[00:00:00] Speaker 05:
So go right ahead sir May it please the court perils and for appellant Dustin Henderson I'd like to reserve about five minutes for a bottle if I may and I would like to address both issues that I raised both overarching issues that I raised in my brief Substitution of council issues.

[00:00:21] Speaker 06:
I'm curious Mr. Henderson

[00:00:26] Speaker 06:
relied serially on court-appointed counsel.

[00:00:29] Speaker 06:
He really had four, the first one and then at trial he had the counsel he didn't like as well as an observer counsel and then afterwards he has you.

[00:00:43] Speaker 06:
But he also had the resources to obtain a private counsel, his family did, for

[00:00:55] Speaker 06:
consideration of the dog bite case, I think.

[00:01:00] Speaker 06:
So why was he unable to privately obtain assistance if he could get a private counsel regarding the dog

[00:01:17] Speaker 05:
Your Honor, I believe that the record reveals that his family consulted with a civil lawyer, and the civil lawyer advised, either directly or indirectly, to stop talking to his court-appointed attorney.

[00:01:31] Speaker 05:
I don't think there's any other evidence in the record to suggest that he actually retained a civil lawyer to pursue a civil dog bite case.

[00:01:41] Speaker 05:
or that he had the financial means to hire a lawyer for the criminal case or the civil case.

[00:01:48] Speaker 03:
So I'm assuming, if we assume he's entitled to a public defender because there was a court finding of that at some point, presumably, which is unchallenged, and that he, I am assuming, but I don't know if this is true, that perhaps a tort attorney would have been available on a contingency fee basis or some such thing.

[00:02:10] Speaker 03:
I think we're all suspecting that.

[00:02:12] Speaker 03:
I don't mean that in a pejorative sense, but OK.

[00:02:15] Speaker 03:
Nevertheless, what we have to grapple with is whether there had really been a breakdown in communication.

[00:02:21] Speaker 03:
And I'm not sure what we do with the information that a civil attorney who's orbiting out there somewhere in this phahek pattern was apparently advising him, perhaps because of the dog bite case, not to talk to the court appointed attorney.

[00:02:36] Speaker 03:
Well, how does that factor in?

[00:02:38] Speaker 05:
I don't, frankly I don't know that it factors in very significantly other than it demonstrates some good faith on his part that he was not just simply being obstruperous or obstructionist, but he was receiving some advice along those lines.

[00:02:53] Speaker 03:
Well, it means to me that it's a choice, right?

[00:02:58] Speaker 03:
That he's just choosing not to communicate with her, because we certainly have a record that indicates that she assured the court on several occasions that she was willing to work with him.

[00:03:08] Speaker 03:
And he was the one saying, not going to do it.

[00:03:10] Speaker 03:
So it seems to me that it is significant.

[00:03:13] Speaker 03:
I don't mind to hijack your question, Judge Wallach.

[00:03:15] Speaker 06:
Yeah.

[00:03:15] Speaker 06:
And then at the end of the trial, the judge complements him, Mr. Henderson, on cooperating during trial.

[00:03:23] Speaker 05:
During trial, yes.

[00:03:24] Speaker 05:
It's apparent to the judge that they were speaking somewhat during the course of the trial itself.

[00:03:29] Speaker 07:
But even if his actions were taken in good faith, because they were in reliance on the civil counsel's advice, wasn't the inability to communicate attributable to him not to substitute counsel?

[00:03:46] Speaker 07:
In other words, I'm not sure his good faith means that there's the kind of breakdown in the relationship that would require the judge to appoint yet a third lawyer with whom he wouldn't communicate.

[00:04:00] Speaker 05:
Let me put it this way.

[00:04:03] Speaker 05:
So the thing is, I think what's important about this case and what distinguishes it from other cases is that really before, so he had the first lawyer and that

[00:04:14] Speaker 05:
relationship ended.

[00:04:15] Speaker 05:
Interestingly, it did not end for the same reason.

[00:04:19] Speaker 05:
In other words, there's a short transcript of that hearing.

[00:04:23] Speaker 05:
Judge Hernandez essentially agreed, so there wasn't a great deal of discussion.

[00:04:28] Speaker 07:
Judge Hernandez, to be fair.

[00:04:29] Speaker 07:
Judge Hernandez didn't say there was any fault on the part of the lawyer.

[00:04:33] Speaker 07:
Judge Hernandez did what good trial judges often do, which is, look, I don't want a problem.

[00:04:39] Speaker 07:
You don't like this lawyer.

[00:04:42] Speaker 07:
I'll give you a new one.

[00:04:43] Speaker 07:
Let's see how that works.

[00:04:44] Speaker 07:
And that didn't work either.

[00:04:46] Speaker 05:
And so my point was just that the problem was not that, with respect to the first lawyer, the problem was not that Mr. Henderson was failing to communicate with that lawyer.

[00:04:56] Speaker 05:
And so I just make the point that it's not as though we're seeing a pattern from him of just going through multiple lawyers and not talking to them.

[00:05:04] Speaker 05:
This is unlike the situation, for example, in Rausten.

[00:05:08] Speaker 05:
which the government cites, where that defendant in that case had gone through three previous lawyers and was now on his fourth lawyer and was refusing to communicate with that lawyer.

[00:05:18] Speaker 05:
It was just a couple weeks before trial before he tried to get rid of that one.

[00:05:23] Speaker 05:
And so I would say that I would have to admit that it does seem that it was Mr. Henderson that was not wanting to communicate with his lawyer

[00:05:32] Speaker 05:
But I think you have to dig just a little bit deeper there and see that the reason he was not wanting to communicate with his lawyer is because fundamentally he didn't trust her.

[00:05:42] Speaker 03:
Well, you do have to dig deeper.

[00:05:43] Speaker 03:
And I'm trying to figure out why we should look at this transcript of him and fault the district court for not digging deep enough.

[00:05:51] Speaker 03:
Because he certainly said he didn't trust her.

[00:05:52] Speaker 03:
And that makes our antennas twitch, of course.

[00:05:55] Speaker 03:
This is a very important right we're talking about.

[00:05:57] Speaker 03:
But when they dug deeper, it sounds to me like what she was saying and what he was saying is that he didn't agree with her legal strategy.

[00:06:05] Speaker 03:
He didn't like the motion she had filed.

[00:06:07] Speaker 03:
He was encouraging her to file a different kind of motion.

[00:06:11] Speaker 03:
And she thought in good faith, because she's got a duty to the court too, that she couldn't file the one he wanted.

[00:06:17] Speaker 03:
He did seem to be quite confused about the legal issues that were really before the court.

[00:06:21] Speaker 03:
So that's a choice he's making, right?

[00:06:23] Speaker 06:
He bases this on his high school knowledge of civil rights law.

[00:06:29] Speaker 05:
Well, and there's a lot of oddities to those positions that he's taking, but there's also a kernel of reasonableness.

[00:06:37] Speaker 05:
He wanted to raise an issue regarding the adequacy of the legality of the arrest itself, the suppression motion focused on the search of the

[00:06:47] Speaker 05:
trailer house, he wanted to raise an issue regarding whether they had probable cause to arrest him in the first place and to hold the house pending the search warrant, which was not directly raised as part of the suppression motion.

[00:07:00] Speaker 05:
So although there were a lot of idiosyncratic and unusual legal theories that he put forth, there's some kernel of

[00:07:09] Speaker 05:
reasonableness there.

[00:07:10] Speaker 03:
Although those kernels were going to be present no matter who represented him.

[00:07:15] Speaker 03:
Those kernels that were based upon his, I think it was high school knowledge of the facts, and his insistence that he hadn't been properly arrested under arrest because the officer told him, I don't know if you're under arrest.

[00:07:29] Speaker 03:
That colloquy, I'm sure you know it very well.

[00:07:32] Speaker 03:
That wasn't going to change no matter who represented him.

[00:07:35] Speaker 03:
And the judge said, in terms of following up on this, trying to explain to him, sir, the things you're saying don't make sense.

[00:07:43] Speaker 03:
You need a lawyer.

[00:07:44] Speaker 03:
She's willing to represent you.

[00:07:46] Speaker 03:
So what's your best shot that that was an incorrect ruling, please?

[00:07:51] Speaker 05:
I don't know that it's established or reasonable to infer that no other lawyer could have gotten through to him on those issues.

[00:08:02] Speaker 05:
Again, this is the first, we don't know really what happened with lawyer number one.

[00:08:08] Speaker 05:
So this is lawyer number two, and it very well could have been that with a new lawyer,

[00:08:14] Speaker 05:
Either that new lawyer could have seen something that the first that Ms.

[00:08:18] Speaker 05:
Preeny Abbott didn't see, or that new lawyer could have persuaded Mr. Henderson that there's nothing there.

[00:08:26] Speaker 05:
I don't think we can conclude that it wouldn't have helped.

[00:08:31] Speaker 07:
We're not dealing with an ineffective assistance of counsel claim.

[00:08:34] Speaker 07:
That might occur later, although I must say, and I include current counsel in this

[00:08:41] Speaker 07:
in his statement that it appears that Mr. Henderson's gotten very good representation at public expense throughout this, including on appeal.

[00:08:49] Speaker 07:
But the issue isn't whether or not different counsel might have made a different decision.

[00:08:56] Speaker 07:
The question is whether or not different counsel

[00:09:00] Speaker 07:
whether or not the relationship had broken down irretrievably, and whether or not there was any real prospect that a different counsel would end up with a different fate.

[00:09:10] Speaker 07:
And Judge Emmer got right or wrong.

[00:09:13] Speaker 07:
held a hearing, talked to people, thought about these issues, and concluded that this wasn't the case in which new counsel was required a second time.

[00:09:24] Speaker 07:
So why was that an abuse of discretion?

[00:09:26] Speaker 07:
That's sort of what we're all hinting at, but I'm having trouble figuring out what she should have done differently.

[00:09:33] Speaker 05:
I think when it comes to Judge Emerget's ruling that she made six days before the trial date, there's actually a factual error that she relied on.

[00:09:42] Speaker 05:
And that was that in her ruling, she stated that Mr. Henderson was now agreeing to speak with his lawyer going forward.

[00:09:53] Speaker 05:
And when you look at the transcript of that pretrial hearing six days before trial, I don't think you can really draw that conclusion.

[00:10:01] Speaker 05:
there's one line I think that the government cites where she asks are you willing to speak with your attorney and he says yeah she promises to keep keep her promise but then on that very same page of the transcript he goes back to saying I'm only going to talk to her if it pertains to sentencing matters and she's he's prepared to enter a no contest plea and just get move on to sentencing that's how bad

[00:10:25] Speaker 05:
the relationship has deteriorated.

[00:10:28] Speaker 03:
Either that, or he's recognized that his face is on the video committing the robbery.

[00:10:32] Speaker 03:
So that's a pretty tough fact for him.

[00:10:34] Speaker 03:
I agree with my colleagues, by the way that you've prepared a really excellent brief, and that the question we're all focusing on is that law is very well established here, right?

[00:10:43] Speaker 03:
And we're trying to figure out if there was really a breakdown in communication.

[00:10:46] Speaker 03:
And for me, the toughest part is that there's an indication that he's saying, I don't trust her.

[00:10:52] Speaker 03:
We take that very seriously.

[00:10:55] Speaker 03:
There's sort of two avenues, I think.

[00:10:57] Speaker 03:
One is that he didn't agree with her legal strategy, and that doesn't persuade me to be candid.

[00:11:03] Speaker 03:
The other is that he does say a couple of different times she hasn't

[00:11:07] Speaker 03:
got my side of the story.

[00:11:08] Speaker 03:
She's not listening to me.

[00:11:09] Speaker 03:
She's not hearing.

[00:11:10] Speaker 03:
So if we had a record that showed that she really hadn't met with him, it seems to me that that would be problematic.

[00:11:18] Speaker 03:
Can you talk about that?

[00:11:20] Speaker 03:
What do we get from the record about counsel meeting with him?

[00:11:23] Speaker 05:
Well, they met.

[00:11:24] Speaker 05:
I mean, she says, I think this was in the February 24th hearing.

[00:11:31] Speaker 05:
By this time, the motion to suppress had been filed.

[00:11:35] Speaker 05:
And she did say that they had met for several hours or talked on the phone or communicated leading up to that point.

[00:11:45] Speaker 05:
And so they had communicated.

[00:11:47] Speaker 03:
Had that happened prior to the motion being filed?

[00:11:51] Speaker 05:
According to my understanding of what she was saying.

[00:11:53] Speaker 05:
Yes, I think so.

[00:11:55] Speaker 03:
Yeah, I think so too unless I've missed reading the record so

[00:11:58] Speaker 05:
And that sort of cuts both ways because that shows that he also, I mean, they must've been having a conversation that he participated in.

[00:12:06] Speaker 05:
So he wasn't completely non-communicative with her from the get-go.

[00:12:12] Speaker 05:
And they must've had a conversation about what the suppression motion would look like.

[00:12:17] Speaker 05:
And then after the motion is filed, he's obviously expressing disappointment about what's in there, both legally and factually in terms of hospital photographs and things like that.

[00:12:28] Speaker 05:
So they talked, but then there was a breakdown again.

[00:12:37] Speaker 05:
really the breakdown in the communication was pervasive throughout the the relationship and I would say most importantly leading up to the trial where they really weren't communicating and so counsel was not prepared to take his direct testimony and those sorts of things and I addressed that in my brief as well as as far as how that played out.

[00:13:03] Speaker 05:
So

[00:13:04] Speaker 05:
In all, I would just say that because he did not demonstrate some previous pattern of just firing lawyers and not talking to them,

[00:13:14] Speaker 05:
uh... he really should have been given another attorney at any of these places but especially you know before trial and i know that that sounds last minute ish but it did the problem had existed really it had been discussed previously mister mister henderson said i'm not going to talk to my lawyer when he was before judge henderson uh... judge hernandez back in february and that that turned out to be true they just they didn't communicate and so they were unprepared

[00:13:43] Speaker 05:
uh... just briefly oh sorry i was going to say you're running out of time i was just going to check to see if my colleagues have other questions well there was another lawyer brought in to observe right and there's not a whole lot on the record set about that except that uh... i think there's some mister henderson expressed that that that the new lawyer was influenced or uh... poisoned i think was his word uh... by the lawyer that he had a fundamental problem with and so

[00:14:12] Speaker 03:
So sir, you said you wanted to, I cut you off.

[00:14:14] Speaker 03:
I didn't mean to.

[00:14:14] Speaker 03:
It's a little tricky to do this by video because one of my colleagues is now behind me.

[00:14:19] Speaker 03:
But you said you wanted to go touch on one other point before we hear from opposing counsel.

[00:14:25] Speaker 05:
Well, I just didn't want to lose sight of the other issue regarding the admissibility of the

[00:14:30] Speaker 05:
the video showing the attack by the dog.

[00:14:35] Speaker 05:
I think that's very important to Mr. Henderson in terms of what his fundamental defense was.

[00:14:41] Speaker 03:
Is that an evidentiary, is that a confrontation clause issue that you're raising there?

[00:14:46] Speaker 05:
I do raise it as such, yes.

[00:14:49] Speaker 03:
All right.

[00:14:50] Speaker 03:
I appreciate that.

[00:14:51] Speaker 03:
So when you come back we'll put two minutes on the clock because we've taken a bunch of your time with our questions and appreciate your argument.

[00:14:59] Speaker 03:
Let me just make sure here we're gonna do a bit of a sound test.

[00:15:01] Speaker 03:
If you come to the podium let's make sure that opposing counsel can see you please.

[00:15:16] Speaker 03:
All right, there she is.

[00:15:16] Speaker 03:
Can you see opposing counsel, sir?

[00:15:19] Speaker 03:
OK, great.

[00:15:20] Speaker 03:
Go right ahead.

[00:15:22] Speaker 01:
Good morning, and may it please the court.

[00:15:24] Speaker 01:
My name is Cassidy Adams, and I'm here on behalf of the United States from the District of Oregon.

[00:15:29] Speaker 01:
We're asking this court to affirm the defendant's convictions in this case.

[00:15:33] Speaker 01:
And I'll deviate from my prepared remarks and just jump right in into some of the questions.

[00:15:38] Speaker 06:
Let me ask you a housekeeping question first.

[00:15:41] Speaker 06:
The place that was robbed

[00:15:43] Speaker 06:
is variously named in the Lighthouse Deli, the Lighthouse Pub.

[00:15:49] Speaker 06:
The court refers to it as a convenience store.

[00:15:52] Speaker 06:
Just for the record, what is it?

[00:15:54] Speaker 01:
It has several purposes.

[00:15:57] Speaker 01:
There's video poker games when you go into it, and then there's also... What's the name of it?

[00:16:02] Speaker 01:
I believe it was Lighthouse Pub.

[00:16:04] Speaker 01:
And people can buy drinks there and snacks and cigarettes.

[00:16:09] Speaker 03:
Okay, so the part on the failure to get counsel of his choice or was there a breakdown of communication?

[00:16:20] Speaker 03:
is the first issue that we're trying to hone in on.

[00:16:23] Speaker 03:
And what I've said, at least speaking for myself, is that the most concerning thing I think that we've got is him saying the two different things.

[00:16:31] Speaker 03:
I've lost faith in her because she's not listening to me and she's not talking to me.

[00:16:35] Speaker 03:
What's the record on that?

[00:16:37] Speaker 01:
Your honor, the record shows that Ms.

[00:16:39] Speaker 01:
Parini Abbott, and I'll focus mainly on her, although we also have Mr. Kaufman that helped bolster that relationship.

[00:16:47] Speaker 01:
Ms.

[00:16:47] Speaker 01:
Parini Abbott made significant efforts to talk with Mr. Henderson, as well as send him letters.

[00:16:55] Speaker 01:
leading up to her filing the motion to suppress.

[00:16:59] Speaker 01:
I'll kind of start right there, because that's where things kind of went south a little bit, as far as Mr. Henderson's view.

[00:17:05] Speaker 01:
Ms.

[00:17:05] Speaker 01:
Parini Abbott, at the February substitution hearing, said that she had met with Mr. Henderson for several hours prior to filing that motion to suppress.

[00:17:16] Speaker 03:
And also, when you look at the declaration that she- Excuse me, counsel, but he said repeatedly, she's not got my side of the story.

[00:17:25] Speaker 03:
By that, did he mean it's not reflected in the motion?

[00:17:28] Speaker 03:
Because he didn't like the motion.

[00:17:30] Speaker 03:
He thought it should be challenging a different point.

[00:17:33] Speaker 03:
Or is it the fact that he made those statements earlier, and I've got that out of Quantological Sequence?

[00:17:40] Speaker 01:
I'm sorry.

[00:17:40] Speaker 01:
Could you repeat your question?

[00:17:42] Speaker 03:
He said in the record, and I think he said it pretty persistently, repeatedly, she doesn't have my side of the story.

[00:17:47] Speaker 03:
She's not getting my side of the story.

[00:17:49] Speaker 03:
And I guess my question boiled down is, did he make that statement before and after that motion was filed?

[00:17:56] Speaker 01:
I believe he made that statement several times throughout the course of the case.

[00:18:00] Speaker 01:
Prior to the motion being filed, there was a substitution hearing in November of 2021.

[00:18:04] Speaker 01:
At that time, Mr. Henderson said, she's in no way prepared to write motions.

[00:18:09] Speaker 01:
She doesn't have my side of the story.

[00:18:11] Speaker 01:
At that time, Mr. Henderson had sent pretty long letters to the court that the court shared with Ms.

[00:18:19] Speaker 01:
Perini Abbott, and that's in volume five of the record, where he lays out what his side of the story is and what his view of what happened is.

[00:18:27] Speaker 01:
Additionally, she had Mr. Henderson testify at the suppression hearing about

[00:18:34] Speaker 01:
the events specifically regarding the arrest, but he told his version of events about what happened.

[00:18:41] Speaker 01:
She, in her declaration supporting that motion to suppress, told the court, Mr. Henderson has recounted to me the events of the arrest, and if he were called to testify, this is what he would say.

[00:18:53] Speaker 03:
So she indicated she- Hence my question about, right, when he says she doesn't have my side of the story, it's hard for me to reconcile that.

[00:19:01] Speaker 01:
Right.

[00:19:03] Speaker 01:
We don't have an affidavit.

[00:19:04] Speaker 01:
This isn't a 2255 hearing.

[00:19:07] Speaker 01:
But we believe the record supports the fact that Miss Pruney Abbott did, in fact, have Mr. Henderson's side of the story based on the communication she had.

[00:19:15] Speaker 01:
And to the extent that he had information that he had not shared with her, that was because of his refusal to communicate, which is what the defendant in Rauston did.

[00:19:27] Speaker 01:
What the Ninth Circuit found is the defendant in Rauston

[00:19:32] Speaker 01:
told the court that he had important information to share with his attorney, but then refused to tell his attorney what that information was, and then used that refusal to attempt to get a new lawyer.

[00:19:45] Speaker 01:
And that's exactly what we have here.

[00:19:47] Speaker 01:
But leading up to trial, one of the things Ms.

[00:19:49] Speaker 01:
Perini Abbott said

[00:19:51] Speaker 01:
Told the court at the pretrial conference was if mr. Henderson gives me new information Before Monday, you know before the trial starts that significant that requires more information I will notify the court and let them know So she told the court that inference being that she might seek a continuance or need more time or something Yes, your honor if there was something material the other thing that sort of bubbling around in this record.

[00:20:15] Speaker 03:
That's a little hard for me to

[00:20:18] Speaker 03:
get my arms around is his statements, and she relayed them to the court, that he thought the case was moving too fast.

[00:20:24] Speaker 03:
I'm much more familiar with defendants complaining that cases are moving too slowly.

[00:20:29] Speaker 03:
And I don't know the extent to which that was ever tied to the separate dog bite.

[00:20:35] Speaker 03:
What I'm referring to is what looks like a looming 1983 dog bite case.

[00:20:41] Speaker 03:
Is that ever tied up in the record somewhere?

[00:20:42] Speaker 03:
Did I miss that?

[00:20:44] Speaker 03:
Why did he think it was going too fast?

[00:20:46] Speaker 03:
Do we have that?

[00:20:47] Speaker 01:
I'm not sure why Mr. Henderson thought that, Your Honor.

[00:20:50] Speaker 01:
He does say that throughout the record.

[00:20:52] Speaker 01:
And the court considered that when determining the timeliness when conducting its inquiry as to whether substitution of counsel was warranted.

[00:21:00] Speaker 01:
Because I'm sorry, I'm not following you.

[00:21:03] Speaker 03:
We should consider his statement that he thought was moving too fast when we consider the timeliness of what?

[00:21:11] Speaker 01:
of his request to have a new attorney and basically start the clock over.

[00:21:17] Speaker 01:
And for example, in one of his pro-safely... You mean he was delaying it?

[00:21:21] Speaker 01:
Yes, Your Honor.

[00:21:22] Speaker 03:
Yeah.

[00:21:22] Speaker 03:
Yes, yes.

[00:21:23] Speaker 03:
It was... Or seeking to delay.

[00:21:25] Speaker 03:
He was seeking to delay and at the same time saying this, yes.

[00:21:28] Speaker 03:
Okay, got it.

[00:21:29] Speaker 01:
Yes.

[00:21:29] Speaker 01:
And what the Ninth Circuit has held in the prime case is that requests for new counsel cannot be grounds for use as a delay tactic.

[00:21:39] Speaker 03:
But there isn't really indication he was doing that.

[00:21:42] Speaker 03:
He never said that.

[00:21:43] Speaker 03:
He did say he thought it was moving too fast.

[00:21:45] Speaker 03:
And I guess I'd do a different inference that had something to do with this outside lawyer telling him, don't talk to your criminal defense attorney.

[00:21:53] Speaker 03:
But maybe I've drawn an incorrect one.

[00:21:57] Speaker 03:
I don't know that it ever gets tied together for me on this record.

[00:22:01] Speaker 07:
So am I correct in thinking that what is not before us today is the propriety of the judge's ruling on the motion to suppress?

[00:22:12] Speaker 07:
What is in front of us is your friend is attacking the judge's ruling on the motion and limiting him by not putting more evidence in.

[00:22:21] Speaker 07:
But the evidence that was the subject of the motion to suppress is not being attacked on appeal.

[00:22:28] Speaker 01:
That's correct, Your Honor.

[00:22:29] Speaker 01:
Mr. Henderson is not challenging.

[00:22:31] Speaker 01:
Judge Hernandez is ruling on his motion.

[00:22:33] Speaker 07:
Does that have any bearing on the counsel issues?

[00:22:38] Speaker 07:
In other words, I'm trying to figure out, once you find all this evidence and it's his, it's in his place,

[00:22:48] Speaker 07:
what communications after that point would have been relevant to rebutting that?

[00:22:55] Speaker 07:
In other words, I'm really wondering in this case whether or not Mr. Henderson sort of wisely said, well, now that I lost the motion to suppress, I might as well stop talking to my counsel because I'm going to be convicted.

[00:23:09] Speaker 07:
Is there anything in the record that supports that conclusion?

[00:23:14] Speaker 01:
I don't believe so, Your Honor.

[00:23:16] Speaker 01:
Ms.

[00:23:16] Speaker 01:
Parini Abbott filed what she believed to be a meritorious motion, and in part she was successful because Judge Hernandez- Dispressed the stuff that was found in the protective sweep.

[00:23:27] Speaker 01:
And there was nothing found in the protective sweep.

[00:23:29] Speaker 01:
Yeah.

[00:23:29] Speaker 01:
There was a search warrant that was signed, and then officers executed that night.

[00:23:35] Speaker 01:
But Mr. Henderson became frustrated at that February substitution hearing

[00:23:40] Speaker 01:
which was after she filed a motion to suppress.

[00:23:43] Speaker 01:
He said he wanted her to add the false arrest allegation to that motion to suppress.

[00:23:49] Speaker 01:
The hearing happened in March, and then you also have the pretrial hearing, substitution hearing.

[00:23:56] Speaker 01:
At that point, Mr. Henderson was also being assisted by Mr. Kaufman.

[00:24:01] Speaker 01:
So any frustrations, perhaps, with Ms.

[00:24:03] Speaker 01:
Parini Abbott were mediated by Mr. Kaufman.

[00:24:05] Speaker 07:
I guess what I'm asking about it, and I want to break this down, it does appear there was communication before the motion to suppress.

[00:24:12] Speaker 07:
The record that you suggest talks about that.

[00:24:17] Speaker 07:
It may be that after the motion to suppress didn't turn out the way Mr. Henderson wanted, there may not have been as much communication thereafter.

[00:24:28] Speaker 07:
So I'm trying to figure out where in this relationship

[00:24:32] Speaker 07:
the communication stopped, because it's pretty clear there was communication up to a point.

[00:24:37] Speaker 06:
And there was a trial.

[00:24:39] Speaker 07:
And there was a trial.

[00:24:40] Speaker 07:
And there was communication during the trial, as the judge said.

[00:24:42] Speaker 07:
I want to compliment you for your communication.

[00:24:45] Speaker 07:
So I'm trying to figure out where it stopped and why.

[00:24:49] Speaker 07:
And maybe the record just doesn't tell us that.

[00:24:52] Speaker 01:
There were periods when there wasn't communication between Mr. Henderson and Ms.

[00:24:56] Speaker 01:
Parini Abbott.

[00:24:57] Speaker 01:
But was that all post?

[00:24:59] Speaker 03:
Doesn't that pop up after the motion is filed?

[00:25:01] Speaker 03:
He didn't like the theory that he saw in the motion.

[00:25:04] Speaker 03:
The arguments that were raised there is what I understood this record to be.

[00:25:07] Speaker 03:
Is that a fair?

[00:25:08] Speaker 01:
What he said in the February hearing was that he didn't want her to take the motion back.

[00:25:15] Speaker 01:
He told the court, I never wanted Ms.

[00:25:16] Speaker 01:
Parini Abbott to take it back.

[00:25:18] Speaker 01:
I just wanted her to also add that I was falsely arrested.

[00:25:22] Speaker 01:
And he wanted her to add that claim to it, which is not a claim for relief in a criminal case.

[00:25:26] Speaker 03:
Yeah, but we understand that.

[00:25:27] Speaker 03:
It just seems to me, I think you're saying that the answer to my question is yes.

[00:25:30] Speaker 03:
So both of my colleagues, well, now there's three of us.

[00:25:32] Speaker 03:
trying to probe that there were times when these folks were communicating and times when they were not.

[00:25:37] Speaker 03:
And it seems very clear that there was communication leading up to the motion, although somewhat perplexingly.

[00:25:44] Speaker 03:
He says throughout, she doesn't have my side of the story.

[00:25:46] Speaker 03:
But at the time of the motion, she thought she did.

[00:25:49] Speaker 03:
It seems pretty clearly the case.

[00:25:51] Speaker 03:
And then it also seems clear he didn't like the motion before it was even ruled on.

[00:25:56] Speaker 03:
He wasn't happy with the theories that presented there.

[00:25:59] Speaker 03:
He thought they were incomplete.

[00:26:00] Speaker 02:
Do I have that wrong?

[00:26:02] Speaker 02:
He wanted additional theories added.

[00:26:05] Speaker 02:
He wanted the false arrest.

[00:26:06] Speaker 03:
That's a yes, right, Counsel?

[00:26:08] Speaker 02:
The answer to my question is yes.

[00:26:09] Speaker 03:
He wasn't satisfied with the motion?

[00:26:10] Speaker 02:
He wasn't satisfied that more theories weren't added to it in addition to... These are not trick questions.

[00:26:16] Speaker 02:
I'm just trying to... I think the answer is yes.

[00:26:17] Speaker 02:
He didn't... He wasn't happy with that motion before it was ruled on.

[00:26:20] Speaker 02:
Is that right?

[00:26:21] Speaker 01:
He wasn't fully happy with it, Your Honor.

[00:26:24] Speaker 03:
I'm going to take that as a yes, even though you don't want to say yes.

[00:26:28] Speaker 01:
He agreed with Ms.

[00:26:29] Speaker 01:
Perini Abbott's theory of what she had filed.

[00:26:32] Speaker 02:
So, and Your Honor, just going to Mr. That when the communication breaks down when he stops talking to her?

[00:26:42] Speaker 01:
There were several, there was, before, after the motion was filed, there was that February substitution hearing.

[00:26:49] Speaker 01:
And then at that time, Mr. Kaufman was appointed.

[00:26:52] Speaker 01:
And Ms.

[00:26:53] Speaker 01:
Parini Abbott and Mr. Kaufman didn't, excuse me, Ms.

[00:26:55] Speaker 01:
Parini Abbott and Mr. Henderson didn't have much communication leading up to trial.

[00:27:00] Speaker 01:
But she had been trying to communicate with him.

[00:27:03] Speaker 01:
And she told the court.

[00:27:05] Speaker 07:
That's what I'm trying to, I'm trying to get a timeline in my mind here.

[00:27:08] Speaker 07:
There's obviously a troubled relationship throughout, but at least if we're talking about communications, there's evidence that there were communications leading up to and at the time of the motion to suppress.

[00:27:20] Speaker 07:
I don't know what Mr. Henderson's motivation was, although he testifies later.

[00:27:24] Speaker 07:
that it seems to me that after the motion is suppressed, he doesn't want to talk to appointed counsel anymore.

[00:27:32] Speaker 07:
The record seems to reflect that she tried to meet with him and talk to him, but he didn't want to.

[00:27:38] Speaker 07:
And then there seems to be some improvement on the eve of trial, particularly with second counsel being put in.

[00:27:44] Speaker 07:
Is that a fair summary of sort of the timeline?

[00:27:49] Speaker 01:
Essentially, Your Honor, yes.

[00:27:51] Speaker 07:
Where is it wrong?

[00:27:52] Speaker 01:
So Mr. Kaufman was able to, at the pretrial conference, Ms.

[00:27:57] Speaker 01:
Perini Abbot informed the court that Mr. Kaufman had been able to meet with Mr. Henderson.

[00:28:02] Speaker 07:
Well, she'd been able to meet with him.

[00:28:05] Speaker 07:
She just wasn't able to get him to communicate with her, right?

[00:28:08] Speaker 01:
He was refusing calls and refusing visits, and she also had tried to inform him about new discovery, and he was sending the mail back, returned to her office.

[00:28:18] Speaker 07:
She was attempting to communicate, and he wouldn't communicate.

[00:28:21] Speaker 07:
But then Mr. Kaufman actually communicated with him.

[00:28:24] Speaker 07:
Yes?

[00:28:25] Speaker 07:
I'm sorry, can you please?

[00:28:25] Speaker 07:
Did Mr. Kaufman actually communicate with Mr. Henderson?

[00:28:28] Speaker 01:
Yes, he did.

[00:28:29] Speaker 01:
And Mr. Henderson had sent Mr. Kaufman a letter informing Mr. Kaufman of what he believed to be new misstatements in the police report.

[00:28:38] Speaker 01:
And then Mr. Kaufman, on the morning of trial, announced that he had been able to meet with Mr. Henderson and was prepared to meet with him.

[00:28:48] Speaker 07:
What's the legal relevance of all that?

[00:28:52] Speaker 07:
So let's assume Mr. Kaufman is appointed as second counsel or whatever the term is.

[00:28:59] Speaker 07:
Mr. Henderson is not communicating with originally appointed counsel, but he is communicating with second counsel, who I think is providing the information from the communications to first counsel.

[00:29:12] Speaker 07:
Those are facts.

[00:29:13] Speaker 07:
Tell me what the legal significance of that is.

[00:29:16] Speaker 01:
So, what you're considering is whether the conflict was so great that it resulted in a total lack of communication, preventing an adequate defense.

[00:29:24] Speaker 01:
And here, you have communication.

[00:29:26] Speaker 01:
He's represented by two lawyers, and so you have him, you know, not liking Ms.

[00:29:32] Speaker 01:
Pruney Abbott and not wanting to meet with her, but he is talking with Mr. Kaufman.

[00:29:37] Speaker 01:
And that goes- And a go-between, sort of.

[00:29:39] Speaker 01:
Yes, Your Honor.

[00:29:40] Speaker 01:
Mr. Kaufman is able to help bolster that relationship.

[00:29:45] Speaker 01:
And the two of them together were able to give him an adequate defense at trial.

[00:29:49] Speaker 01:
And they were able to take what he put forth in some of these letters to the court in Volume 5 that you can see and some of these legal theories.

[00:29:58] Speaker 01:
They were really able to take that and turn it into a viable defense.

[00:30:02] Speaker 01:
Ultimately, he was found guilty, but Mr. Henderson got a terrific defense.

[00:30:08] Speaker 01:
And when you look at Ms.

[00:30:09] Speaker 01:
Parini Abbott's cross-examination of the officers and what she was able to get out of their testimony, I'm running out of time, so I haven't even gotten into the arrest.

[00:30:18] Speaker 01:
But when you really look at what she was able to get out and what she was able to put forth about holes in the government's case, it was really well done, it was professional, and it also was very compassionate towards Mr. Henderson.

[00:30:34] Speaker 01:
It showed remarkable ability to give him that defense.

[00:30:38] Speaker 03:
Counsel, I have a different question.

[00:30:39] Speaker 03:
And it's one that Judge Wallach and I both were trying to follow up with opposing counsel.

[00:30:44] Speaker 03:
And that has to do with what we should make of this.

[00:30:48] Speaker 03:
What he said is that he was being advised by a civil attorney not to talk to his defense counsel.

[00:30:53] Speaker 03:
How does that factor in, or does it factor in?

[00:30:56] Speaker 01:
We don't have a record of a civil of that other than mr. Henderson's own statements Yes, yes, but what should we do that?

[00:31:08] Speaker 01:
I Think the court needs to consider what the findings the district court made but

[00:31:16] Speaker 01:
the findings that the district court made regarding Mr. Henderson and him needing to work with counsel and his refusal to do so.

[00:31:22] Speaker 01:
I was sitting there trying to find it in the record, and I was not able to find the page.

[00:31:28] Speaker 01:
But at one point, Judge Emmergett inquired with Mr. Henderson, are you hiring private counsel?

[00:31:33] Speaker 01:
And he said no.

[00:31:34] Speaker 01:
And she said, OK, well, this is your lawyer.

[00:31:37] Speaker 01:
This is the lawyer you need to interact with.

[00:31:40] Speaker 03:
Well, he wasn't hiring private counsel in the criminal case.

[00:31:42] Speaker 03:
It's easy to imagine that he would have been able to get on these facts.

[00:31:46] Speaker 03:
to get somebody to accept a contingency fee engagement to pursue the 1983.

[00:31:50] Speaker 03:
That's not in front of us, and I don't mean to suggest otherwise.

[00:31:55] Speaker 03:
But I was wanting to focus on, you know, we're looking to see whether this was volitional.

[00:32:00] Speaker 03:
So he's just choosing not to participate.

[00:32:03] Speaker 03:
That's one thing.

[00:32:05] Speaker 03:
And I think that the trial court was convinced that that was right.

[00:32:08] Speaker 03:
He had a lawyer.

[00:32:09] Speaker 03:
He had a certainly very competent lawyer.

[00:32:10] Speaker 03:
He was choosing not to talk to her because she was sure willing to talk with him.

[00:32:15] Speaker 03:
So I'm just wondering, and I think at least one other judge appears wondering, what did we do about the fact that he says that, or at one point, he said that was because he had received that advice from a civil attorney.

[00:32:30] Speaker 03:
Does that factor in?

[00:32:33] Speaker 01:
I think you can consider that factor when determining whether it was volitional.

[00:32:37] Speaker 01:
I think that you're correct.

[00:32:38] Speaker 01:
And then once Mr. Henderson was told by the judge, I think it was Judge Emerget, this isn't a civil case, this is your attorney, you need to communicate with her, you can also take that into consideration.

[00:32:50] Speaker 01:
But I think if Mr. Henderson had been

[00:32:53] Speaker 01:
getting information from somebody else, that's one thing the court can consider.

[00:32:58] Speaker 01:
But I will say there's no record of a civil attorney.

[00:33:01] Speaker 01:
I did a search and pacer just to see if there was a civil case filed with Mr. Henderson in federal court prior to today.

[00:33:09] Speaker 01:
And I did not see any such civil case that has ever been filed or any civil attorney representing him.

[00:33:14] Speaker 06:
OK.

[00:33:14] Speaker 06:
Your opposing counsel is going to talk about the motion in Lemony, I believe, in his rebuttal time.

[00:33:21] Speaker 06:
So I want you to address it a little bit, if that's OK.

[00:33:25] Speaker 03:
Sure.

[00:33:25] Speaker 03:
Briefly, please.

[00:33:26] Speaker 03:
Because we've taken you dramatically over your time.

[00:33:28] Speaker 03:
So briefly address it.

[00:33:30] Speaker 01:
We agree with what the district court did in this case.

[00:33:36] Speaker 01:
She carefully considered what the evidence was that the defendant was wanting to get in.

[00:33:41] Speaker 01:
And she found it to be minimally probative.

[00:33:45] Speaker 01:
She also found that that evidence, the video of the arrest, would be very prejudicial to the government.

[00:33:52] Speaker 01:
But she allowed Ms.

[00:33:53] Speaker 01:
Parini Abbott to inquire about that force was used and that Mr. Henderson could file a civil claim.

[00:34:02] Speaker 01:
And she also allowed

[00:34:04] Speaker 01:
the officers to talk about how Mr. Henderson had been calm prior to being arrested.

[00:34:09] Speaker 01:
So those facts were able to be brought in.

[00:34:12] Speaker 01:
The court correctly drew the 401-403 line.

[00:34:15] Speaker 01:
And Mr. Henderson was able to make a full-throated defense with the evidence that he got in.

[00:34:19] Speaker 03:
But he didn't think so.

[00:34:20] Speaker 03:
And it was certainly, when you say full-throated, it was watered down somewhat, wasn't it?

[00:34:26] Speaker 03:
I think the standard for confrontation is whether the jury really had an opportunity to recognize

[00:34:32] Speaker 03:
The witness's reasons or motivations perhaps were for his or her testimony.

[00:34:39] Speaker 03:
But you're not arguing that his, the 401-403 analysis was, it doesn't seem very black and white to me.

[00:34:48] Speaker 03:
Defense counsel elicited the facts that force had been used, right?

[00:34:53] Speaker 03:
And that they had been accused of excessive force, I think.

[00:34:56] Speaker 03:
And I think at one point even that they recognized that there could be a civil suit, something like that.

[00:35:01] Speaker 03:
But no photos, the photos didn't come in and there wasn't indication that he'd been sent to the hospital, right?

[00:35:08] Speaker 03:
That's correct.

[00:35:09] Speaker 03:
So when we talk about 403, of course, we're talking about all of it's prejudicial to the government because for the reasons we don't need to go into today, but why would it have been unfairly prejudicial to the government?

[00:35:21] Speaker 01:
Well, it would have shown, it would have gotten into an issue that would involve potentially civil tort issues, which the court did not want a mini trial or a sideshow.

[00:35:33] Speaker 01:
That's prohibited by Rule 403.

[00:35:36] Speaker 06:
Wasn't the judge's reasoning on the other side also that the police would testify about what their subjective beliefs were about his condition?

[00:35:45] Speaker 01:
Yes, Your Honor.

[00:35:46] Speaker 01:
And what the government proffered at the pretrial conference would be if that evidence had come in that the officers would respond and say that they did not, they did not want this to be a suicide by cop situation, which goes into mental health and all sorts of other issues.

[00:36:05] Speaker 03:
And the mini trial.

[00:36:06] Speaker 01:
Yes, and a mini trial.

[00:36:08] Speaker 01:
And in our 28-J letter, we cited it's an unpublished case, but it's United States versus Washington.

[00:36:14] Speaker 01:
It's another COVID-era Ninth Circuit case with similar situations where the court, Ninth Circuit, agreed with the exclusion of a similar video.

[00:36:22] Speaker 03:
I'm going to cut you off now, because you really are six minutes over your time.

[00:36:26] Speaker 03:
And that's largely our fault.

[00:36:27] Speaker 03:
But we appreciate your argument very much.

[00:36:29] Speaker 03:
Thank you, Your Honor.

[00:36:30] Speaker 03:
Thank you.

[00:36:30] Speaker 03:
We'll hear from opposing counsel.

[00:36:34] Speaker 05:
Thank you.

[00:36:35] Speaker 05:
If I could just pick up on that, the evidentiary issue.

[00:36:39] Speaker 05:
Your Honor, Judge Christensen, a moment ago you said that there was evidence did come in that there was excessive force.

[00:36:47] Speaker 05:
The word excessive was not used in testimony.

[00:36:50] Speaker 03:
You're right.

[00:36:52] Speaker 03:
As soon as I said it, I realized that.

[00:36:54] Speaker 03:
But I've looked at this very carefully, hence my description of it being watered down.

[00:36:59] Speaker 03:
So what is it that you think put that over the line for purpose of the Confrontation Clause claim?

[00:37:04] Speaker 03:
What's your best case here that he was really deprived of?

[00:37:08] Speaker 05:
What the jury did here was that there was force used and that the officers were aware that there was some possibility of civil liability.

[00:37:20] Speaker 05:
There was no measure of how much force was used.

[00:37:23] Speaker 05:
There was no measure of what was the actual risk of real civil liability.

[00:37:30] Speaker 03:
Well, not the risk of, but the police officer was questioned and he admitted that there was a risk of a civil suit because of the use of force.

[00:37:37] Speaker 03:
The jury was too bad.

[00:37:39] Speaker 05:
risk of a civil suit Without any indication of what might what what that suit would be based on other than that force was used But no indication to tell the jury that it was Any clue that it was an unlawful use of force or that a jury some other fact-finder might conclude that it was unlawful What about the closing argument at er five seven four seven five?

[00:38:05] Speaker 03:
The council's closing argument seemed to me to be quite fulsome and

[00:38:09] Speaker 05:
Yeah, and I think I don't have that.

[00:38:11] Speaker 03:
It says Mr. Henderson was sitting peacefully on the steps calmly, and they still use force to carry out that arrest.

[00:38:17] Speaker 03:
You heard both of these officers also admit that he could bring a lawsuit against them for the use of force in that arrest and so forth.

[00:38:23] Speaker 03:
So it seems like the jury certainly had reason to recognize that his argument was that there was a motive.

[00:38:28] Speaker 03:
And she argued that we don't know what happened when they were in there, and an opportunity to leave evidence.

[00:38:33] Speaker 03:
I think that's pretty clear, it seems to me.

[00:38:35] Speaker 05:
Yeah, but just given the defense is pretty bold, obviously.

[00:38:42] Speaker 05:
I mean, we're claiming that these officers went in and planted evidence.

[00:38:45] Speaker 05:
And in order to put forth a bold defense like that, I think the jury really needed to understand what happened.

[00:38:54] Speaker 05:
Why would the officers do that?

[00:38:55] Speaker 05:
Well, they're not going to do that just if they use force to take somebody into custody who maybe doesn't really need to have any force.

[00:39:03] Speaker 05:
But they might do it if they sick to dog and mauled that that mauled the defendant and put 40 stitches in his arm and then hit him over the side of the head and push them to the ground, as is all depicted in that video and so I.

[00:39:18] Speaker 05:
The bias really didn't come through without the jury understanding what really happened and what the degree of force was.

[00:39:28] Speaker 03:
It's why I characterized my question to opposing counsel as watered down.

[00:39:32] Speaker 03:
I think it was watered down.

[00:39:34] Speaker 03:
And then you have the problem of the inevitable outcome given his

[00:39:41] Speaker 03:
the video image of him, which seemed to be extraordinarily clear.

[00:39:46] Speaker 03:
So in other words, what about overwhelming evidence of guilt?

[00:39:48] Speaker 03:
How does that play in?

[00:39:49] Speaker 05:
Well, the overwhelming evidence of guilt was what they found in the trailer.

[00:39:54] Speaker 03:
It wasn't his face on the video.

[00:39:57] Speaker 05:
Well, they captured a video of the robber.

[00:40:02] Speaker 05:
There was a still shot.

[00:40:03] Speaker 05:
There was a video that was shown.

[00:40:04] Speaker 07:
Well, I guess your argument is it doesn't go to all the convictions.

[00:40:09] Speaker 07:
The shot of him in the deli is not overwhelming evidence of guilt of all the offenses for which he was convicted.

[00:40:20] Speaker 07:
It may be overwhelming evidence of guilt of robbing the deli.

[00:40:26] Speaker 07:
But he was convicted of more offenses than that, right?

[00:40:30] Speaker 05:
Reasonable minds may differ, but I would say that the video, the quality of the video was not sufficient to establish that he was the guy.

[00:40:40] Speaker 03:
Let me just check.

[00:40:42] Speaker 03:
Do you have any further questions?

[00:40:43] Speaker 03:
No, I don't.

[00:40:44] Speaker 03:
I don't think there's any further questions from the panel, sir.

[00:40:46] Speaker 03:
But again, we took a lot of your time with our questions, so we'll give you an opportunity to wrap up.

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

[00:40:53] Speaker 05:
And just on the other substitution issue, I won't spend a whole lot of time on that.

[00:40:58] Speaker 05:
I think that there was some evidence that they were communicating.

[00:41:02] Speaker 05:
They were communicating at trial, and they were

[00:41:05] Speaker 05:
But we don't really, frankly, know the quality of those communications.

[00:41:08] Speaker 05:
But what we do know is that Mr. Henderson felt unprepared to testify.

[00:41:14] Speaker 05:
And so that provides some clue that they really hadn't communicated enough to the extent that he felt prepared to testify.

[00:41:24] Speaker 05:
And so that gives some indication that really the extent of their communication was not great.

[00:41:30] Speaker 05:
And I really think that Ms.

[00:41:32] Speaker 05:
Parini Abbott in each of these hearings was quite clear that, you know, the communication is broken down.

[00:41:37] Speaker 05:
Yeah, we did talk probably early in the case about some things that pertain to the suppression motion, but for all intents and purposes, we've stopped talking.

[00:41:46] Speaker 05:
We haven't talked since, you know, whenever.

[00:41:49] Speaker 05:
So the big picture is the communication had broken down and he should have been given another attorney.

[00:41:59] Speaker 05:
Thank you.

[00:41:59] Speaker 03:
Thank you for your excellent briefing and advocacy.

[00:42:02] Speaker 03:
Thank you both for your patience with our questions.

[00:42:04] Speaker 03:
We'll take that matter under advisement and stand in recess.

[00:42:09] Speaker 03:
Thank you.