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

[00:00:05] Speaker 00:
David Friedman of the United States.

[00:00:06] Speaker 00:
May it please the Court.

[00:00:08] Speaker 00:
I'd like to reserve two minutes for rebuttal and I'll do my best to watch the clock.

[00:00:13] Speaker 00:
So I'd just like to start by noting this is the rare case where the Supreme Court, this Court, and virtually every Court of Appeals all agree

[00:00:22] Speaker 00:
A defendant's flight is admissible as evidence of consciousness of guilt and of guilt itself.

[00:00:27] Speaker 00:
And the district court's decision to the contrary in this case is inconsistent with that longstanding precedent.

[00:00:34] Speaker 05:
Well, Mr. Friedman, you cite lots of authority that says that the district court can admit the evidence.

[00:00:39] Speaker 05:
Do you have any authority suggesting that it must under an abuse of discretion standard?

[00:00:44] Speaker 00:
Well, the sense is I point the court to that case that actually was a case, it was a government appeal where the district court granted a motion to eliminate excluding certain evidence and this court evaluated that on appeal and determined that under Rule 403 it had to come in.

[00:00:59] Speaker 00:
Because ultimately the Rule 403 standard is very permissive.

[00:01:02] Speaker 00:
It's reserved, exclusion of relevant evidence under Rule 403 is reserved for the rare case where

[00:01:09] Speaker 00:
the unfair prejudice substantially outweighs the probative value.

[00:01:13] Speaker 00:
And here, if we look at both sides of the balance, we have highly probative evidence and evidence that doesn't pose much of a risk of unfair prejudice.

[00:01:22] Speaker 03:
Your standard of review is still abuse of discretion.

[00:01:24] Speaker 03:
And I think the problem in decencies was that there just wasn't a rule 403 balancing.

[00:01:29] Speaker 03:
Here, the district court did that.

[00:01:31] Speaker 03:
So I don't see the problem.

[00:01:33] Speaker 00:
Well, so I think first of all, here the district court did not identify the correct legal standard, which is itself an abuse of discretion.

[00:01:39] Speaker 00:
The district court just said the prejudice outweighs the probative value of the evidence, and the test is unfair prejudice.

[00:01:47] Speaker 00:
And looking at the district court's decision, we don't know what the prejudice was, why it was unfair,

[00:01:52] Speaker 00:
or why the district court thought it was outweighed by the primitive values.

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So we do think this could be a case where this court applies to noble review.

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But even if it does, again, rule 403, the district court's discretion is tethered to the underlying standard.

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It needs to be a case where the unfair prejudice substantially outweighs probative value.

[00:02:10] Speaker 00:
And here, under the unique facts of the case, we think this is highly probative evidence.

[00:02:15] Speaker 00:
And the reason is that the defendants have represented, they plan to present a defense that they were the people who stole, that took liquor from these Bevmo liquor stores, but they had the intent to commit theft, not robbery.

[00:02:27] Speaker 04:
One thing that is a little, when I first picked up this case, I thought what the facts were going to be were that, you know, the cops arrived at the Bevmo and then chased them there, and that isn't it.

[00:02:41] Speaker 04:
It was some period of time after they left it

[00:02:46] Speaker 04:
that this chase began, so arguably that creates a factual difference that makes this not quite as clean a case of escape as the prior cases.

[00:02:58] Speaker 00:
Well, it was only 24 minutes later, and there's no allegation that something happened in that 24-minute period.

[00:03:05] Speaker 00:
They'd committed some other crime that would have given them another reason to flee.

[00:03:08] Speaker 04:
In connection with this motion, did you proffer anything about what happened in the 24 minutes and why the

[00:03:15] Speaker 04:
the cops were chasing them and how that came about?

[00:03:18] Speaker 04:
Well, we anticipate that BevMo employees will testify that the — The question is, is there anything in the record before the district court that addressed that issue?

[00:03:27] Speaker 00:
I do believe it was addressed in the motion in the lemonade briefing.

[00:03:31] Speaker 00:
I think at page 83 of — I believe it was the government's opposition.

[00:03:36] Speaker 00:
We expect that Bevmo employees will testify that the reason they abandoned the robbery is because they thought police had been called and they were correct.

[00:03:43] Speaker 00:
And if you look at kind of the two numbers here, we know it was 24 minutes away and 15 miles.

[00:03:48] Speaker 00:
That suggests they had kind of been driving the entire time until the police caught up with them.

[00:03:52] Speaker 05:
But Mr. Friedman, for purposes of establishing that, you simply have to show that they took off from the store, right?

[00:03:59] Speaker 05:
What happens nearly a half hour later,

[00:04:02] Speaker 05:
I'm not sure how that adds anything to your theory.

[00:04:07] Speaker 00:
Well, our point is, you know, defendants have suggested maybe because there was a break in time, there was some other reason they fled.

[00:04:13] Speaker 00:
And that's something this court has considered in cases like Silverman where there was a two-month break.

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And this court said, well, we don't know why the defendants fled.

[00:04:19] Speaker 00:
But here, it's only 24 minutes later.

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Nothing has happened in the interim.

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So I do think it's plausible.

[00:04:26] Speaker 00:
It's the most likely scenario that they fled because of this attempted robbery that they had abandoned because they thought the police had been... How about the theft of the car?

[00:04:35] Speaker 00:
That that could be another reason, but you know this court has held in her and Hernandez Miranda that the mere fact that there's other reasons for flight is not a basis for to exclude the evidence.

[00:04:44] Speaker 00:
It's it goes to wait, not a miss ability and defendants want to admit the other reasons they've proffered.

[00:04:50] Speaker 00:
I think that's certainly their right and the district court can instruct.

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can instruct the jury that, you know, there are innocent reasons for flight that may be unrelated to this offense, but exclusion's not the remedy.

[00:05:00] Speaker 05:
But it strikes me that that just adds to the prejudice calculation, doesn't it, if they're put in a situation where they have to offer these other reasons which are related to other crimes?

[00:05:10] Speaker 00:
Well, so first we'd argue that the fact that the car was stolen itself is not

[00:05:14] Speaker 00:
It is direct evidence of guilt here because it's evidence of preparation.

[00:05:17] Speaker 00:
They procured a stolen car to commit this final attempted robbery because after the previous robberies, the car had been traced back to them.

[00:05:25] Speaker 00:
It also speaks to the fact that they're claiming they were just

[00:05:28] Speaker 00:
They were just shoplifting, but if we were going to go shoplift, it would be sort of extreme to go procure a stolen car to make sure the police wouldn't be able to track you.

[00:05:37] Speaker 00:
And while there might be some unfair prejudice from the fact this is a separate offense, the question is whether it substantially outweighs the probative value.

[00:05:45] Speaker 00:
And looking at the Seventh Circuit decision in Nolan, I think any unfair prejudice is pretty minimal here.

[00:05:50] Speaker 00:
The defendants are on trial for

[00:05:52] Speaker 00:
Serious robbery offense.

[00:05:53] Speaker 00:
It's unlikely the jury would convict them because they use the stolen.

[00:05:56] Speaker 05:
Is that an element of the crime?

[00:05:57] Speaker 05:
You're trying to prove though that it's not a specific intent crime.

[00:06:01] Speaker 05:
They don't have to Act with intent that that they're committing a robbery.

[00:06:05] Speaker 05:
They have to act with intent that they're Committing the acts that constitute a robbery

[00:06:11] Speaker 00:
So I agree when you have a Hobbs Act robbery and it's a one-person robbery, you don't have to prove that you acted with the intent to commit robbery.

[00:06:18] Speaker 00:
It just has to be you obtained property by force or fear.

[00:06:21] Speaker 00:
But this is a unique situation because we have three defendants and the third defendant here, Hardgraves, who's not involved in this appeal, he's the one who was alleged to have used force at all these robberies.

[00:06:30] Speaker 00:
Sanford's not alleged to have used any force.

[00:06:33] Speaker 00:
Flores, for the most part, has not.

[00:06:34] Speaker 00:
And again, they're arguing, they're going to say, we just have the intent to commit theft.

[00:06:38] Speaker 00:
That's from their papers.

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It's going to be their defense.

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And we will have to counter and say, no, you conspired with hard graves to commit a robbery, not theft.

[00:06:46] Speaker 00:
For the substance accounts, you shared in his intent to use force.

[00:06:49] Speaker 00:
So that really does put their intent front and center.

[00:06:52] Speaker 00:
And we think this is some of the best evidence we have because this was a very dramatic, it was a desperate, it was a dangerous flight.

[00:06:58] Speaker 00:
They fled across a freeway that was life threatening.

[00:07:00] Speaker 00:
And in our view for someone like Sanford, if he was just a getaway driver for shoplifting, he wouldn't have risked his life to get away from the police.

[00:07:07] Speaker 05:
You know, we just like to present that argument to the jury, and they can- Well, part of the danger, I mean, again, that kind of comes out on both sides of the equation, doesn't it?

[00:07:14] Speaker 05:
The fact that it's dangerous.

[00:07:15] Speaker 05:
It's dangerous not just to them, but it's dangerous to other drivers on the freeway.

[00:07:20] Speaker 05:
It seems like that's just another bit of weight to both sides of the scale, isn't it?

[00:07:25] Speaker 00:
So this court considered a very similar argument in Holliday, and I would direct this court to look at that decision.

[00:07:30] Speaker 00:
I think it is very, very similar.

[00:07:32] Speaker 00:
And in Holliday, it was another case with a defendant.

[00:07:34] Speaker 00:
The defendant had committed a series of robberies

[00:07:37] Speaker 00:
that were caught on tape.

[00:07:39] Speaker 00:
The police found him.

[00:07:40] Speaker 00:
They caught up to him.

[00:07:41] Speaker 00:
He led them on a dramatic high-speed chase.

[00:07:42] Speaker 00:
It was actually, I think, more perhaps prejudicial in the way the defendants would argue than this one.

[00:07:47] Speaker 00:
There were sirens.

[00:07:48] Speaker 00:
There was a SWAT team.

[00:07:49] Speaker 00:
There were police dogs.

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And what this court held was that that was not particularly prejudicial.

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And for that reason, I don't think defendants can make that same argument, because I do think it's foreclosed by Holliday.

[00:08:01] Speaker 00:
Getting close to two minutes, so I'm happy to answer any other questions.

[00:08:04] Speaker 00:
Otherwise, I'd reserve the rest for rebuttal.

[00:08:07] Speaker 04:
All right.

[00:08:07] Speaker 00:
Thank you, counsel.

[00:08:09] Speaker 04:
We'll hear now from Mr. Solis.

[00:08:12] Speaker 04:
Did I pronounce that correctly?

[00:08:13] Speaker 01:
Yes, thank you very much, Your Honor.

[00:08:15] Speaker 01:
Anthony Solis, for the appellees.

[00:08:19] Speaker 01:
May it please the court.

[00:08:21] Speaker 01:
I think Your Honor got it exactly right.

[00:08:23] Speaker 01:
The issue in this case has

[00:08:28] Speaker 01:
the is is whether the evidence should come in I don't think there's any dispute that this evidence is admissible every circuit every case that that both sides have asserted acknowledge its admissibility but no case and this court should not create a case where the district court loses its gatekeeping function and lets in what it thinks is is

[00:08:52] Speaker 01:
unfairly prejudicial evidence?

[00:08:56] Speaker 04:
What was the articulate for me the chain of unfair prejudice that was at risk here that was the basis for the rule?

[00:09:04] Speaker 04:
I mean, Congress has created a right for the government to appeal evidentiary exclusions.

[00:09:11] Speaker 04:
And this was done as a formal motion in Lemonade.

[00:09:14] Speaker 04:
Now, this isn't an objection in the middle of trial.

[00:09:17] Speaker 04:
And we have one sentence of explanation from the district court on this that doesn't tell me what the district court thought was the prejudice.

[00:09:28] Speaker 04:
Can you articulate what it is?

[00:09:32] Speaker 01:
Thank you, Your Honor.

[00:09:33] Speaker 01:
Without trying to read the district court's mind, it was clear from the record that both parties gave a fulsome argument on both sides in briefing.

[00:09:43] Speaker 01:
the district court in this case clearly said that the evidence acknowledged it was admissible and said that under a 403 analysis, it still had a gatekeeping function for the evidence, and under 403, the evidence was unfairly prejudicial.

[00:10:00] Speaker 04:
I wish I could... In what way is it unfairly prejudicial?

[00:10:03] Speaker 04:
Well, it's... It's prejudicial because it shows they obviously know they did something wrong to

[00:10:09] Speaker 04:
risk their lives running across the 14 freeway.

[00:10:12] Speaker 04:
But where's the unfair prejudice?

[00:10:14] Speaker 04:
What is the jury could conclude what as opposed to that they're guilty of?

[00:10:19] Speaker 01:
Thank you.

[00:10:20] Speaker 01:
That's of course the issue, because merely prejudicial evidence is just what happens in trial every day.

[00:10:26] Speaker 01:
But unfairly prejudicial in this particular context, the court was aware that the flight was somewhat spectacular.

[00:10:35] Speaker 01:
They're running across the freeway.

[00:10:37] Speaker 01:
There's a stolen car.

[00:10:38] Speaker 01:
One guy's got a warrant out of Arizona for shooting a guy.

[00:10:42] Speaker 01:
So you could have all of these different explanations from three different people as to why they fled.

[00:10:48] Speaker 01:
And I think the district court understood clearly that the trial could get bogged down when really the issue is not why all of these people are fleeing and whether or not this guy has a gun and whether this guy shot a guy or a warrant or any of these things that sometimes becomes or can be devolved into a sideshow.

[00:11:08] Speaker 01:
When in actuality this is a Hobbs Act robbery, when we need to determine what was the use level of force, whether these people

[00:11:17] Speaker 01:
engaged in a violent force or what quantum of force.

[00:11:21] Speaker 01:
So the flight issue becomes less and less probative when there are multiple possible explanations as to why they fled.

[00:11:33] Speaker 01:
There's a stolen car, there's a stolen plate or a false plate.

[00:11:37] Speaker 04:
What's the unfair

[00:11:39] Speaker 04:
inference the jury is going to draw from the flight.

[00:11:44] Speaker 01:
The unfair inference that the jury would draw is that they fled because they knew they were engaged in a Hobbs Act robbery when in actuality there were multiple other potential explanations that each could have potentially asserted at trial.

[00:12:01] Speaker 04:
But that just goes to the weight of permissible inferences.

[00:12:05] Speaker 04:
Unfair prejudice is that there's an impermissible inference.

[00:12:09] Speaker 04:
that is clouding the picture.

[00:12:12] Speaker 04:
And that's not what you've articulated.

[00:12:13] Speaker 04:
You've articulated competing permissible inferences that both sides can draw from this.

[00:12:18] Speaker 01:
Well, it's also you're going to have a situation and trial where one person says he was a passenger.

[00:12:24] Speaker 01:
And when he got out of the car, he fled for one reason.

[00:12:27] Speaker 01:
But the person who was fleeing in the car and driving was for a different reason.

[00:12:32] Speaker 01:
And you also have to understand that this is not flight from the scene of the alleged crime, as the court has pointed out.

[00:12:41] Speaker 01:
This is 24 miles away.

[00:12:44] Speaker 01:
I'm sorry, 24 minutes away and 15 miles away.

[00:12:48] Speaker 01:
not from the scene, but avoiding a traffic stop.

[00:12:52] Speaker 01:
So there's a lot of things packed in there that all of a sudden becomes unfairly prejudicial when each defendant has to explain or is put on the spot to explain the flight and why it doesn't indicate guilt.

[00:13:08] Speaker 04:
That's just the defendant has to react to a permissible inculpatory inference.

[00:13:13] Speaker 04:
That's not unfairly prejudicial.

[00:13:15] Speaker 04:
That's what trials are for.

[00:13:18] Speaker 04:
I agree with that.

[00:13:19] Speaker 04:
You can't exclude inculpatory evidence simply because it's going to make life difficult for the defendant.

[00:13:24] Speaker 01:
Of course not.

[00:13:25] Speaker 01:
That's not how trials work.

[00:13:26] Speaker 01:
Of course not.

[00:13:27] Speaker 01:
But unfair prejudice isn't the only basis and I agree.

[00:13:30] Speaker 04:
That's the only basis he gave.

[00:13:32] Speaker 04:
So he did not say this would be time consuming, this would be a distraction.

[00:13:36] Speaker 04:
He said one sentence and when the government asked for clarification, he shut them down and wouldn't say another word.

[00:13:42] Speaker 01:
The unfairness also derives from the fact that the probative value is low since there's a break in time and we don't know whether the exact reason that they were fleeing.

[00:13:53] Speaker 01:
So the less of a connection between the crime and the flight lessens the probative value of it and increases the

[00:14:02] Speaker 04:
about the unfair prejudice.

[00:14:17] Speaker 04:
that there was planning in terms of what they were going to do and the need to escape.

[00:14:22] Speaker 01:
But that was excluded too.

[00:14:25] Speaker 01:
But there wasn't any evidence that the government proffered that this stolen plate or stolen car was procured

[00:14:33] Speaker 01:
in anticipation of this particular crime or for some other reason, or that it was just incidental or coincidental to the robbery, that someone might have just been driving a car that was stolen.

[00:14:45] Speaker 01:
There was no evidence in the record that someone was tasked with go getting a car in order to commit this crime.

[00:14:53] Speaker 01:
That might have

[00:14:55] Speaker 01:
advance their argument, but in the absence of that, it just happens to be a coincidentally stolen car because they didn't develop the record or present any evidence that that was the case.

[00:15:06] Speaker 05:
Mr. Solis, the context of the district court's ruling here on the eve of trial and oral order is a little ... There's a discussion of an argument as to several motions at once, and then the court gives its quite brief

[00:15:26] Speaker 05:
ruling on this.

[00:15:27] Speaker 05:
Can you point us to your best case for where we should look in the record for the district court's discussion of the unfair prejudice in the whole context of the hearing?

[00:15:39] Speaker 01:
Well, I do think in the district court's

[00:15:44] Speaker 01:
evaluation of all the motions in limiting you had a lot of discussion of for example each defendants criminal history some things that were actual convictions some things that were merely uh... arrests or negative information so the court was weeding out a lot of information that that caused unfair prejudice with regard to

[00:16:06] Speaker 01:
Instagram posts.

[00:16:08] Speaker 01:
It also talked about evidence of a gun, which it did let in because it felt that that was appropriate evidence and it was prejudicial, but not unfairly so.

[00:16:18] Speaker 05:
So I think that some of the any of the past crimes that might have been put at issue, the outstanding warrant or anything in the context of its decision.

[00:16:29] Speaker 01:
Well, I think it was clear that the court was sensitive to the prejudice issue with regard to each of the motions.

[00:16:37] Speaker 01:
I mean, all of the motions really were about the prejudice to the defendants at trial.

[00:16:44] Speaker 01:
And that had to do with, of course, the criminal history, the gun, the Instagram posts, the gang moniker, information.

[00:16:52] Speaker 01:
and all of it.

[00:16:53] Speaker 01:
So I think by the time it was going to evaluate the flight issue, it was still on prejudice.

[00:16:59] Speaker 01:
And the court had the background as far as Mr. Flores's crime in Arizona and that he had an outstanding warrant.

[00:17:10] Speaker 04:
But again, usually when we talk about unfair prejudice, it's a risk that they're going to draw an impermissible inference.

[00:17:17] Speaker 04:
Usually it's character.

[00:17:18] Speaker 04:
So they're going to think it's bad character evidence or it makes them look terrible in some way that's not relevant to guilt.

[00:17:27] Speaker 04:
I'm having a hard time seeing what that sort of unfair inference that the jury would draw.

[00:17:34] Speaker 04:
All I'm hearing is that this would have made the defendants have to respond in ways that would have made life difficult for them.

[00:17:40] Speaker 01:
Well, just briefly, the unfair prejudice, as the court saw, the district court excluded evidence of, for example, Flores's arrest for a shooting

[00:17:52] Speaker 01:
Arizona that he was on bail for.

[00:17:55] Speaker 01:
If that flight were admitted, Flores would then be in a position to have to tell the jury, no, I didn't flee because I knew that the minutes earlier and miles away I had committed some crime, but instead I was actually on bond for a shooting of some homeless person, and that's why I fled, and that's unfair.

[00:18:18] Speaker 01:
I'm going to submit on that.

[00:18:18] Speaker 04:
Thank you, Your Honor.

[00:18:21] Speaker 04:
I will hear rebuttal from Mr. Friedman.

[00:18:28] Speaker 00:
Okay.

[00:18:29] Speaker 00:
Thank you, Your Honor.

[00:18:29] Speaker 00:
I'll try to quickly get through three points.

[00:18:32] Speaker 00:
The first, just to respond to the assertion, this would be a sideshow.

[00:18:36] Speaker 00:
This is a case where defendants have made their intent central.

[00:18:39] Speaker 00:
If we were talking about hard graves, for instance, and he's caught on video using force, I agree this would be less probative, less important.

[00:18:47] Speaker 00:
But defendants, it's not alleged they used force Sanford, for the most part force did not.

[00:18:52] Speaker 00:
And they're gonna say they were just shoplifting.

[00:18:53] Speaker 00:
So I think this fight is very important evidence for us.

[00:18:56] Speaker 00:
It's the reason we wanna present it is because they have made it an issue.

[00:18:59] Speaker 04:
What's your response to his argument that the unfair prejudice is the fact that by putting this in, it will inevitably force them to bring in

[00:19:16] Speaker 04:
other evidence that was excluded as unfairly prejudicial and in a way that is recognizably unfairly prejudicial, because it kind of goes to character sort of inferences.

[00:19:26] Speaker 00:
So I think two things.

[00:19:27] Speaker 00:
One is the mere fact that Flores was on bond does not explain why he fled.

[00:19:33] Speaker 00:
You don't flee because you're on bond.

[00:19:35] Speaker 00:
It's because you have committed a new offense, and in this case it would be the robbery.

[00:19:38] Speaker 00:
And that's a point we made.

[00:19:40] Speaker 00:
in our reply brief, and I don't think defense counsel really addressed that.

[00:19:43] Speaker 00:
And with respect to the idea that he was on bond for shooting a person in Arizona, I don't know why he would possibly introduce that.

[00:19:49] Speaker 00:
Again, even if for some reason the fact that he was on bond explains why he fled, there would be no reason to omit that detail.

[00:19:56] Speaker 00:
At the very least, I think it could be sanitized.

[00:20:00] Speaker 00:
And I think just two other points.

[00:20:02] Speaker 00:
On abuse of discretion, this court typically defers to district courts when you can see they've exercised their discretion.

[00:20:08] Speaker 00:
Here at the district court, we don't know what the basis of the decision is.

[00:20:12] Speaker 00:
Both sides are sort of speculating.

[00:20:14] Speaker 00:
All it said was that the prejudice outweighed the probative value.

[00:20:17] Speaker 00:
We don't know why it was unfair, what the district court thought.

[00:20:19] Speaker 00:
So there's nothing really to defer to.

[00:20:20] Speaker 00:
And in terms of other reasons, again, this court squarely held in Hernandez-Miranda that the mere fact there's other reasons is not a basis to exclude this type of evidence.

[00:20:29] Speaker 00:
And ultimately, we're just asking for a chance to present our case to the jury.

[00:20:33] Speaker 00:
We'd like to present our inferences.

[00:20:34] Speaker 00:
They can present theirs.

[00:20:35] Speaker 00:
Appropriate limiting instructions can be given.

[00:20:38] Speaker 00:
But we do think the district court abused its discretion here, and we'd ask this court to reverse.

[00:20:42] Speaker 05:
Mr. Friedman, I'll just add on behalf of new judges, I don't think the fact that a judge is new and lots of other people are new is a reason for us to reverse or to take into consideration.

[00:20:53] Speaker 00:
I do apologize.

[00:20:54] Speaker 00:
That was not meant to be insulting.

[00:20:56] Speaker 00:
I really do apologize if it came across that way.

[00:20:59] Speaker 00:
I think our only limited point was this judge.

[00:21:02] Speaker 00:
It may have been his very first criminal trial.

[00:21:04] Speaker 00:
It may have been the first time that he had dealt with this particular issue.

[00:21:07] Speaker 00:
But I apologize on behalf of our office and myself if it came across in that manner.

[00:21:12] Speaker 00:
Thank you.

[00:21:13] Speaker 04:
All right.

[00:21:15] Speaker 04:
Thank counsel on both sides for the helpful arguments in this case.

[00:21:18] Speaker 04:
And the case of US versus Florida is submitted for decision.