[00:00:00] Speaker 01: Good morning, Your Honors. [00:00:02] Speaker 01: May it please the Court. [00:00:05] Speaker 01: Michael Bresnahan representing Emmett McGill. [00:00:09] Speaker 01: It's our position set forth in our brief that, and let me stop myself, I'd like to reserve three or four minutes possible. [00:00:20] Speaker 01: It's our position the Court must reverse if it finds insufficient evidence in either trial, and that's a point of contention here whether [00:00:30] Speaker 01: Under US v. Bodie, this court can take a look at the evidence, the insufficiency claim as to the first trial. [00:00:40] Speaker 01: US v. Bodie did precede Richardson, but Richardson aside for a moment, it looks as though Bodie is the law of the circuit, again, unless Richardson or some other case abrogated Bodie. [00:00:57] Speaker 01: Bode filed a section 2255 motion after Burks. [00:01:02] Speaker 01: The defendant argued there was insufficient evidence in the first two trials. [00:01:06] Speaker 01: Citing Burks, this court reversed the conviction in the second trial on double jeopardy grounds, finding evidence [00:01:13] Speaker 01: the evidence insufficient in the first trial. [00:01:16] Speaker 02: Can you clarify for me what your position is or how you believe that the district court abused its discretion in limiting the scope of the defense examination of Zachary Justin with regards to the polygraph? [00:01:33] Speaker 02: Could you explain that? [00:01:35] Speaker 01: I don't have that much detail in my [00:01:39] Speaker 01: in my brief, and I don't because I didn't think that that really went to the issue that's before the court today. [00:01:46] Speaker 01: I thought the broader holding in Bode really got to the heart of what we're trying to get to today, and that is whether this court can do a look back to the first two trials after the second trial has concluded. [00:02:05] Speaker 03: Okay, that question is very important to me. [00:02:08] Speaker 03: So you're saying your observation, your position that there was a 403 error excluding the polyglot related statements is not a point that you're pressing? [00:02:20] Speaker 03: You're pressing just your insufficiency point as to trial one and trial two? [00:02:25] Speaker 01: Yes, today, that's what we're attempting. [00:02:28] Speaker 03: Well, when you say today, that could be conclusive of an issue. [00:02:34] Speaker 01: Right. [00:02:35] Speaker 01: I'm simply arguing that under the broader holding through this court, the Court of Appeals in Bodie, the Court of Appeals was allowed to look back to the first, for the sufficiency of evidence in the first trial. [00:02:57] Speaker 03: Okay, so you're pressing the sufficiency points. [00:03:00] Speaker 03: The question is, are you surrendering also the secondary argument as to it was reversible error for the district court to confine the nature of cross-examination of the hostile witness, Justin? [00:03:17] Speaker 03: That's something you haven't come prepared to discuss. [00:03:19] Speaker 01: Yes. [00:03:21] Speaker 01: I haven't come prepared to discuss. [00:03:23] Speaker 01: I guess I'm not in a position to concede anything, having not focused on that in preparation. [00:03:30] Speaker 03: Well, briefly on the sufficiency, if you don't mind, you've read Richardson. [00:03:36] Speaker 03: Yes. [00:03:36] Speaker 03: And you've read Justice Stevens' dissent. [00:03:39] Speaker 01: Yes. [00:03:39] Speaker 03: And Justice Stevens's dissent seems to say that the majority has foreclosed the review of the first trial. [00:03:48] Speaker 03: Yes or no? [00:03:50] Speaker 01: It seems to be pointing in that direction. [00:03:53] Speaker 03: Why does it matter to you? [00:03:55] Speaker 03: Because in both cases, the victim testified and accused your client. [00:04:00] Speaker 03: And in both cases, Detective Rivers testified and said that your client had said he didn't have any sexual relationship with her, and yet then it turns out he fathered AH. [00:04:11] Speaker 03: So you've got a victim statement and you've got a false exculpatory. [00:04:16] Speaker 03: In either trial, why wouldn't that be sufficient to support the verdict? [00:04:20] Speaker 01: Well, now we're focusing on the sufficiency of the evidence. [00:04:24] Speaker 03: Well, I'm a little misunderstanding where you're going with the entire argument, but I thought that's what you were saying, that you are prepared to discuss, sufficiency as to either the first trial or the second trial. [00:04:36] Speaker 01: Oh, yes. [00:04:36] Speaker 03: And my question is, the incriminating points that would, to me, justify a verdict were identical in both trials. [00:04:45] Speaker 03: So it doesn't really matter. [00:04:46] Speaker 03: I'm skeptical that after Richardson, the argument can be made. [00:04:51] Speaker 01: Well, our position with respect to the impact of Richardson on Bodie is that Richardson held that the defendant is not entitled to appellate interlocutory review because jeopardy had not terminated after the first trial. [00:05:11] Speaker 01: And our position under Bodie [00:05:17] Speaker 01: This court may look back because the second trial concluded, and jeopardy has terminated at that point, and there can be a look back. [00:05:31] Speaker 01: I don't think Richardson foreclosed that outcome. [00:05:35] Speaker 01: In other words, I don't think it abrogated Bode in any way. [00:05:40] Speaker 01: In fact, there was some language in Richardson [00:05:44] Speaker 03: I guess what I was asking is just what do you, what does it even, how does it assist you? [00:05:50] Speaker 01: To look back at the first trials? [00:05:52] Speaker 03: If the same major points of incriminating testimony came in in both, why would we come to a different outcome? [00:05:58] Speaker 01: Well, they are two trials. [00:06:00] Speaker 01: The evidence was not identical in the trials. [00:06:02] Speaker 03: But I describe what I see as the most salient incriminating points that would justify verdict. [00:06:08] Speaker 03: Do you dispute either of those pieces of evidence having come in at both trials? [00:06:15] Speaker 01: Well, maybe I should answer it this way. [00:06:17] Speaker 01: One of the big differences between the first and second trial was the admission of the statement by Mr. Justin, where he... Yes, we're very familiar, but that's the issue that you seem to be capitulating slightly. [00:06:35] Speaker 03: In the first trial, you were able to cross-examine, and it was a devastating and closing argument that he had equivocated about her credibility. [00:06:44] Speaker 03: But then in the second trial, that was, I mean, according to how I had read the briefs, that was not permitted. [00:06:52] Speaker 01: Correct. [00:06:53] Speaker 01: Correct. [00:06:53] Speaker 01: So that's one of the important differences. [00:06:55] Speaker 01: I think the first trial was probably weaker than the second trial because of the admission of that statement. [00:07:04] Speaker 01: The person closest to Ms. [00:07:06] Speaker 01: Hugo had some serious doubts about her veracity. [00:07:11] Speaker 01: even asked for a polygraph test. [00:07:14] Speaker 01: I think the jury probably had some real issues with that based upon statements made by the government in its motion in Lemony before the second trial. [00:07:26] Speaker 01: And I thought that that differentiates the two trials. [00:07:32] Speaker 01: And on the other hand, in the second trial, we had the testimony of the government's expert, I think it's Ms. [00:07:38] Speaker 01: Hale or Heil, [00:07:41] Speaker 01: which sort of cut both ways. [00:07:43] Speaker 03: She wasn't in the first trial, but... So what you're saying is the big difference between the first and the second is you were able to impeach somebody in the first, you weren't in the second. [00:07:52] Speaker 03: That sounds less like a sufficiency argument to me than why is it that you weren't in the second trial? [00:07:59] Speaker 03: Did you preserve a cross-confrontation clause argument to that exclusion, or is it a straight 403 argument? [00:08:06] Speaker 01: Well, I didn't try the case, but looking at the record, [00:08:11] Speaker 01: I thought it was both, although... Preserve, preserve, that's my question. [00:08:17] Speaker 01: Right, right. [00:08:17] Speaker 03: Did you allege, Your Honor, you have to allow us to cross-examine based on the polygraph related statements, because if you don't, it violates my client's confrontation clause rights. [00:08:27] Speaker 03: Did you preserve that? [00:08:30] Speaker 01: The trial attorney did not [00:08:32] Speaker 01: cite chapter and verse of the constitutional provision, you're correct. [00:08:37] Speaker 01: But he did argue he had the right, in so many words, he had the right to cross-examine what had become an adverse witness at that point in time. [00:08:47] Speaker 01: And I believe the constitutional provision, the relevant constitutional provision is out there. [00:08:54] Speaker 01: As I stand here, I'm taking the position that you don't have to cite chapter and verse, all you have to say [00:09:01] Speaker 01: is that I have a right to cross-examine this person. [00:09:05] Speaker 01: Implicit in that objection could be two things. [00:09:09] Speaker 01: It could be a rule of evidence-based objection. [00:09:16] Speaker 01: It could be a constitutionally-based objection. [00:09:20] Speaker 01: Anyone looking at that, though, even though the magic words were not uttered, would see immediately that there's a confrontation clause issue. [00:09:32] Speaker 03: Remember, you remember pretty well the direct examination of Justin, the cross by the government, then the redirect? [00:09:39] Speaker 01: Fairly well, yeah. [00:09:40] Speaker 03: So on redirect, the defense was able to elicit from him, not reference to the word polygraph, but it was able to elicit that maybe his doubts were specific to, I quote, relationship gone bad. [00:09:55] Speaker 03: Is that correct or not? [00:09:56] Speaker 01: Yes, but I think that the polygraph comment was so powerful. [00:10:01] Speaker 01: It probably influenced the hung jury in the first trial. [00:10:07] Speaker 01: It should have been allowed in the second trial. [00:10:09] Speaker 01: There's nothing magical about the word polygraph. [00:10:12] Speaker 00: But that's the rule 403 issue that Judge Higginson asked about earlier and that is of some interest to us. [00:10:21] Speaker 00: So the question is, have you forfeited that argument because it's nowhere in your opening brief and today you're not prepared to discuss it? [00:10:30] Speaker 01: I may have misunderstood the question. [00:10:32] Speaker 01: No, we haven't. [00:10:33] Speaker 01: Well, it may be plain error review at this point in time. [00:10:39] Speaker 01: Actually, I don't think it would be plain error review because he did, in fact, object. [00:10:44] Speaker 01: He objected orally before the second trial to the motion in Lemony, and he gave his reasons. [00:10:52] Speaker 01: He renewed that objection just before- My question is, have you forfeited the argument? [00:10:58] Speaker 00: Because it is not in your opening brief, and it is not- the question is whether we can consider this issue at all today, given your position. [00:11:07] Speaker 00: Not what happened at the trial. [00:11:11] Speaker 02: Is it that you're not focusing it on today, or is it you're forfeiting it? [00:11:15] Speaker 02: That's the question. [00:11:17] Speaker 01: Well, we're not forfeiting the issue, and I guess I'm confused. [00:11:20] Speaker 00: Why isn't it forfeited, given that it was not addressed at all in your opening brief? [00:11:26] Speaker 01: Could you help me understand precisely what issue that you feel I'm forfeiting? [00:11:31] Speaker 01: Because I believe we did address this issue. [00:11:35] Speaker 01: You're talking about the polygraph issue, the word polygraph in the second trial. [00:11:40] Speaker 00: The merits of the Rule 403 issue. [00:11:42] Speaker 00: Right. [00:11:44] Speaker 01: I thought we did address it. [00:11:49] Speaker 01: We pointed out the objection, the failure to grant the admission of the evidence. [00:11:59] Speaker 01: Is the court saying that I didn't mention the word 403? [00:12:07] Speaker 01: We certainly, we brought the constitutional argument. [00:12:09] Speaker 03: Well, you're picking your issues to argue to us as to why there's a reversible error. [00:12:13] Speaker 03: And you, at the outset, maybe I wasn't clear, you focused on your sufficiency arguments and the Richardson argument. [00:12:20] Speaker 03: And that's what led me to ask you, what about the motion in Lemonay and the exclusion of polygraph-related statements? [00:12:28] Speaker 03: And there are different ways to approach that. [00:12:31] Speaker 03: One is the confrontation clause. [00:12:33] Speaker 03: That wasn't preserved below, but it was in your principal brief. [00:12:37] Speaker 03: Of course, 403 and hearsay came up, and those were preserved below, but then they weren't in your principal brief. [00:12:45] Speaker 03: The government did raise the issue, and then you responded in your reply brief. [00:12:50] Speaker 03: So we need you to tell us what arguments you think are the ones you are urging us to reverse on and what ones you aren't. [00:12:59] Speaker 01: Well, our position is that the polygraph statement was not hearsay. [00:13:07] Speaker 01: The cross-examination was to a prior inconsistent statement. [00:13:13] Speaker 01: It was impeachment to address Mr. Justin's attempt to walk back his many stories statement. [00:13:24] Speaker 01: heard many stories, he tried to walk that back. [00:13:27] Speaker 02: So you're trying to preserve that, is that what you're saying, even though you didn't argue that in your brief? [00:13:36] Speaker 01: Yes, of course. [00:13:37] Speaker 01: Of course I would want to preserve that. [00:13:40] Speaker 02: On what basis should we consider that at this point? [00:13:44] Speaker 02: And not consider it waived? [00:13:46] Speaker 01: Well, again, I thought I did preserve it in the brief. [00:13:51] Speaker 01: And obviously, the panel feels otherwise. [00:13:53] Speaker 01: But I did raise the issue that I did allude to the rules of evidence, I believe. [00:14:06] Speaker 01: I don't recall citing Rule 403, but I did allude to the rules of evidence. [00:14:12] Speaker 01: And I also alluded to the Constitution. [00:14:13] Speaker 03: And that's the district court's basis for its ruling was a Scheffer-type view that any reference to polygraphs, which are unreliable, would confuse a jury. [00:14:22] Speaker 03: So I guess, do you have any Ninth Circuit law that reverses as to improper 403 decisions generally? [00:14:32] Speaker 03: Can you give us your best case where we have reversed a district court's determination that something's too confusing for a jury? [00:14:40] Speaker 01: No, I can't cite a case directly to that point, but I got the impression the judge was simply improperly focused on the word polygraph without giving it context. [00:14:55] Speaker 03: Maybe so, but you are asking us to reverse, and you don't have a Ninth Circuit case. [00:15:01] Speaker 03: Reversing a District Guards 403 determination ever, none comes to mind. [00:15:05] Speaker 03: None comes to mind, no. [00:15:09] Speaker 01: Shall I proceed? [00:15:17] Speaker 01: So it's our view that the court can look back at both trials for insufficiency. [00:15:24] Speaker 01: I realize that on review, the rules of review all favor the government and the jury's verdict, so it's a steep hill to climb. [00:15:34] Speaker 01: It's our position that Ms. [00:15:36] Speaker 01: Hugo's accounts of the alleged incident were uncorroborated, inconsistent, objectively implausible, and that no rational juror could have found guilt under the circumstances. [00:15:46] Speaker 01: It's our position that a rational juror would have found Ms. [00:15:49] Speaker 01: Hugo's accounts of the incident were internally inconsistent in important respects in both trials, and I laid that out in detail in the brief. [00:15:59] Speaker 01: A rational juror would have found some of her allegations objectively implausible. [00:16:04] Speaker 01: I laid those out as well. [00:16:07] Speaker 01: There was DNA evidence, but our position is that the DNA evidence at most proved some sort of sexual liaison or contact. [00:16:18] Speaker 01: It certainly did not prove rape. [00:16:21] Speaker 01: It's our position that a rational juror would have expected Ms. [00:16:24] Speaker 01: Hugo to tell somebody what happened. [00:16:27] Speaker 01: including her cousin and brother minutes after it happened, after this allegedly traumatic incident happened, security at the dance, other family members, the police, her prenatal medical providers, her cousin months afterwards when discussing Miguel. [00:16:46] Speaker 01: She didn't want to report the incident. [00:16:48] Speaker 01: She was angry at Mr. Justin for making her call the police. [00:16:53] Speaker 01: These are all powerful reasons for a rational juror to reject this whole idea that there was a dance and a sexual assault occurred at the dance. [00:17:03] Speaker 01: And I did give some reasons for the court to consider that I thought jurors, a rational juror, wouldn't naturally consider [00:17:10] Speaker 01: why she would tell this tale. [00:17:12] Speaker 01: There's because of in light of her relationship with Mr. Justin. [00:17:16] Speaker 02: Council you wanted to save some time. [00:17:18] Speaker 02: Do you want to save the rest of your time? [00:17:24] Speaker 02: You can keep on going. [00:17:25] Speaker 02: I'm just saying that you had requested. [00:17:27] Speaker 02: Thank you. [00:17:35] Speaker 01: Let me just jump. [00:17:36] Speaker 01: Let me just spend a minute on the sentencing. [00:17:41] Speaker 01: One of the problems was that the judge's lack of any explanation of why she imposed the supervised release, the sexual conditions of supervised release. [00:17:58] Speaker 01: I think she had to do more than simply jump to that [00:18:03] Speaker 01: based on a recommendation from the probation department because of the alleged act itself. [00:18:13] Speaker 01: Placing my client on lifetime supervised release with sexual terms meant several of them having to do with my client's ability to or [00:18:28] Speaker 01: authority to circulate among younger children without, I guess, contact the probation officer. [00:18:36] Speaker 01: I think that deserved an explanation from the judge, because that's a pretty big deal when somebody gets out. [00:18:43] Speaker 01: It affects their job. [00:18:45] Speaker 01: It may affect their social contacts. [00:18:48] Speaker 01: It's going to affect their life in a big way. [00:18:50] Speaker 01: And there just was no explanation whatsoever for that. [00:18:55] Speaker 01: And I thought that was something that the court should certainly consider. [00:18:59] Speaker 01: I will save a minute. [00:19:02] Speaker 01: Thank you. [00:19:03] Speaker 01: Very well. [00:19:16] Speaker 02: Good morning. [00:19:17] Speaker 04: Good morning, Your Honors. [00:19:18] Speaker 04: May it please the court? [00:19:19] Speaker 04: Alana Kennedy for the United States. [00:19:22] Speaker 04: I wanted to start by addressing the confrontation clause issues that the panel raised earlier with my counterpart. [00:19:29] Speaker 04: It's our view that the standard of review here is for plain error. [00:19:33] Speaker 04: Miguel did not make a specific confrontation clause objection before the district court. [00:19:41] Speaker 04: And the case law, and specifically the Inekwu case, require [00:19:46] Speaker 04: that such an objection needs to be timely and specific. [00:19:51] Speaker 04: And neither of those things occurred here, so we would ask the panel to apply plain error review. [00:19:58] Speaker 04: In evaluating the restrictions on cross-examination, which in this case, Mr. Justin was not the government's witness. [00:20:08] Speaker 04: He was not subject to cross-examination during the second trial. [00:20:12] Speaker 04: He was called by the defense. [00:20:14] Speaker 04: But generally, for those types of restrictions that a district court might place in the context of cross-examination, the court looks to the relevance of the excluded evidence, the interest justifying the exclusion, and whether there is still sufficient information for the jury to consider the credibility of the witness testifying. [00:20:36] Speaker 03: He was the government's witness in the first trial. [00:20:38] Speaker 04: That's correct. [00:20:39] Speaker 03: And then you file a motion in Lemonay to prevent any 607 use of him as a hostile witness, at least if it were to reach into the polygraph related statements. [00:20:50] Speaker 03: Is that a fair statement? [00:20:51] Speaker 03: There was the government's motion in Lemonay requesting limited ability to 607 cross-examination a witness they might call, correct? [00:21:00] Speaker 04: I don't know that we cited rule 607, but that is the essence of the government's motion in Lemonay during the second trial. [00:21:06] Speaker 04: And the reason why the government filed that motion in Lemonay was because the defense attorney had posed a question to the victim during the first trial where he asked her [00:21:17] Speaker 04: About mr. Justin statement quote do you guys do polygraph tests unquote and that was something that the victim was not party to it was an invisible hearsay statement that should not have been asked and it was as a result of him asking that statement of the victim the government was forced to put mr. Justin on the stand during the first trial to explain the context and [00:21:41] Speaker 04: of why that statement was asked. [00:21:42] Speaker 03: But you're not persisting with the argument that that would be hearsay? [00:21:45] Speaker 03: A question to a police officer? [00:21:48] Speaker 03: Do you do polygraphs? [00:21:49] Speaker 03: There's nothing, no truth being asserted. [00:21:51] Speaker 03: There wasn't even a test done. [00:21:53] Speaker 03: How would that be hearsay? [00:21:54] Speaker 04: During the second trial, Your Honor, that was exactly why the defense counsel wanted to put Mr. Justin on the stand. [00:22:02] Speaker 04: That's demonstrated in how he proceeded during the first trial and his arguments [00:22:07] Speaker 04: um, during the final pretrial conference regarding the motion and eliminate and at sidebar. [00:22:12] Speaker 03: So he wanted to put the statement, but he wanted to handle the first trial and it led to a hung jury and it was a substantial portion of his closing argument. [00:22:22] Speaker 03: the government's witness had been devastatingly crossed. [00:22:26] Speaker 03: So of course he wants that same evidence in. [00:22:29] Speaker 03: It's the government's position that the district court properly excluded that evidence. [00:22:33] Speaker 03: And are you saying it's because it was hearsay? [00:22:35] Speaker 03: Or are you saying because it was a 403 exclusion? [00:22:39] Speaker 04: Because it was improper impeachment, it was hearsay, and it was subject to rule 403. [00:22:46] Speaker 03: And my question is, how could it possibly be hearsay? [00:22:50] Speaker 04: Because it was offered. [00:22:51] Speaker 03: What's being offered for the truth? [00:22:55] Speaker 04: The line across examination, or in this case, the direct examination, was the victim's credibility. [00:23:01] Speaker 04: And so that statement was offered for the truth of the matter of the victim's credibility. [00:23:06] Speaker 04: So it was a roundabout way to get to improper impeachment. [00:23:11] Speaker 03: OK, I'm lost by that answer. [00:23:13] Speaker 03: I thought the district court said, this is confusing. [00:23:16] Speaker 03: Anything related to polygraph is confusing because clearly the district court allowed in and the government didn't object to the statements about, well, I heard it on TV and the other stories. [00:23:28] Speaker 03: That would be even more hearsay under this logic. [00:23:32] Speaker 04: That's correct. [00:23:34] Speaker 03: Okay, go ahead. [00:23:35] Speaker 04: I'm sorry, Your Honor, I didn't mean to cut you off. [00:23:37] Speaker 04: The court is correct. [00:23:38] Speaker 04: The court precluded the polygraph statement specifically for [00:23:41] Speaker 04: Rule 403 considerations regarding the inconsistent stories and a relationship gone bad statements. [00:23:51] Speaker 04: The government did not seek to exclude those statements and the district court obviously allowed those and there was ample examination of Zachary Justin regarding those statements during the second trial. [00:24:04] Speaker 03: But I mean, obviously, what happens here, correct me if I'm wrong, is Justin asks to speak to the officers separately. [00:24:11] Speaker 03: And then Justin says to them, do you guys do polygraphs? [00:24:16] Speaker 03: Says it twice. [00:24:18] Speaker 03: And then Justin adds, you should probably do one. [00:24:23] Speaker 03: But then when he's in the second trial, unlike in the first, he's saying that the victim here has been consistent throughout [00:24:32] Speaker 03: Her accusation of rape against Miguel is consistent, and they want to get in, but you said to the police officers you should probably do one. [00:24:43] Speaker 03: That seems like devastating, appropriate, prior inconsistent statement testimony. [00:24:50] Speaker 04: Your Honor, I respectfully disagree. [00:24:52] Speaker 04: During the first trial, Zachary Justin explained extensively what he was asking about in the context of that conversation with the officer. [00:25:02] Speaker 04: He explained that he was not talking about his view of the victim's credibility. [00:25:08] Speaker 04: And in fact, he testified that in his view, she is a truthful person. [00:25:12] Speaker 04: When he was asking those questions of the officer, he was talking about sexual assault investigations generally. [00:25:20] Speaker 04: And his experience with having friends and family members on the Gila River Indian community [00:25:25] Speaker 04: who had gone through certain things similar to this, and that it was a big issue in the community, and he was concerned about what these types of investigations might look like. [00:25:36] Speaker 04: So the first trial testimony actually explains the reasoning behind all of that. [00:25:42] Speaker 03: But then the jury hangs. [00:25:43] Speaker 03: They didn't interpret it the way you've just described it. [00:25:47] Speaker 04: Well, Your Honor, that's not in the record as to why that was your motion in limine. [00:25:51] Speaker 03: You described that in the motion in limine as the reason you said this jury was confused by that whole exchange and then the government chooses not to call Justin. [00:26:01] Speaker 04: I believe the government statement in the motion in Lumine was something to the jury admitted to spending some time on the polygraph statement. [00:26:08] Speaker 04: There were other things discussed that are not in the record before the court, but certainly that statement that the jury communicated to counsel after the first trial that the word polygraph was discussed was enough for the government to file the motion in Lumine and had [00:26:26] Speaker 04: the government known that Mr. Hall, who was the defense attorney before the district court, would attempt to improperly ask the victim about that statement during the first trial, we would have obviously filed a motion and eliminate there as well. [00:26:41] Speaker 00: We find that the district court abused its discretion in excluding the polygraph, then the government has the burden to show harmlessness. [00:26:47] Speaker 00: How do you show harmlessness? [00:26:49] Speaker 04: If if it is abuse of discretion your honor the error was clearly harmless because Defense counsel was able to extensively cross-examine both mr. Justin and the victim about credibility That was obviously a focal point of the defense case They asked not on that topic though, right? [00:27:11] Speaker 04: Not on the word polygraph specifically, but on inconsistent stories and relationship gone bad. [00:27:17] Speaker 04: So the district court judges allowance of all of those broader topics really preserved the ability of the defense theory of their case and the ability to delve into the credibility issues that were a heart of their defense. [00:27:32] Speaker 03: No, no, I do have more questions. [00:27:35] Speaker 03: Because here it looks to me, disagree, that the government not only excludes what it was that caused the jury to have doubt in the first case, devastating impeachment of the man who reported the crime and then who vouched for it, but then when the government, in cross-examination of Justin, [00:27:57] Speaker 03: The government, because it's obtained the block on the polygraph relating statements, the government then elicits from him that it's just everything he said was about the TV and what he saw on the TV. [00:28:08] Speaker 03: It had nothing to do with her. [00:28:09] Speaker 03: So it's not just that evidence was excluded, but it's that the government then sort of relies on exactly the theory that could only be contradicted if you were to allow a cross. [00:28:20] Speaker 04: I respectfully disagree, Your Honor. [00:28:22] Speaker 04: I think that all of that information the government elicited on Cross went to explanations about why Zachary Justin made comments about different stories and relationship gone bad. [00:28:36] Speaker 04: And so all of that information that was elicited was his explanation and context for that wider conversation. [00:28:44] Speaker 04: And when Zachary Justin was interviewed, [00:28:47] Speaker 04: when he was present for the end of the interview of the victim and then made those statements to law enforcement, it was kind of towards the end of a recording and there was a lot of wind sounds in the background. [00:28:59] Speaker 04: And so there just isn't really additional context there for what other information might have been discussed or what other words would have been said. [00:29:11] Speaker 04: So his explanation on the stand about why [00:29:14] Speaker 04: what he meant by inconsistent statements and hearing different stories was extremely [00:29:20] Speaker 04: important. [00:29:20] Speaker 02: Can you spend a second just, again, confusingly today, your friend on the other side may have been conceding some things, not argued certain things. [00:29:33] Speaker 02: I guess I want to get your perspective. [00:29:36] Speaker 02: Were arguments waived, at least with regards to the polygraph, and or not preserved for appeal purposes on this whole notion of Zachary Justin and the polygraph? [00:29:49] Speaker 04: I think with respect to the panel's concern that the Rule 403 issue was waived, we would agree that- But you addressed the 403 issue in your response. [00:30:00] Speaker 00: So even if it was not raised in the opening brief, the government discussed the issue in its response. [00:30:07] Speaker 00: So then shouldn't we just assume that it's not forfeited? [00:30:10] Speaker 02: In other words, why are you prejudiced? [00:30:13] Speaker 04: I'm sorry. [00:30:14] Speaker 04: Would you mind repeating that? [00:30:16] Speaker 02: Why are you prejudiced if you raised it in your brief? [00:30:20] Speaker 02: You argued it. [00:30:22] Speaker 04: Well, Your Honor, because defense counsel, or excuse me, petitioner argued that there was a confrontation clause violation and that the statements should have been admitted. [00:30:33] Speaker 04: And even in considering the confrontation clause, those statements are still subject to a Rule 403 analysis. [00:30:42] Speaker 04: So even if the court does not deem those issues waived, [00:30:46] Speaker 04: They were properly excluded under Rule 403 because of the issues of confusing the jury. [00:30:52] Speaker 04: And really, the probative value was substantially outweighed by the risk of unfair prejudice. [00:30:58] Speaker 04: Unless the court has additional questions on. [00:31:01] Speaker 03: I mean, you do still have a little more time. [00:31:03] Speaker 03: So I appreciate that you did brief it. [00:31:05] Speaker 03: And therefore, we have full briefing on the issue. [00:31:08] Speaker 03: But what if Justin had walked out with the police officers and said, could you remind her that perjury is a crime? [00:31:18] Speaker 03: Is there any way that the government would be arguing that the jury can't hear that as impeachment of Justin? [00:31:24] Speaker 04: No, Your Honor. [00:31:25] Speaker 04: That would be entirely appropriate. [00:31:26] Speaker 04: But to first argue it as impeachment, the witness has to make an inconsistent statement. [00:31:31] Speaker 03: But they did put Justin on. [00:31:33] Speaker 03: And you're not contesting that they had the right to do that under 607. [00:31:36] Speaker 04: Correct. [00:31:37] Speaker 03: So he's an appropriate witness. [00:31:40] Speaker 03: And then when indirect, he becomes hostile and says her stories have been consistent to the extent I talked about other stories. [00:31:46] Speaker 03: It was stuff on TV. [00:31:48] Speaker 03: At that point, wouldn't it be crucial for them to say, well, wait a minute, Justin, didn't you tell the police you should tell her that perjury is a crime? [00:31:59] Speaker 03: That would be devastating impeachment. [00:32:02] Speaker 03: But I don't see how it's different than this statement. [00:32:05] Speaker 04: I think it's distinguishable, Your Honor, because in the hypothetical that you posed, there would be conclusive evidence that he, in fact, did not think that she was a truthful person, and it [00:32:17] Speaker 04: calls into question her credibility, which is a crux of the government's case. [00:32:22] Speaker 04: The general question of, do you guys do polygraphs? [00:32:25] Speaker 03: You do focus on that, but then he followed up, or am I wrong? [00:32:28] Speaker 03: You should probably do one. [00:32:31] Speaker 03: It's not, do you do polygraphs? [00:32:33] Speaker 03: It's, you should probably do one. [00:32:37] Speaker 04: That's correct, Your Honor, but he did explain that statement during the first trial. [00:32:41] Speaker 03: I know, but that's the government can't win by just excluding something that's difficult. [00:32:46] Speaker 03: If there's explanation for it, they need to explain it at the second trial. [00:32:50] Speaker 03: In other words, if there is equivalency between someone whispering to the police, you should probably do a polygraph, and someone whispering to the police, you should probably tell her that perjury is a crime. [00:33:01] Speaker 03: If those are functional equivalents, those are sort of [00:33:06] Speaker 03: gold for a defense attorney. [00:33:08] Speaker 03: And maybe the government can explain it to a jury, but I'm not understanding the theory of it hurts in the first trial hung trial. [00:33:14] Speaker 03: So you get it excluded altogether in the second. [00:33:17] Speaker 03: No problem. [00:33:18] Speaker 03: Conviction seems to sort of point out how could it be harmless? [00:33:21] Speaker 03: That's that's my anxiety in this case. [00:33:23] Speaker 04: Well, I think the distinction is it's the word polygraph. [00:33:26] Speaker 04: So to the extent that defense counsel before the district court wanted to question Zachary's view of the victim's credibility and the veracity of her story and what he believed that she was saying, he was entirely permitted to do that. [00:33:41] Speaker 04: And he did do that during his direct examination. [00:33:45] Speaker 04: The only thing that he was limited from doing was use of the word polygraph. [00:33:49] Speaker 04: And so in that sense, [00:33:51] Speaker 04: the essence of the confrontation issue here was satisfied. [00:33:57] Speaker 04: And he was able to readily attack the credibility of all the witnesses that were important to his defense. [00:34:04] Speaker 04: Thank you. [00:34:04] Speaker 04: Unless the panelists, any additional questions on that issue? [00:34:07] Speaker 00: Oh, are you moving to other issues? [00:34:10] Speaker 00: You're not sitting down. [00:34:10] Speaker 00: OK, go ahead. [00:34:11] Speaker 00: And if you don't address what I want to ask about, I'll ask it. [00:34:16] Speaker 04: The next issue I was going to turn to, Your Honors, in light of what my counterpart discussed was the standard of review regarding the Bode issue and the actual merits of the Rule 29 in both trials. [00:34:30] Speaker 04: So it is our view that the first trial evidence sufficiency is foreclosed under Richardson. [00:34:36] Speaker 04: And focusing specifically on the Bode case that my counterpart cited, as he noted, that was a pre-Richardson case. [00:34:44] Speaker 04: It was a 1979 case. [00:34:46] Speaker 04: And it relied on Berks, which was also a pre-Richardson case. [00:34:51] Speaker 04: And in Bodie, the petitioner appealed the denial of a 2255, where he raised that the district court should have granted his Rule 29 motion during the first trial, thus requiring vacatur of the conviction following his retrial. [00:35:09] Speaker 04: And five years later, Richardson was decided. [00:35:13] Speaker 04: That case and its progeny specifically restricted Birx's application to cases where an appellate court has found insufficient evidence. [00:35:24] Speaker 04: So it no longer applies if no court has made a finding of insufficient evidence. [00:35:30] Speaker 04: And that's discussed in the Gutierrez Zamorano case that was cited in the government's brief. [00:35:36] Speaker 04: So as a result of those cases and Richardson and its progeny, it's our view that Bode really is not good law and the court should not rely on it in declining to foreclose the sufficiency of the evidence review. [00:35:52] Speaker 04: I wanted to briefly turn to something that Judge Higginson pointed out regarding the victim's testimony in this case. [00:36:01] Speaker 04: And the court is entirely correct that just the victim's testimony alone was sufficient to sustain the verdict here and was sufficient to overcome the Rule 29 motions in both cases. [00:36:16] Speaker 04: The elements of aggravated sexual abuse and abuse of sexual contact that are at issue here [00:36:22] Speaker 04: were that Miguel used forced, threatened, or placed the victim in fear that she would be subjected to death or serious bodily injury to cause her to engage in a sexual act. [00:36:34] Speaker 04: And in all of her interviews, during all of her trial testimony, she consistently described being punched in the face, then Miguel climbing on top of her, choking her, and forcibly raping her. [00:36:48] Speaker 04: And she described being in fear for all of that. [00:36:51] Speaker 04: So regardless of quibbling over different ways that she described other details surrounding the attack, she was entirely consistent on the core elements of those two offenses. [00:37:03] Speaker 04: And so the government wins regardless of whether this court wants to reach the sufficiency, whether the sufficiency of the evidence is foreclosed in the first trial. [00:37:15] Speaker 04: unless the court has any additional questions on the remaining issues. [00:37:19] Speaker 00: I have a question on the special conditions. [00:37:21] Speaker 00: Yes. [00:37:21] Speaker 00: So what sentencing goals do the child-related special conditions promote? [00:37:25] Speaker 00: Because I'm looking at the district court decision, and it doesn't provide any reasoning for the conditions. [00:37:32] Speaker 00: And here, I can't see what in the record would support specifically the child-related special conditions. [00:37:43] Speaker 04: Several things, Your Honor. [00:37:44] Speaker 04: So the sex offender conditions, first of all, are in line with what defendants convicted of similar crimes receive. [00:37:54] Speaker 04: So this is obviously a sex offense. [00:37:56] Speaker 04: And Miguel raped a 17-year-old girl. [00:38:00] Speaker 00: And how old was Mr. Miguel? [00:38:02] Speaker 04: He was about 23 years old during the assault. [00:38:05] Speaker 00: Okay. [00:38:05] Speaker 00: So this case is different than sort of the child pornography types of cases. [00:38:09] Speaker 00: that often is where you have the special conditions imposed. [00:38:13] Speaker 00: So how is this case similar to the line of cases that would typically support these special conditions? [00:38:21] Speaker 00: And doesn't the district court have to provide reasons to support the special conditions? [00:38:28] Speaker 04: They do, Your Honor, but that also can be inferred from the record as a whole. [00:38:31] Speaker 04: So in this case, the pre-sentence investigation report contained reasons below each of them. [00:38:39] Speaker 00: Can you point me to where in the record you're looking for that support? [00:38:44] Speaker 00: Yes, Your Honor. [00:38:50] Speaker 00: And specifically, I'm looking for things that would support defendants' continued sexual interest in children, which is the situation in Blinkenship. [00:38:58] Speaker 00: or other facts that would support a condition showing that this defendant is similar to a defendant, say, in a child pornography case. [00:39:10] Speaker 04: I will continue looking for the site while I answer the question, but the short version is that the reasons for those conditions are found in the pre-sentence investigation report at the back where the probation officer [00:39:23] Speaker 00: Can you give me the site and then also tell me what are the specific supporting facts? [00:39:30] Speaker 04: I'm sorry, Your Honor, I don't have the site ready, so I'm happy to provide a supplemental filing with that information. [00:39:37] Speaker 00: I don't think they exist, I think is the point that I'm trying to make. [00:39:40] Speaker 00: So unless you can tell me what the facts are or point me to a specific place in the record, I don't see that they exist in this case. [00:39:49] Speaker 04: Your Honor, I think that the specific facts on the record are the victim's age. [00:39:55] Speaker 04: So she's clearly under 18. [00:39:56] Speaker 04: And regardless of the closer in age gap than the court might see in child pornography cases, that these sex offense specific conditions serve therapeutic goals in rehabilitation [00:40:12] Speaker 04: and they're necessary to protect the community. [00:40:17] Speaker 04: And so that can be inferred from the pre-sentence investigation report as a whole, in addition to the district court's discussion and the government's discussion about how this impacted the victim's life. [00:40:32] Speaker 00: This defendant in particular had a clean criminal record and a history of volunteering with children. [00:40:37] Speaker 00: There was, in fact, not only is there not evidence in the record to suggest, [00:40:41] Speaker 00: the kinds of things that you would have in a typical case where you're imposing these special conditions, but we have actual information that suggests the other. [00:40:49] Speaker 00: Right? [00:40:50] Speaker 04: The court is correct that he had very minimal criminal history besides minor traffic. [00:40:56] Speaker 04: Oh, I see that I'm out of time. [00:40:57] Speaker 04: May I finish answering the court's question? [00:41:01] Speaker 04: Besides other minor traffic offenses. [00:41:05] Speaker 04: Which is not a criminal history, correct? [00:41:07] Speaker 04: That's correct. [00:41:10] Speaker 04: And I'm sorry, I lost my train of thought. [00:41:13] Speaker 04: Would the court rephrase that question or re-ask it? [00:41:15] Speaker 00: The question is, here, not only is there nothing in the record to suggest that there are facts that are similar to, say, a child pornography case, but there are actual facts to suggest that he had a clean criminal history and also was volunteering with children and had sort of community involvement that would suggest that he's not, in fact, a danger. [00:41:37] Speaker 00: I think your comment that provoked my question is that this serves these therapeutic values to protect the community, but we have a defendant here who really doesn't fit that same pattern that you're talking about. [00:41:51] Speaker 04: Your Honor is correct about the underlying record for this particular defendant, but I think the context of this case and the violence of this assault proves otherwise. [00:42:02] Speaker 04: And regardless, this is a plain error review question because defense did not [00:42:06] Speaker 04: object to this below. [00:42:08] Speaker 02: And... Well, can't you find that it's plain error if there's no justification and doesn't really fit the facts of this case? [00:42:21] Speaker 04: Well, I think it does fit the facts of the case, Your Honor, because this is an aggravated sexual abuse and abusive sexual contact case where the victim was under the age of 18. [00:42:30] Speaker 04: And so in looking at the 3553A factors, [00:42:35] Speaker 04: and similarly situated defendants. [00:42:38] Speaker 04: In this particular crime, the types of conditions that are regularly imposed for these types of defendants, the district court imposed conditions that were entirely consistent. [00:42:50] Speaker 02: OK. [00:42:51] Speaker 02: Thank you, Your Honors. [00:42:52] Speaker 02: Thank you. [00:42:56] Speaker 02: Yes. [00:43:02] Speaker 01: Briefly, Your Honors. [00:43:07] Speaker 01: On the 403 issue and whether we've waived that, I could have been clearer in my opening brief by citing the 403. [00:43:16] Speaker 01: I sort of danced around it. [00:43:18] Speaker 01: I thought I had implicitly made the argument. [00:43:22] Speaker 01: The government in turn interpreted our polygraph issue in my opening brief to be both a constitutional and 403 argument and did respond to it. [00:43:34] Speaker 01: And in my reply brief, I'll just quote real quickly, [00:43:39] Speaker 01: Even if the error here did not rise to the level of a confrontation clause violation, this court may find reversible error based on the district court's prejudicial misapplication of the federal rules of evidence, specifically rules 402, 403, and 801. [00:43:56] Speaker 01: With respect to the sexual offender terms, [00:44:03] Speaker 01: Of course, probably aware, Mr. Miguel's age at the time of the alleged offense is in the PSR. [00:44:10] Speaker 01: He was 22 years old. [00:44:12] Speaker 01: Ms. [00:44:13] Speaker 01: Hugo was what I would describe as obviously a young woman, not yet age majority, but she was a sexually mature young woman. [00:44:22] Speaker 01: She wasn't a child. [00:44:23] Speaker 01: He wasn't 40 years old. [00:44:25] Speaker 01: And we just think there's nothing in the record. [00:44:28] Speaker 01: that was presented to the district court that would have justified some of those sex offenders. [00:44:32] Speaker 02: Thank you, counsel. [00:44:33] Speaker 02: I see your time is up. [00:44:35] Speaker 02: We appreciate the argument of both counsel. [00:44:37] Speaker 02: This matter will stand submitted.