What do you make of, and I'm anticipating Ms.

[00:27:00] Speaker 01:
Landau's arguments, but what do you make of the argument that the jury instruction should have reflected other forms of coercion beyond what the common law has identified?

[00:27:14] Speaker 04:
I want to discuss it from, I guess, two different angles.

[00:27:17] Speaker 04:
First of all, when it comes to the instruction itself, this was correct as a matter of law.

[00:27:21] Speaker 04:
And so the policy arguments that Ms.

[00:27:23] Speaker 04:
Mendoza is making, I will address shortly.

[00:27:26] Speaker 04:
But as far as the idea that she was limited in presenting evidence about the trauma she'd suffered, she was not.

[00:27:34] Speaker 04:
She was able to present

[00:27:37] Speaker 04:
a plethora of evidence with regard to the abuse that she experienced from Mr. Guizar-Craylor, as well as outside of the conspiracy.

[00:27:46] Speaker 04:
It had... Yes, Your Honor.

[00:27:48] Speaker 04:
Go ahead.

[00:27:48] Speaker 04:
I'm sorry.

[00:27:49] Speaker 05:
Maybe you can cover on the... There was a request for a different instruction, the instruction that was given.

[00:27:55] Speaker 05:
There were eight days of deliberation.

[00:27:58] Speaker 05:
There were jury questions about the instruction and the court answered.

[00:28:02] Speaker 05:
So I think your friend,

[00:28:05] Speaker 05:
on the other side is going to probably respond to that.

[00:28:08] Speaker 05:
So maybe give your perspective on that.

[00:28:10] Speaker 05:
Is that where you were going?

[00:28:11] Speaker 02:
Yes.

[00:28:12] Speaker 02:
And I would add this.

[00:28:14] Speaker 02:
The statute has two elements.

[00:28:16] Speaker 02:
There's two different crimes that can be committed under the statute, trafficking and minors and trafficking and nonminors.

[00:28:22] Speaker 02:
Yes, Your Honor.

[00:28:23] Speaker 02:
And the standards are different.

[00:28:25] Speaker 02:
Yes, Your Honor.

[00:28:26] Speaker 02:
Why wouldn't it be appropriate to consider the standards that apply to an adult who's being allegedly coerced into being trafficked in considering that adult and whether that adult was coerced under duress and with respect to the trafficking of minors?

[00:28:46] Speaker 04:
I want to look at it from first the duress defense, which is a common law defense that has been well defined by this court to have rather strict elements and defines harm in a certain way.

[00:28:56] Speaker 04:
And then you have, of course, section 1591.

[00:28:59] Speaker 04:
And so there is neither support from either the case law surrounding the duress offense or the statute itself for the fact that we should conflate these two.

[00:29:09] Speaker 04:
and essentially create or expand the duress defense for those who happen to have been also trafficked, which again was not one of the charges in this case.

[00:29:22] Speaker 04:
This was again a case in which the Ms.

[00:29:26] Speaker 04:
Mendoza was charged with the sex trafficking of children, which does not even implicate that coercion definition as the court has been alerted to.

[00:29:34] Speaker 04:
And so I think that the question of whether or not, why should we not use this coercion instruction, well, again, that's a policy argument, Your Honor.

[00:29:43] Speaker 04:
And it's just not supported by the law.

[00:29:45] Speaker 04:
And I think what the court did here when we're looking at instructions and we're looking at it for an abuse of discretion, the court was well, well within its discretion and did what was legally correct here, which is it used the Ninth Circuit instruction.

[00:29:57] Speaker 04:
And then it gave a modification to the defense.

[00:29:59] Speaker 04:
It actually added a line that said, in determining these elements,

[00:30:03] Speaker 04:
you can consider the defendant's circumstances, including, and it gave a number of factors.

[00:30:11] Speaker 04:
And so Judge Sanchez, when you were mentioning whether or not she could present all these other forms of harm, she certainly did.

[00:30:18] Speaker 04:
She was allowed to present that to the extent that it supported the elements of duress.

[00:30:24] Speaker 01:
And as I understand it, that additional instruction allowed the jury to consider this other evidence in terms of reasonable fear and the ability to escape those determinations of the instruction.

[00:30:39] Speaker 01:
Is that your understanding?

[00:30:41] Speaker 05:
Yes, Your Honor.

[00:30:42] Speaker 05:
So then if we go to the question, there were questions.

[00:30:47] Speaker 05:
And the judge gave an answer, because the jury was struggling.

[00:30:53] Speaker 05:
You could infer from the questions they were struggling with duress.

[00:30:59] Speaker 05:
What happened there?

[00:30:59] Speaker 05:
I realize we're taking you over, but I know that that's going to be discussed.

[00:31:04] Speaker 04:
Yes, Your Honor.

[00:31:05] Speaker 04:
Thank you.

[00:31:06] Speaker 04:
The question by the jury, again, was, if the defendant is under duress for only a portion of the time charged, is that sufficient for a defense, or must the defendant be under duress for the entire time being charged?

[00:31:16] Speaker 04:
The court provided in the answer that

[00:31:18] Speaker 04:
If the crime charge involves a period of time, the defendant must prove she was under arrest for the entire time period charged in that count.

[00:31:26] Speaker 04:
is consistent with this court's case law on duress.

[00:31:30] Speaker 04:
You look at cases like Bracera and Janell, which is what the district court cited.

[00:31:34] Speaker 04:
And those are cases that involve a conspiracy period.

[00:31:37] Speaker 04:
And the court found that duress was not met, because during that entire conspiracy period, there were periods of inactivity, reasonable opportunities to escape, periods in which the defendant was not participating in the conspiracy, and so forth.

[00:31:49] Speaker 04:
And so from that legally, this instruction or this answer was correct.

[00:31:54] Speaker 04:
Whether or not it was within its discretion to give one, I think Warren is helpful in this case in which

[00:32:02] Speaker 04:
You're kind of between a rock and a hard place as a trial judge deciding when it's appropriate to answer a supplemental question, you know, given a supplemental instruction on that question or not.

[00:32:11] Speaker 04:
And I think the court weigh those factors here.

[00:32:14] Speaker 04:
And one of the factors that you look at is whether or not the instructions that are already available do answer the question.

[00:32:22] Speaker 04:
Now, my friend says, yes, during that very lengthy duress instruction, there's this phrase that says, at the time that the crime is charged, the defendant must meet these three

[00:32:30] Speaker 04:
factors or elements.

[00:32:33] Speaker 04:
Again, it's not very clear that that actually answers the jury's question.

[00:32:38] Speaker 04:
And there was legally a clear answer to the jury's question.

[00:32:41] Speaker 04:
And so as a matter of discretion, what the court did here was proper in that respect.

[00:32:48] Speaker 05:
I know I'm well over my time.

[00:32:49] Speaker 05:
We don't have any other questions.

[00:32:50] Speaker 05:
Okay.

[00:32:50] Speaker 05:
Thank you.

[00:32:51] Speaker 05:
Thank you.

[00:32:52] Speaker 02:
Thank you, Ms.

[00:32:52] Speaker 02:
Shea.

[00:32:53] Speaker 05:
All right.

[00:32:53] Speaker 05:
So I'll give you three minutes and you can see where we were focusing.

[00:32:59] Speaker 05:
So that could take you into the instruction if you want.

[00:33:02] Speaker 03:
Actually, I would like to start with the instruction.

[00:33:06] Speaker 03:
So I think that there's a

[00:33:09] Speaker 03:
There's an analytical, so in terms of whether the jury instruction on duress was correct, this is a novel issue.

[00:33:22] Speaker 03:
It may arise again in the context of TVA.

[00:33:25] Speaker 05:
Well, the Ninth Circuit jury instruction, that was the one that was given, and you got some additions to it.

[00:33:30] Speaker 03:
So what's wrong?

[00:33:31] Speaker 03:
Well, I got the Lopez instruction, so let me explain what's wrong.

[00:33:33] Speaker 03:
So the district court rejected the idea that the jury instruction should be parsed in connection with the statute.

[00:33:40] Speaker 03:
And actually, when we're talking about a common law defense, like duress, where

[00:33:46] Speaker 03:
The best ... A common law defense is construed and interpreted in connection with the relevant statute at the time of enactment.

[00:33:58] Speaker 05:
I guess I'm confused.

[00:33:59] Speaker 05:
You're talking legalese.

[00:34:01] Speaker 03:
Okay.

[00:34:01] Speaker 05:
All right.

[00:34:02] Speaker 05:
If the judge had just given the Ninth Circuit instruction.

[00:34:06] Speaker 03:
We would have had a problem.

[00:34:07] Speaker 05:
That's no error.

[00:34:08] Speaker 03:
No, we would have had an error.

[00:34:10] Speaker 03:
Absolutely, we would have had an error, but the judge gave a slightly better instruction, and we do have an error, and the error is that the court .

[00:34:16] Speaker 03:
.

[00:34:16] Speaker 03:
.

[00:34:16] Speaker 05:
So you asked for that addition, you got something, but then that made it worse?

[00:34:22] Speaker 03:
No, I'm not saying it made it worse, Your Honor.

[00:34:24] Speaker 05:
Okay, so I just need to understand what the problem is.

[00:34:28] Speaker 03:
So Your Honor, the problem is that the defense asked for an instruction that would have allowed the immediate harm required by duress to be construed in line with the Trafficking Victims Protection Act.

[00:34:43] Speaker 03:
And the act itself is the best evidence that Congress contemplated a broader duress defense.

[00:34:52] Speaker 03:
Because what we have is a modern statute.

[00:34:55] Speaker 03:
Do you have a case on this?

[00:34:56] Speaker 03:
Yes, Dixon versus United States.

[00:34:58] Speaker 03:
And I would quote, Dixon says, and this was in the context of the burden of proof, but nonetheless, assuming the defense of duress is available to the statutory crimes at issue, then we must determine what the defense would look like as Congress may have contemplated it.

[00:35:13] Speaker 03:
Now, this is a new crime.

[00:35:16] Speaker 03:
This is not a traditional common law crime.

[00:35:20] Speaker 03:
It is not a murder.

[00:35:21] Speaker 03:
It is not a robbery.

[00:35:23] Speaker 03:
It is, and the TVPA itself demonstrates that Congress had an intent of, and I'm going to run out of time, but Congress had an intent to protect women and children.

[00:35:36] Speaker 03:
And it also broadened the scope of prosecution of persons who engaged in trafficking.

[00:35:42] Speaker 03:
So this goes back to why in the context of a prosecution of an adult who is arguably a victim herself,

[00:35:52] Speaker 03:
that we would use a broader definition of duress in drawing the scope of her defense.

[00:35:59] Speaker 05:
Are you wanting an instruction?

[00:36:01] Speaker 05:
If the defendant was a victim of abuse, the defendant cannot be convicted of conspiracy to traffic.

[00:36:10] Speaker 05:
Is that what you want?

[00:36:11] Speaker 03:
Oh, it wouldn't be that broad.

[00:36:12] Speaker 03:
But what it would have allowed, the requested instruction provided for a bigger, so the statute itself defines serious harm.

[00:36:22] Speaker 03:
in a broader way than duress defines physical harm.

[00:36:25] Speaker 03:
Duress, as it's currently in the common law, requires an immediate physical harm or threat of physical harm.

[00:36:35] Speaker 03:
But the TVPA defines coercion and defines the harm in a much broader fashion.

[00:36:41] Speaker 03:
And what was requested was an instruction that tracked the statute.

[00:36:46] Speaker 01:
But so I guess I'm having a little bit of trouble understanding the argument that Congress would have intended to broaden the common law definition of duress to coincide with the statutory definition for sex trafficking because

[00:37:01] Speaker 01:
it seems they cross purposes.

[00:37:03] Speaker 01:
If Congress is expanding the statutory definition of sex trafficking to encompass more types of coercive behavior, why would it also want to expand the definition of duress beyond the common law to exclude from prosecution many more people?

[00:37:18] Speaker 01:
So for example, your definition was including, was proposing threats by

[00:37:23] Speaker 01:
psychological, financial, or reputational harm.

[00:37:26] Speaker 03:
That's right, as provided in the statute.

[00:37:28] Speaker 01:
Right, provided for the prosecution of sex trafficking.

[00:37:32] Speaker 01:
Yes.

[00:37:32] Speaker 01:
So tell me what is it within the statute or congressional intent that would suggest duress should be expanded at the same time?

[00:37:40] Speaker 03:
Well, I think you have to look at the legislative history, which talks about that most of the victims are women and children.

[00:37:50] Speaker 03:
It also talks about there were other things enacted with

[00:37:53] Speaker 03:
And again, when it was revised significantly in 2008, the statute was expanded to provide that victims of serious trafficking shouldn't be prosecuted.

[00:38:05] Speaker 03:
Now, the government was clearly within its rights to prosecute Ms.

[00:38:10] Speaker 03:
Mendoza.

[00:38:10] Speaker 03:
I'm not saying that.

[00:38:12] Speaker 03:
But her defense was limited.

[00:38:17] Speaker 03:
The statute itself, I'm sorry.

[00:38:20] Speaker 03:
Oh, I'm sorry.

[00:38:23] Speaker 02:
If Congress intended by Section 1591 to do what you're saying, why didn't it put that into the statute?

[00:38:30] Speaker 03:
Well, they didn't have to, Your Honor, because under Dixon, we look to the time of enactment to construe a common law defense.

[00:38:38] Speaker 02:
But this is a statutory defense.

[00:38:41] Speaker 03:
No, it's not.

[00:38:42] Speaker 03:
It's not a statutory.

[00:38:43] Speaker 03:
It's a common law defense to a modern statute.

[00:38:47] Speaker 01:
So is there a case where a common law, the common law defense of duress was changed and modified based on the statute?

[00:38:55] Speaker 01:
Yes, you're on, well, not on the statute, but if you look at the duress cases like Bailey, for example- Right, which I understand about escape from prison, but I'm saying, but here you're making this novel argument that the statute itself should modify the duress defense, and I'm asking if there's any

[00:39:14] Speaker 03:
I can't cite a case, Your Honor.

[00:39:17] Speaker 03:
Believe me, I went over Dixon before this argument.

[00:39:19] Speaker 01:
And what about the argument that Judge Kronstadt raised that even if this were to apply in general to a duress defense, it wouldn't apply here because there were minor victims.

[00:39:31] Speaker 01:
And the statutory definition of the TVPA for duress and coercion does not apply to minor victims.

[00:39:37] Speaker 01:
That's true, but the stat well that's not necessarily I'm sorry can you the statutory defense well in other words the definitions for if as I understood it the definitions for coercion or in the TVPA is applied when the victim is an adult victim and

[00:39:57] Speaker 03:
That definition does not apply when that's that's correct a minor And here we had minor victims three minor victims So even if you were right, even if we agreed with you to a certain point It wouldn't be applicable in this case because these were minor victims but the critical point here is that the question is if if my client is a Could be could have been if they could have charged mr. Guizar, for example

[00:40:23] Speaker 03:
with trafficking my client based on force, fear, coercion, then, I mean, that's the, the point is that she arguably qualifies as a victim under the statute.

[00:40:36] Speaker 03:
The government could have prosecuted her trafficker for, based on her, had they chose to do so.

[00:40:44] Speaker 03:
They did not, that's fine.

[00:40:45] Speaker 03:
But the point is that she should have access to that same defense.

[00:40:52] Speaker 05:
Okay.

[00:40:53] Speaker 05:
Did you have any questions?

[00:40:54] Speaker 05:
All right.

[00:40:55] Speaker 05:
We've taken your way over.

[00:40:56] Speaker 05:
So thank you both for your argument in this matter.

[00:40:58] Speaker 05:
This case will stand submitted.

[00:41:00] Speaker 02:
Thank you, Ms.

[00:41:00] Speaker 02:
Shea.

[00:41:01] Speaker 02:
Thank you, Ms.

[00:41:01] Speaker 02:
Landau.