[00:00:02] Speaker 03:
And we'll hear first from Mr. Tanaka.

[00:00:08] Speaker 01:
Good morning.

[00:00:08] Speaker 01:
May it please the Court, Michael Tanaka, appearing on behalf of Dominic Dorsey.

[00:00:14] Speaker 01:
I'm going to confine my argument to the issue of Detective Marsden's opinion and evidence.

[00:00:20] Speaker 01:
I'd like to reserve three or four minutes for rebuttal.

[00:00:23] Speaker 01:
And if the Court has any questions on any of the other issues, I'm, of course, happy to answer them.

[00:00:29] Speaker 01:
The full issue before this jury was who were the men depicted in those surveillance videos robbing the gas station and the bank.

[00:00:39] Speaker 01:
Here, the investigating officer short-circuited the jury's determination by offering his opinion on a number of occasions that those two men were the defendants, Dorsey and Bailey.

[00:00:53] Speaker 01:
None of this was admissible as lay opinion evidence.

[00:00:58] Speaker 03:
On the points, there were a few times where he actually said it was.

[00:01:03] Speaker 03:
And in most, if not all, of those cases, there was an immediate objection, and the judge sustained the objection and made an instruction.

[00:01:14] Speaker 03:
Were there points where he actually says it, and there's an objection, and she rejected that?

[00:01:23] Speaker 01:
Well, the first time he said it,

[00:01:28] Speaker 01:
there was an objection and the judge said just refer to the man as the taller man.

[00:01:34] Speaker 01:
But then as it went on the judge clearly indicated that she believed anytime he expressed his belief that was a proper part of the investigation and thought that it would be handled solely by an admonition and that would suffice.

[00:01:54] Speaker 01:
So he did express it a number of times.

[00:01:58] Speaker 01:
There was an objection in the sense that once counsel realized that the judge was not going to strike it or

[00:02:08] Speaker 01:
excluded, he would have to deal, you know, his only remedy was the admonition and went along with that.

[00:02:15] Speaker 01:
There was really no point in doing anything more than pointing it out and asking for the continuing admonition, but it did continue and he did express that opinion numerous more times.

[00:02:29] Speaker 01:
So, for example,

[00:02:35] Speaker 01:
He said that the first incident was when he said that Dorsey was the one covering his face with the ski mask and all the robberies.

[00:02:48] Speaker 01:
The robber had used the ski mask.

[00:02:50] Speaker 01:
So clearly connecting Dorsey to all the robberies as the one wearing the ski mask.

[00:02:58] Speaker 03:
Pardon?

[00:02:59] Speaker 03:
On that example, Judge Snyder very clearly said that that was improper, didn't she?

[00:03:05] Speaker 01:
She said, let's refer to him as the taller robber.

[00:03:08] Speaker 01:
And the government exceeded and did that.

[00:03:15] Speaker 03:
Did she instruct the jury not to consider what he had said in that occasion?

[00:03:23] Speaker 01:
She said that his opinions were his opinions and they were the arbiter of fact.

[00:03:32] Speaker 01:
by repeating the opinions, and then when he said that, was looking at the photos, and they looked at five photos from five robberies of the shoes the taller, now known as Dorsey Robber was wearing, and then he compared it to a photo of Dorsey, Dorsey's shoes, and said they were the same.

[00:03:56] Speaker 01:
The only conclusion, of course, is that Dorsey's the one that's robbing the stores.

[00:04:02] Speaker 01:
Now, that's a jury question.

[00:04:04] Speaker 01:
It wasn't for Detective Morrison to make that comparison.

[00:04:08] Speaker 01:
He had no expertise that the jury didn't have in comparing these photos of these shoes.

[00:04:14] Speaker 02:
Same thing with Bailey's.

[00:04:15] Speaker 02:
But the jury eventually had all of that information and more.

[00:04:21] Speaker 02:
And so in light of the instructions and all of the other evidence, why isn't it harmless error?

[00:04:29] Speaker 01:
Well, there's a number of reasons, John.

[00:04:31] Speaker 01:
At first, this was obviously a closed case.

[00:04:34] Speaker 01:
The first jury heard all of that evidence and did not convict.

[00:04:40] Speaker 01:
In that case, in the first trial, Marsden did not make those comparisons.

[00:04:47] Speaker 01:
He simply narrated the videos.

[00:04:49] Speaker 01:
He didn't say who was wearing the ski mask.

[00:04:52] Speaker 01:
He didn't say that the shoes were the same, that Dorsey's shoes were the same, that Bailey's shoes were the same.

[00:04:58] Speaker 01:
So there were obviously, it was not a slam dunk case.

[00:05:04] Speaker 01:
The government obviously had problems.

[00:05:08] Speaker 01:
no witness IDs, there was no DNA evidence, they didn't recover the distinctive cowboy gun, and perhaps most problematically, the witnesses

[00:05:26] Speaker 01:
regularly and consistently described two men, one taller, one shorter, the shorter one with the gun, that being the government's Larry Bailey, jumping over counters, moving very sprightly, and described his age as maybe somewhere between 25 and 40 years old.

[00:05:47] Speaker 01:
Now Bailey is 68 years old, so that creates a

[00:05:52] Speaker 01:
a really big problem right at the outset.

[00:05:54] Speaker 01:
This man does not match consistent descriptions of all eyewitnesses.

[00:06:03] Speaker 00:
What case would you point us to that comes closest to your client's situation?

[00:06:09] Speaker 00:
Because it seems that some of the cases that you cite in your brief, Piguillo, Marsh, involve situations where the evidence introduced was far more prejudicial than that that we have here.

[00:06:21] Speaker 01:
I'm sorry, far more.

[00:06:23] Speaker 00:
Prejudicial to the defendant.

[00:06:31] Speaker 01:
Any time a detective identifies and opines essentially as the man's guilt, that is prejudicial.

[00:06:47] Speaker 01:
Now, add to it.

[00:06:49] Speaker 01:
that the whole intro to Detective Marston's testimony was that he was a member of the LAPD robbery homicide squad, which is the elite division, the creme de la creme, the unit with the most resources that does the most important cases.

[00:07:07] Speaker 01:
So when he's adding his opinion that, based on his review of the evidence, he believes that Dorsey and Bailey are the men in those videos

[00:07:19] Speaker 01:
That opinion holds more sway than just some Joe Smollett there saying, yeah, I looked at it, and maybe swayed the jury as to giving his opinion more weight than

[00:07:33] Speaker 01:
juror number five or juror number seven, because this is Detective Marston.

[00:07:38] Speaker 02:
I guess it's not just Detective Marston, Idine, Bailey, and Dorsey.

[00:07:44] Speaker 02:
There's still at least the appearance of a comparison.

[00:07:48] Speaker 02:
And yes, a reference to they are the defendants as opposed to those shoes seem to be similar.

[00:07:56] Speaker 02:
But I think most of the testimony is

[00:07:59] Speaker 02:
comparative rather than him saying the man in the video is Dorsey.

[00:08:02] Speaker 02:
That comes up in the context of the comparison, right, of other evidence before the jury.

[00:08:07] Speaker 01:
That's true.

[00:08:09] Speaker 01:
I mean, when he's comparing shoes, he's saying the men in the video are wearing shoes, and this is the same shoe that we see Dorsey wearing.

[00:08:22] Speaker 01:
You know, you might say, well, so what?

[00:08:25] Speaker 01:
I mean, the jury can look at that for themselves.

[00:08:27] Speaker 01:
But in context, it becomes more prejudicial because I asked the court to look at those photos themselves.

[00:08:35] Speaker 01:
They're not really.

[00:08:38] Speaker 01:
There's nothing very distinctive about that shoe.

[00:08:40] Speaker 01:
They would say, oh yeah, that's obviously the same shoe.

[00:08:45] Speaker 01:
They're blurry.

[00:08:46] Speaker 01:
You see a black top sneaker with a white sole.

[00:08:53] Speaker 01:
to say that that's the same shoe.

[00:08:55] Speaker 01:
I'm not sure the jury would have come to that conclusion on their own.

[00:08:59] Speaker 01:
But when you have Detective Morrison saying that, who's part of this investigation and who knows, maybe knows something given the resources of robbery homicide that the jury doesn't know.

[00:09:15] Speaker 01:
Certainly, it's not beyond the realm of possibility that they could believe that his opinion on that is entitled to more weight.

[00:09:24] Speaker 01:
And that's the whole problem here, is that the whole rationale between the rule is not admissible if it's not helpful.

[00:09:36] Speaker 01:
It's not helpful if,

[00:09:39] Speaker 01:
He adds nothing more than the jury could do on their own.

[00:09:44] Speaker 01:
So he didn't need to compare those shoes.

[00:09:46] Speaker 01:
That was for the jury to do.

[00:09:47] Speaker 01:
He didn't need to say that Dorsey was a taller man.

[00:09:55] Speaker 01:
That was the jury to determine.

[00:09:58] Speaker 01:
present the evidence just as it was without offering any of those opinions.

[00:10:03] Speaker 01:
That's the same shoe.

[00:10:04] Speaker 00:
And yet, at the end of the day, it seems to me that those opinions were a pretty small portion of his testimony, which might bring this case closer to Rodriguez, where we found harmless error when the majority of the testimony was admissible.

[00:10:21] Speaker 01:
The vast majority of the testimony was admissible, but it were the opinions that were worried about, the opinions that caused the prejudice, the opinions that could well have swayed this case given the other weaknesses in it.

[00:10:34] Speaker 03:
There's two different types of opinion comments.

[00:10:38] Speaker 03:
One is to have one photo here and one photo there.

[00:10:45] Speaker 03:
and for him to say, in the course of my investigation, I looked at those and I thought they were similar and therefore I proceeded down this line of inquiry.

[00:10:56] Speaker 03:
And then there's, that's Dorsey in that picture.

[00:11:00] Speaker 03:
Now that latter one is clearly improper and the district court, when it was objected to, when those were made, shut that down and said it's not to be considered.

[00:11:14] Speaker 03:
But why is the other category of opinion testimony invalid?

[00:11:20] Speaker 01:
Because that wasn't his comparison to make before the jury.

[00:11:26] Speaker 01:
And we know he did that.

[00:11:27] Speaker 01:
And we know that's why, in any case, the police develop leads or evidence that lead them to suspect someone and pursue a certain investigation.

[00:11:40] Speaker 01:
And that brings the case.

[00:11:41] Speaker 03:
The story of the investigation that he's trying to write would be incoherent if he's not

[00:11:48] Speaker 03:
if he was not able to make some links in how the investigation proceeded.

[00:11:53] Speaker 01:
It's obvious that they focused on him.

[00:12:03] Speaker 01:
I don't think

[00:12:05] Speaker 01:
there's any reason that made the course of the investigation relevant.

[00:12:11] Speaker 01:
He didn't need to add any of that to tell his story for the government to put on its evidence.

[00:12:19] Speaker 01:
We didn't really need to know about the investigation.

[00:12:22] Speaker 01:
That was in the course offering his opinion on that as explaining the investigation.

[00:12:31] Speaker 01:
It just means that government had another witness to tie it all together to give their point of view on the case, to make a closing argument, in a sense, tying it all together, and they had Detective Marston doing that under the guise of explaining the investigation, which was not really relevant.

[00:12:53] Speaker 01:
There was no

[00:12:54] Speaker 01:
There's no probable cause issue.

[00:12:56] Speaker 01:
No one was claiming that they got the wrong guy or they didn't have reason to suspect him.

[00:13:05] Speaker 01:
That's just plainly, here's the evidence, jury, you decide.

[00:13:08] Speaker 03:
I think you wanted to save some time for rebuttal.

[00:13:11] Speaker 03:
OK.

[00:13:12] Speaker 03:
All right.

[00:13:12] Speaker 03:
Thank you.

[00:13:13] Speaker 03:
We'll hear now from Ms.

[00:13:17] Speaker 03:
Bahadur.

[00:13:18] Speaker 03:
Did I pronounce that correctly?

[00:13:19] Speaker 04:
Yes, Your Honor.

[00:13:20] Speaker 03:
Thank you.

[00:13:21] Speaker 03:
You may proceed.

[00:13:25] Speaker 04:
Good morning, Your Honors, may it please the court, Sariah Bahadur on behalf of the United States.

[00:13:30] Speaker 04:
So I will also focus on the lay opinion testimony issue and I'm happy to answer any questions about the LA Times article issue after that.

[00:13:40] Speaker 04:
Judge Collins, I think you pointed out exactly what I was going to say, which is what we have here is we have narration being done of a category of evidence, which is the robbery footage.

[00:13:52] Speaker 04:
And the defense, at least in their reply brief, did not dispute that that was permissible.

[00:13:58] Speaker 04:
And this is at the reply brief at page six.

[00:14:00] Speaker 04:
Marsden's testimony came from his narration and identification of the details in the videos and photographs of the robbers.

[00:14:07] Speaker 04:
No problem there.

[00:14:09] Speaker 04:
We also have narration of surveillance footage of Dorsey walking into a gas station to pay for gas.

[00:14:16] Speaker 04:
as well as surveillance footage of Dorsey and Bailey at the Hollywood Toe, which is an impound lot.

[00:14:22] Speaker 04:
Again, in the reply brief, there's no dispute with that narration either.

[00:14:26] Speaker 03:
Do you view, I mean, as I said, I think there's three categories here.

[00:14:32] Speaker 03:
There's sort of identifying the features, and then there's saying two features are the same, and then they're saying that that means it's Dorsey.

[00:14:46] Speaker 03:
There's sort of three things.

[00:14:48] Speaker 03:
Do you view this comment in the reply brief as conceding both of the first two categories or just the first category?

[00:14:57] Speaker 04:
I don't think that they're conceding the comparison.

[00:15:01] Speaker 04:
I think their view is that the comparison is impermissible, and our view is that the comparison is permissible.

[00:15:09] Speaker 03:
They're objecting to both the comparison and the identification.

[00:15:12] Speaker 04:
It sounds like that's what they're doing, but in our view,

[00:15:15] Speaker 04:
This is having narration done one at a time, and then it being done side by side.

[00:15:21] Speaker 04:
And if this court is comfortable in its cases, Taraba Mandia and Nbige, with doing narration, we don't see how it's not permissible for what this detective did here, because what he's doing is narrating a set of videos, which is

[00:15:36] Speaker 04:
which is evidence that the jury does not have, because Detective Marsden was able to narrate these videos after doing a frame by frame review.

[00:15:47] Speaker 04:
And I do have examples for the court where it's very evident that this took quite some time.

[00:15:52] Speaker 04:
And this is at 4ER-726-27, where Detective Marsden explains just how difficult it was to see whether the shorter robber, who was later identified as Bailey, was missing a ring finger.

[00:16:06] Speaker 04:
And it was not until he used where he slowed it down and went frame by frame where he was able to see that.

[00:16:12] Speaker 00:
Doesn't Detective Marsden in his testimony, he identified the defendants by name several times.

[00:16:18] Speaker 00:
So why doesn't that cross the line from just describing footage to actually giving identification?

[00:16:24] Speaker 04:
So I think there's the one stray reference, which, and I do want to just correct that as well.

[00:16:30] Speaker 04:
There's one stray reference where he was asked about the type of clothing the robbers were wearing, and that's at 4ER719.

[00:16:37] Speaker 04:
And the answer was, Defendant Dorsey covered it with a ski mask.

[00:16:42] Speaker 04:
And the court instructed, let's disregard that and any reference to a face covering and defendant's name.

[00:16:48] Speaker 04:
And let's just ask what he observed the taller defendant wearing and the shorter defendant wearing.

[00:16:53] Speaker 04:
In terms of the other references to the name, I believe that was in the context of, did you eventually identify these two individuals as the robbers?

[00:17:03] Speaker 04:
And did you eventually take steps to further sort of cement that belief?

[00:17:06] Speaker 03:
I understand the argument at the narration phase that he's going to ferret out from all of this and frame by frame.

[00:17:13] Speaker 03:
He's going to ferret out the relevant details.

[00:17:15] Speaker 03:
Here's the frame.

[00:17:17] Speaker 03:
This is the one where you can see that ring finger is missing.

[00:17:21] Speaker 03:
He can do that, and he can say, look, here's the frame.

[00:17:26] Speaker 03:
You can see the shoe.

[00:17:27] Speaker 03:
You can see the white line on the shoe.

[00:17:30] Speaker 03:
But does he have to then take the next step and say, oh, and here he is in a known context, and look at the shoe, and it's the same?

[00:17:41] Speaker 03:
Does he have to do that?

[00:17:43] Speaker 03:
Because that sees what seems to usurp the jury's role and therefore not be helpful.

[00:17:48] Speaker 04:
Right.

[00:17:48] Speaker 04:
Well, of course he doesn't have to have to do anything, but it's whether or not that's permissible.

[00:17:53] Speaker 04:
And it is permissible, at least under this court's decisions, in Taraba, Mandia, for example.

[00:17:58] Speaker 04:
In that case, the officer, this court found it was permissible for the officer to identify the make models of cars that were traveling back and forth to a location where there was alien smuggling going, possibly going on.

[00:18:11] Speaker 04:
And the officer also identified and linked, and this is in the opinion, linked those cars to co-conspirators.

[00:18:17] Speaker 04:
So it is permissible for an officer to not just identify those details that a casual observer might miss, but it is helpful to link those details to the evidence because that is just evidence.

[00:18:32] Speaker 04:
That is evidence that these two individuals are the same.

[00:18:36] Speaker 04:
and it's based on a comparison.

[00:18:39] Speaker 04:
And that was the case in Trava Mendia.

[00:18:41] Speaker 04:
And also, I would direct the court to Begay, because even there, of course, that's a video where there's a riot going on and there is a flurry of activity.

[00:18:49] Speaker 04:
But the officer was permitted in that case to draw arrows and circles around the defendants, linking the defendants to where they were in the videos.

[00:18:59] Speaker 02:
But that was a case where it was a single incident, and you're kind of trying to

[00:19:05] Speaker 02:
Figure out where this shoe is in one frame and where this shoe and the other it's it's the comparison That's it's the problem.

[00:19:11] Speaker 02:
So in trouble mendia, it's not entirely clear from from my reading of the opinion on what basis the witness linked the two I mean it the problem here is it does seem

[00:19:27] Speaker 02:
that the detective is, to the extent it's rationally based on the witness's perception, it is a conclusion that they are the same, rationally based on the witness's well-removed perception of the video, which he's needed for, and then these other identifying factors in photos, which he isn't.

[00:19:46] Speaker 02:
So what's the link that's in Teralba Mendia that you think should control this case?

[00:19:52] Speaker 04:
I think in Taraba Mendiya, the fact that it was permissible rule 701 testimony that the officer in that case was not only allowed to identify the certain details, but also to identify how those details mattered, the import of those details.

[00:20:08] Speaker 04:
And I believe that was both in Begay and Taraba Mendiya, that it is permissible to identify the details and the import of that.

[00:20:19] Speaker 02:
The details, I think, in Tralbamandia were how many passengers there were, or something that, saying that these are the same shoes, where that's what connects the two, seems maybe slightly different.

[00:20:33] Speaker 04:
So two responses, in Trabajmandir, it was actually linking cars.

[00:20:37] Speaker 04:
And the officer did get very specific with make, model, and the type of car.

[00:20:43] Speaker 04:
So I think that's actually far more specific here.

[00:20:45] Speaker 04:
The second response I'll say is saying it's the same shoe is not an effective identification.

[00:20:50] Speaker 04:
We're not talking, and even as my friend said, some of these shoes were blurry, the black shoe, white sole, nondescript.

[00:20:58] Speaker 04:
We're not talking about any uniquely identifying piece of information here.

[00:21:01] Speaker 04:
So him saying this is the same shoe is effectively saying, I reviewed this set of videos.

[00:21:07] Speaker 04:
Again, narration.

[00:21:08] Speaker 04:
There's the black shoe.

[00:21:09] Speaker 04:
I reviewed this set of videos and here are some details.

[00:21:12] Speaker 04:
Again, narration.

[00:21:14] Speaker 04:
I see the same shoe is a shorthand way of saying, this is my narration.

[00:21:18] Speaker 02:
Well, so it's saying that it was Dorsey's shoe, but that's impermissible.

[00:21:22] Speaker 02:
And when you're saying it's the same shoe and it just happens to be one that Mr. Dorsey is wearing in another photo, why isn't that a problem?

[00:21:30] Speaker 04:
We don't view it as impermissible because, again, this is not an identification.

[00:21:34] Speaker 04:
It's still that comparison.

[00:21:35] Speaker 04:
It's still just evidence.

[00:21:37] Speaker 04:
It's just pointing out those details and how those details link up in an investigation.

[00:21:42] Speaker 03:
This is not— Sorry.

[00:21:43] Speaker 03:
In Jarob, I'm looking at it.

[00:21:44] Speaker 03:
It says, the narratives helped the jury understand what they were seeing.

[00:21:49] Speaker 03:
For example, Frazier provided the length of time lapses between video clips.

[00:21:53] Speaker 03:
He pointed out unique characteristics of the vehicles, like their makes, models, and whether any bodywork had been done to them, that helped the jury identify the same cars in subsequent videos.

[00:22:08] Speaker 03:
I don't see that it says that he was saying that it's the same car as in the subsequent video.

[00:22:16] Speaker 03:
Am I missing something?

[00:22:18] Speaker 03:
Is that part of what was done in Taralba?

[00:22:22] Speaker 04:
What we are relying on in Turaba is the next sentence.

[00:22:24] Speaker 04:
This is at page 660.

[00:22:26] Speaker 04:
He linked the different cars to specific conspirators.

[00:22:31] Speaker 04:
Here, what Detective Dorsey did, sorry, excuse me, Defendant Dorsey, Detective Marston, excuse me, a lot of D's, did was link shoes that he was seeing in these videos.

[00:22:45] Speaker 02:
Well, it strikes me that the analogy there would be that there is an idea of a car in this case, and that Detective Marsden would say, we have other evidence that has linked this car.

[00:22:57] Speaker 02:
This was Dorsey's car.

[00:22:59] Speaker 02:
And now, outside this gas station, that's also Dorsey's car.

[00:23:04] Speaker 02:
That seems to be one analogy.

[00:23:06] Speaker 02:
But here, it is just his perception of looking at the shoe, which is usually something we leave to the jury.

[00:23:13] Speaker 04:
But it's a perception based on extensively reviewing these videos.

[00:23:17] Speaker 04:
It's extensively reviewing.

[00:23:19] Speaker 02:
Extensively reviewing a blurry shoe that I think you'd said maybe has a white line, maybe doesn't.

[00:23:25] Speaker 04:
Well, yes.

[00:23:25] Speaker 04:
But he not only reviewed for the shoe, he reviewed for the fact that Mr. Bailey was bald, that Mr. Bailey was wearing glasses, that they were wearing black hoodies in every robbery.

[00:23:35] Speaker 04:
I mean, there were 36 videos that we at least submitted to the court.

[00:23:38] Speaker 02:
Why can't the jury decide that?

[00:23:41] Speaker 02:
And I guess even if there's all this other evidence, shouldn't we take into account the fact that it was a mistrial with all this evidence when Detective Marsden didn't provide those narratives?

[00:23:52] Speaker 04:
So on the mistrial, I do want to point out, and I noticed this in preparing for the argument, in the first trial, defendant Dorsey did not testify.

[00:24:00] Speaker 04:
In the second trial, he did.

[00:24:01] Speaker 04:
And if you look at the jury notes in relation to the first trial, you can see that the jury was struggling with different issues there.

[00:24:08] Speaker 04:
And one of the jury notes in that first trial was whether or not they can infer a negative inference from the lack of character or alibi evidence.

[00:24:18] Speaker 04:
And it appears that Dorsey sought to meet that jury note in the second trial where he not only testified, but he put forward several character and alibi witnesses.

[00:24:29] Speaker 04:
And so I think to

[00:24:31] Speaker 04:
To Judge Thomas's point earlier about Marsh and Pigayo, it is easier in those cases where you have that hung jury analysis for harmlessness to isolate the more problematic testimony.

[00:24:43] Speaker 04:
Here, if you take a comparison of the first and second trials, they are different.

[00:24:48] Speaker 04:
There was a different presentation of evidence.

[00:24:50] Speaker 04:
There also was a different robbery in the first trial that was not charged in the second trial.

[00:24:55] Speaker 04:
And in the first trial, there were similar instances of Marsden's testimony.

[00:25:00] Speaker 04:
I'll bet it was not as the same as the second trial, but in the first trial, there was an instance where Marsden did testify about how he noticed the shorter robber missing a ring finger after reviewing the robbery footage.

[00:25:14] Speaker 04:
Plus, of course, as this court knows, the harmless error analysis, there's more factors for the court to consider, and it could look at the wide variety of evidence that was corroborating Morrison's testimony.

[00:25:25] Speaker 04:
That not only includes, of course, the videos itself, and I would just point the court to the fact that the jury themselves were heeding the instructions from the trial court and asked to view the videos again.

[00:25:36] Speaker 04:
And so there was not this blind acceptance of Detective Morrison's testimony.

[00:25:41] Speaker 04:
They specifically asked to watch videos from two of the robberies.

[00:25:45] Speaker 04:
In addition to that, we have a plethora of other evidence corroborating the detective's testimony, including the fact that there was the Nissan Altima that was seen at the robbery of an Arco and that that

[00:25:59] Speaker 04:
Altima was traced back to Dorsey that Dorsey admitted in a post Miranda interview that he was driving that car during the robbery spree.

[00:26:10] Speaker 04:
We also have the fact that the time of the robbers during the time of the robbery spree.

[00:26:14] Speaker 04:
Yes, your honor.

[00:26:15] Speaker 04:
And he was also seen driving that car.

[00:26:19] Speaker 04:
You also have the fact that Dorsey was connected to the gun itself.

[00:26:22] Speaker 04:
There was ammunition that was found in a trunk of his car that the government put on testimony that that type of ammunition would fit the cowboy gun that was seen throughout the robberies.

[00:26:33] Speaker 04:
You also have the cell phone records.

[00:26:35] Speaker 04:
The cell phone records, they had similar patterns.

[00:26:39] Speaker 04:
There was no phone activity during the actual robberies.

[00:26:43] Speaker 04:
For some of the robberies, the phones pinged near the crime.

[00:26:46] Speaker 04:
For example, for the Earlemont gas station, which is a city, as I understand it, between Bakersfield and Fresno.

[00:26:53] Speaker 04:
And you have an example where Bailey's phone was pinging 46 miles from the Earlemont gas station, 46 minutes after the robbery.

[00:27:02] Speaker 04:
And of course, you also have the evidence that both of the phones were stopped and were no longer used two days after the Citibank robbery at the same time.

[00:27:12] Speaker 04:
And of course, just the last bit, there were constant instructions on how to view Marsden's testimony.

[00:27:20] Speaker 04:
The jury looked at the videos themselves, and then the government did not mention it in closing.

[00:27:25] Speaker 04:
So under that holistic harmlessness error analysis, the record provides a fair assurance that if there was any error, the jury was not substantially swayed by it.

[00:27:35] Speaker 04:
So I'm down to about a minute.

[00:27:36] Speaker 04:
If the court has questions about the LA Times article, I'm happy to answer them.

[00:27:40] Speaker 04:
Okay, if the government will submit audience papers and ask that the court affirm the conviction and the sentence in this case.

[00:27:45] Speaker 04:
Thank you.

[00:27:46] Speaker 03:
All right, thank you, counsel.

[00:27:48] Speaker 03:
We'll hear rebuttal from Mr. Tanaka.

[00:27:55] Speaker 01:
On the issue of harmless air, I think it's important to put it in context in that the determination is that government bears the burden of showing it's more probable than not the jury would have reached the same result if the evidence had not been presented.

[00:28:09] Speaker 01:
On that burden, then the mistrial takes, first mistrial takes on added importance because it's sort of like a controlled experiment in the sense that the first trial of this evidence wasn't presented, the second trial it was, and there's a conviction.

[00:28:25] Speaker 01:
Now the government points to all this other evidence and added fact that Dorsey testified.

[00:28:30] Speaker 01:
Well, that could be true, but most of that evidence was already in the first trial, all that incriminating evidence that the government alleges.

[00:28:40] Speaker 01:
And then, if you add in Dorsey's testifying, maybe it's a wash.

[00:28:45] Speaker 01:
They bear the burden.

[00:28:46] Speaker 01:
I submit that they have not met that burden.

[00:28:55] Speaker 01:
Now, Judge Collins asked a question about what that meant in the reply brief, and I agree there are three categories.

[00:29:03] Speaker 01:
And the only category that I meant, and I think I did, but I'll have to go back and look at it, to concede there is that the narration was proper.

[00:29:15] Speaker 01:
It's the comparisons and the identity that were improper.

[00:29:19] Speaker 01:
That's for the simple reason because that's the jury's province.

[00:29:24] Speaker 01:
you know, our system of criminal justice, we put the evidence up and we let the jury decide.

[00:29:30] Speaker 01:
We don't put a thumb on it by having the investigating officer, the case agent, go through the narration and tell us, tell the jury what he thinks the evidence shows.

[00:29:40] Speaker 01:
That was for the jury.

[00:29:42] Speaker 01:
And I urge you reverse.

[00:29:44] Speaker 03:
All right.

[00:29:45] Speaker 03:
Thank you, counsel.

[00:29:47] Speaker 03:
and counsel for the helpful arguments in that case, and the case of U.S.

[00:29:53] Speaker 03:
v. Dominic Dorsey is submitted for decision.