[00:00:08] Speaker 03:
the appellant, I'd like to reserve two minutes for rebuttal.

[00:00:15] Speaker 03:
The issue in this case is whether an ankle monitor that starts beeping during jury selection violates the presumption of innocence.

[00:00:24] Speaker 01:
I don't know that the jury actually heard that, number one, and knew that in fact it was an ankle monitor.

[00:00:34] Speaker 03:
How do we know that?

[00:00:35] Speaker 03:
Well, there are several reasons.

[00:00:42] Speaker 03:
at Sidebar, he said, the, you know, it started beeping, the jury is watching me, it heard it, and the jury is watching me fiddle with it.

[00:00:56] Speaker 03:
And here we have... Yes.

[00:01:08] Speaker 03:
Right, and this is important.

[00:01:10] Speaker 03:
You know,

[00:01:12] Speaker 03:
trial lawyers you know sometimes they'll pat their client on the back or something like that but in this case he said the jury is watching me fiddle with it so we have a male attorney leaning down to fiddle with his female client's ankle so that's one thing the judge also said I heard it too and then here's the other thing now the judge did say he didn't think anybody would know what it was however

[00:01:41] Speaker 03:
When they finally took a break, sent the jury out to decide, you know, that they're going to cut it off, the judge says, and this is on 2 ER 123, the judge says, let's do this, ladies and gentlemen.

[00:02:09] Speaker 03:
someone that he says, and we'll be bringing you back as soon as we address this technical issue.

[00:02:17] Speaker 03:
So I don't think there's any question that the jury was aware of this BBing and what it was.

[00:02:25] Speaker 03:
And it's, I think that that's, and it's particularly, you know, when you have the lawyer leaning down and fiddling with his client's ankle.

[00:02:35] Speaker 03:
The other thing is, is that,

[00:02:38] Speaker 03:
general public and the jury would not know what an ankle monitor was.

[00:02:43] Speaker 03:
It's very, you know, everybody watches Netflix.

[00:02:46] Speaker 03:
I mean, you know, it's very, very common and they're notorious for malfunctioning.

[00:02:54] Speaker 02:
So, counsel, how was your client prejudiced by the peeping, assuming that the jury heard it?

[00:02:58] Speaker 02:
Sure.

[00:03:00] Speaker 03:
Well, if the court finds that

[00:03:12] Speaker 03:
that it was harmless beyond a reasonable doubt.

[00:03:14] Speaker 03:
But here we have the fact that, first of all, she was acquitted of the distribution count.

[00:03:25] Speaker 02:
And in terms of... Doesn't that count against you, though?

[00:03:28] Speaker 02:
Doesn't that show that the jury is picking and choosing the evidence and looking at it, weighing it very carefully?

[00:03:49] Speaker ?:
And the informant came and she asked him, do you need crap?

[00:03:53] Speaker 03:
And she said, you know, I don't think there's any fentanyl or something in here.

[00:03:56] Speaker 03:
But this is clearly one addict speaking to another addict.

[00:04:00] Speaker 03:
And Miss Wiley, we're not going to sugar coat it.

[00:04:02] Speaker 03:
She has a terrible, terrible drug problem.

[00:04:05] Speaker 03:
But there was nothing to show that she wasn't

[00:04:20] Speaker 03:
Even if you don't agree that it was insufficient, it was clearly weak.

[00:04:25] Speaker 03:
And so we have the jury.

[00:04:32] Speaker 03:
If this ankle monitor hadn't been beeping and hadn't this big ruckus of having to send out the jury because of this device malfunctioning, we have the jury thinking this woman

[00:05:05] Speaker 03:
or this ankle monitor goes, if you go somewhere that you're not supposed to be, we're going to find out about that.

[00:05:12] Speaker 03:
And it's going to, you know, all these bells and whistles are going to go off.

[00:05:14] Speaker 03:
It's definitely a restraint.

[00:05:16] Speaker 03:
And I think the important thing is- It's different than a restraint from a shackle, right?

[00:05:20] Speaker 02:
A shackle is about, this person is dangerous, and if we don't want to shackle him, he's going to attack someone.

[00:05:26] Speaker 02:
Right, but a- I have two responses to this.

[00:05:29] Speaker ?:
This is geo-fencing.

[00:05:38] Speaker 03:
Yes, but a defendant who needs to have an ankle monitor to make sure that she shows up in court singles her out as some kind of a bad person.

[00:05:52] Speaker 03:
She has a defect in her personality because she's not going to show up in court or it also shows that she's in some kind of custody.

[00:06:00] Speaker 03:
Where's that coming from?

[00:06:01] Speaker 03:
Is there evidence of that?

[00:06:21] Speaker 03:
somebody is wearing an ankle monitor is because they are a criminal, because the court has imposed restrictions on their behavior that is different from the public at large.

[00:06:36] Speaker 03:
And I think this is another thing, you know, Dec versus Missouri, which, you know, says you can't have these, you know, visible shackles with their unjustified and so on.

[00:06:46] Speaker 03:
We have to keep up with the times.

[00:06:51] Speaker 03:
where the US Supreme Court said.

[00:06:53] Speaker 03:
Well, let me go back.

[00:06:55] Speaker 03:
California Supreme Court said...

[00:07:35] Speaker 03:
U.S.

[00:07:36] Speaker 03:
Supreme Court said

[00:08:08] Speaker 02:
cases where jurors see someone in handcuffs.

[00:08:11] Speaker 02:
And the Ninth Circuit has said in those cases it's not reversible error.

[00:08:17] Speaker 02:
That's actually seen someone in handcuffs.

[00:08:20] Speaker 02:
These were not handcuffs, these were not restraints, so tell us why if the handcuff cases you don't automatically win, why should you win in this case?

[00:08:30] Speaker 03:
Well, I think the handcuff cases

[00:08:35] Speaker 03:
The Ninth Circuit has held it is not per se reversible and I would agree with that.

[00:08:41] Speaker 03:
But in most of those cases are where they saw the defendant in the hallway with handcuffs or something like that or whatever.

[00:08:49] Speaker 03:
But in this particular case, you know, we have a young female with this, you know, beeping going off and you have to stop the court.

[00:08:59] Speaker 03:
and send the jury out and take care of it.

[00:09:02] Speaker 03:
It draws an enormous amount of attention to this ankle monitor.

[00:09:09] Speaker 03:
And that, I think, sets it apart from just having to see.

[00:09:15] Speaker 03:
They glanced at the handcuffs.

[00:09:18] Speaker 03:
It was no big deal.

[00:09:19] Speaker 03:
I think that it's a much bigger deal than seeing handcuffs, frankly.

[00:09:24] Speaker 03:
Am I out of time?

[00:09:25] Speaker 02:
You have 44 seconds.

[00:09:58] Speaker 03:
shows up in court.

[00:10:00] Speaker 03:
She was in court.

[00:10:02] Speaker 03:
I mean, we have a young female, you know, in court with all this bells and, you know, beeping going off that her lawyer is struggling and, you know, fiddling, as he said, with the

[00:10:17] Speaker 03:
with her ankle in front of the jury, and then the judge stops the proceedings and sends everybody out and says, we have to take care of this.

[00:10:27] Speaker 03:
That's an unusual situation.

[00:10:44] Speaker 03:
That's the reason why she was prejudiced, and that's why this Court should reverse.

[00:10:49] Speaker 02:
I'll give you your overtime.

[00:10:51] Speaker 02:
I'll give you a minute.

[00:10:52] Speaker 03:
Thank you.

[00:11:03] Speaker 04:
Good morning, Your Honors.

[00:11:04] Speaker 04:
May it please the Court, Carly Palmer on behalf of the United

[00:11:11] Speaker 04:
to create a circuit split by extending deck to ankle monitors, especially because this court has already found that shackles or handcuffs bring in different implications than other devices, and because this was a brief and inadvertent exposure.

[00:11:26] Speaker 04:
I'd like to start by correcting the record, which is that the district court here never talked to the jury about the ankle monitor.

[00:11:33] Speaker 04:
The conversation that defense counsel mentioned had to do with a headset,

[00:11:39] Speaker 04:
heart of hearing needed to use in order to hear the judge.

[00:11:42] Speaker 04:
So this judge never talked to the jury about the ankle monitor or the beeping.

[00:11:47] Speaker 04:
That's what makes this case different.

[00:11:59] Speaker 04:
said that they don't know where that's coming from.

[00:12:01] Speaker 04:
That's not implausible.

[00:12:02] Speaker 04:
That's not illogical.

[00:12:03] Speaker 04:
That has a basis in the record.

[00:12:06] Speaker 04:
This is a beeping.

[00:12:07] Speaker 04:
This is a low battery alarm.

[00:12:08] Speaker 04:
So it's a beep.

[00:12:10] Speaker 04:
We hear beeps everywhere.

[00:12:11] Speaker 04:
Cell phones, laptops, if you've been in the district courthouse in LA, it's wired up.

[00:12:15] Speaker 04:
There are monitors everywhere.

[00:12:16] Speaker 04:
There's a podium that goes up and down with the push of a button.

[00:12:19] Speaker 04:
Many things that could beep.

[00:12:21] Speaker 04:
As for the defense attorneys fumbling beneath or behind council table, people keep backpacks

[00:12:29] Speaker 04:
even if a juror saw the defense attorney fiddling with his client's ankle, people wear medical devices.

[00:12:36] Speaker 04:
I have a colleague whose Apple Watch beeped during trial because her heart rate got high when she was nervous.

[00:12:42] Speaker 04:
Things beep everywhere, and so there's nothing logical or implausible about the district court's conclusion that even if the jurors heard that beeping, they didn't know where it was coming from.

[00:12:52] Speaker 04:
And so there's no proof here of actual prejudice.

[00:12:55] Speaker ?:
There's no polling.

[00:13:01] Speaker 01:
Yes, Your Honor.

[00:13:04] Speaker 04:
And I would argue even that isn't enough, because DEC is based on visibility of the devices.

[00:13:11] Speaker 04:
So if you look at DEC, you look at Holbrook, they talk about devices being visible over and over again, because when someone is in visible shackles, that implicates those concerns that DEC talks about.

[00:13:21] Speaker 04:
It implicates this person's in custody.

[00:13:23] Speaker 04:
They're a bad person who needs to be separated.

[00:13:25] Speaker 04:
It potentially interferes with their access to counsel.

[00:13:28] Speaker 04:
That's not implicated here.

[00:13:30] Speaker 04:
And it hurts the decorum of a judicial proceeding if we don't think a defendant's being treated respectfully.

[00:13:35] Speaker 04:
That's not in play here.

[00:13:37] Speaker 04:
So because DEC isn't in play here, I would argue that not only do we have the 10th Circuit and Higgins, we have the 6th Circuit.

[00:14:30] Speaker 04:
no implication of custody, Your Honor.

[00:14:32] Speaker 04:
So the concern when we see someone in shackles, when we see someone in prison guard, this person's in pretrial custody because they've been found dangerous.

[00:14:39] Speaker 04:
You know, under the Bill Reform Act, there was no set of conditions that this person could be out in the public and the public wouldn't be in danger.

[00:14:57] Speaker 04:
may not show up for court, and that's not relevant to a case.

[00:14:59] Speaker 04:
Perhaps if this case involves some issue of flight, some allegation of flight, you could argue that, well, if they knew it was an ankle monitor, they thought she could be subject to flight, she's more likely to flee, the defendant fled the scene, there's no channel cause of inferences here.

[00:15:13] Speaker 04:
And it's certainly not as prejudicial as being a criminal defendant in a case.

[00:15:19] Speaker 04:
There are many cases in which an ankle monitor might go off where someone's not necessarily going to trial in a case for a drug trafficking conspiracy.

[00:15:26] Speaker 04:
So to the extent there's any slight prejudice here, it's not the same as being a criminal case.

[00:15:33] Speaker 04:
where some jurors saw the defendant in handcuffs just outside the courtroom.

[00:15:39] Speaker 04:
And this court found there was no inherent prejudice there, because it was a brief and inadvertent exposure.

[00:15:45] Speaker 04:
And those kinds of brief and inadvertent exposures do not require reversal.

[00:15:49] Speaker 04:
That's what this court found in Wharton and Bernal and Alano.

[00:15:53] Speaker 04:
I also want to point out the facts here are actually better for the government than they were for the White case in the Sixth Circuit.

[00:15:59] Speaker 04:
If you look at the district court opinion in White, that alarm started screaming,

[00:16:03] Speaker 04:
Call your officer.

[00:16:05] Speaker 04:
Call your officer.

[00:16:06] Speaker 04:
Call your officer.

[00:16:07] Speaker 04:
And the judge had to quickly stop trial and get the jury out of the courtroom.

[00:16:12] Speaker 04:
Here, all we have is a low battery beep.

[00:16:14] Speaker 04:
It's being addressed quietly at sidebar.

[00:16:17] Speaker 04:
The judge is handling it efficiently.

[00:16:19] Speaker 04:
He's handling it quietly.

[00:16:20] Speaker 04:
He's making sure that probation is notified that they're going to turn this alarm off so if they don't cut the alarm and probation officers come in and disrupt things.

[00:16:27] Speaker 04:
He times the cutting of the angle monitor when they're dealing with that technical difficulty with the headset for the juror who's hard of hearing.

[00:16:42] Speaker 04:
I think that really applies here so the greater the intensity of the shackling and the change visibility to the

[00:16:57] Speaker 04:
the jurors would keep coming back to visibility, the greater the extent of the prejudice.

[00:17:02] Speaker 04:
And so in that case, that was a leg brace that was underneath the pants.

[00:17:05] Speaker 04:
The jurors knew about it in the courtroom.

[00:17:07] Speaker 04:
So Walker was actually in the courtroom case.

[00:17:09] Speaker 04:
They knew about it.

[00:17:10] Speaker 04:
They saw it when the defendant was walking to and from the stand.

[00:17:13] Speaker 04:
And even in that case, this court found that it was only one part of the trial.

[00:17:19] Speaker 04:
His hands were unencumbered.

[00:17:21] Speaker 04:
And so it didn't have that same degree of prejudice.

[00:17:25] Speaker 04:
than the Shackles and Deck, or the gag at Illinois, or the four uniformed officers in Holbrook.

[00:17:30] Speaker 04:
One of the things we have to look at is sort of the interference between the accused and their attorney in here.

[00:17:41] Speaker 01:
There's several instances in the record that talk about that interference, isn't there?

[00:17:48] Speaker 04:
I don't believe so, if Your Honor would let me know what he's referring to.

[00:18:24] Speaker 01:
case law talks about?

[00:18:26] Speaker 04:
No, Your Honor, because that's the kind of multitasking, quite frankly, that attorneys do in trials all the time, is court, you know, listen to what jurors are saying, talk to their client, listen to the judge, take notes.

[00:18:36] Speaker 04:
There's nothing here that's unusual.

[00:18:38] Speaker 04:
And this is only one hour in the course of a three-day trial.

[00:18:41] Speaker 04:
So this is a very small period.

[00:18:43] Speaker 04:
There's nothing in the record indicating that the defense attorney wasn't able to do his job despite raising these vague concerns at the side.

[00:18:50] Speaker 04:
He doesn't.

[00:18:54] Speaker 04:
doesn't ask the court to delay jury selection so that we can deal with the monitor.

[00:18:59] Speaker 04:
That's why we have a plain error standard here, is all the things he didn't do.

[00:19:02] Speaker 04:
But they also indicate that this wasn't an out-of-hand situation that really restricted access.

[00:19:07] Speaker 02:
That was my question.

[00:19:08] Speaker 02:
What standard?

[00:19:09] Speaker 02:
The government's arguing for plain error because he didn't specifically ask for a mistrial.

[00:19:13] Speaker 02:
But clearly, he was saying something was wrong.

[00:19:15] Speaker 02:
So why isn't that enough to raise the attention to the court to then figure out what the proper remedy is if there was an issue?

[00:19:25] Speaker 04:
Because it never, the defense attorney never gave the district court an opportunity to correct an alleged error.

[00:19:32] Speaker 04:
He said, there's this beeping going on.

[00:19:34] Speaker 04:
The court proposed a series of solutions, and he said, thank you, your honor, and they went on.

[00:19:38] Speaker 04:
He never objected to the court's proposed solutions, never proposed others, never moved to strike the panel, never moved for a mistrial.

[00:19:45] Speaker 04:
He never did anything that let the district court fix the alleged problem of the district court's response.

[00:19:49] Speaker 02:
But assuming that the district court said, yes, I hear that, and that's a due process violation,

[00:19:58] Speaker 02:
remedy that in some way.

[00:20:00] Speaker 02:
The problem here is the defense counsel brought it to district court's attention, but the district court then found it not to be prejudicial or not a violation.

[00:20:08] Speaker 02:
So why, but if the district court went the other way, then it was clearly would have been preserved.

[00:20:13] Speaker 02:
So I just wonder why we should apply plain error here.

[00:20:17] Speaker 04:
So I think it's all the things that the defense attorney didn't do, but even if this court were to apply an

[00:20:27] Speaker 04:
court's decision in Corbin, that balancing of security issues and efficiency issues, so we've got a jury waiting, we've got to get this going, I want to make sure the defendant gets their choice of jurors.

[00:20:37] Speaker 04:
With these indicia of innocence, that's exactly the kind of thing where we want to defer to a district court who is managing their courtroom.

[00:20:44] Speaker 04:
And under an abusive discretion standard, here there was no abusive discretion.

[00:20:48] Speaker 04:
This was one of a range of reasonable actions that the district court could have taken.

[00:20:53] Speaker 04:
So this court should be doing exactly what

[00:21:05] Speaker 04:
but the defendant didn't get a fair trial.

[00:21:39] Speaker 03:
to be removed.

[00:21:41] Speaker 03:
And in terms of when we get back into the trial, when the jury selection is going on and the defense attorney is fiddling with many objects and he moves to sidebar, remember, this sidebar was attended by the FBI agent, you know, I mean, so why is an agent as well as... It's not objected to, though.

[00:22:00] Speaker 03:
That's not preserved.

[00:22:02] Speaker 03:
No, but I'm saying in terms of the

[00:22:10] Speaker 03:
agent went to sidebar with the U.S.

[00:22:13] Speaker 03:
attorney, the jury is watching this, you know, something is going on, and then when the judge announces to the jury, we're going to take a break to fix this device and

[00:22:38] Speaker 03:
That's exactly what I'm saying.

[00:22:40] Speaker 03:
Anyway, thank you.

[00:22:44] Speaker 02:
Thank you, Council, that this case will be submitted.