[00:00:08] Speaker 04:
May it please the court.

[00:00:09] Speaker 04:
My name is Anne Voits and I represent defendant appellant Jasmine Russell.

[00:00:13] Speaker 04:
This court should reverse Mr. Russell's conviction because from start to finish, the district court prioritized a rapid result over the right one.

[00:00:21] Speaker 04:
I'd like to reserve four minutes of my time, if I may.

[00:00:26] Speaker 04:
Any one of the errors committed at trial warrant reversal of his conviction.

[00:00:29] Speaker 04:
Combined, they require it.

[00:00:32] Speaker 04:
And as to Mr. Russell's sentence, because the district court failed to make any consideration of the 3553A factors, at a minimum, Mr. Russell is entitled to re-sentencing.

[00:00:44] Speaker 04:
On appeal, Mr. Russell challenged at trial the admission of the 911 and dispatcher calls, the evidence of a subsequent offense,

[00:00:53] Speaker 04:
the admission of DNA evidence without the court making a finding of reliability, a finding that this court has repeatedly said is required, and the giving of an improper Allen charge that stripped away some of the language designed to protect against the coercive effect of giving such a charge.

[00:01:10] Speaker 04:
That charge was inappropriate to give at all, but it was particularly inappropriate given the language that was taken out.

[00:01:16] Speaker 02:
You raise a number of claims, just as you've been enumerating.

[00:01:21] Speaker 02:
What do you think are your strongest claims?

[00:01:23] Speaker 04:
I think the strongest claims, Your Honor, are the recordings, the Allen charge, speaking solely of the trial errors.

[00:01:30] Speaker 02:
Yes.

[00:01:31] Speaker 04:
Are the recordings the failure to make a finding of reliability as to DNA evidence and the Allen charge?

[00:01:40] Speaker 04:
Okay.

[00:01:41] Speaker 02:
But I think- On the recording, you're talking about when they played the record, when the recording was played.

[00:01:48] Speaker 02:
Yes, well there's a trial, or when the prosecutor mistakenly, inadvertently, or whatever you want to call it, played parts of the

[00:02:02] Speaker 02:
forget if it was the 911 call.

[00:02:05] Speaker 04:
It was the 911 call, Your Honor.

[00:02:06] Speaker 04:
Yeah.

[00:02:07] Speaker 04:
So yes, that is the most glaring error associated with the recordings, but it's certainly not the only one.

[00:02:12] Speaker 02:
The error was- When I was reading the briefs and looking at what the district court judge said, because there was an objection, if I remember correctly, or something.

[00:02:20] Speaker 04:
There was an objection.

[00:02:21] Speaker 02:
And the district court said, well, it was essentially said, I don't have his exact words, but essentially it was inadvertent, it was minor, there was a lot of other stuff going on.

[00:02:32] Speaker 02:
It's unlikely to have caused any prejudice or to make a difference in the outcome.

[00:02:37] Speaker 04:
What do you say to that?

[00:02:38] Speaker 04:
I would say that the court made no effort to ensure that by giving a corrective instruction, by clarifying what happened, and it's clear that the jury focused on those recordings because they asked for them during deliberations and listened to them again.

[00:02:52] Speaker 03:
But what they listened to in the jury room wasn't what was played.

[00:02:56] Speaker 03:
Wasn't that corrected?

[00:02:57] Speaker 04:
It was not, but there was no explanation to them of the difference between the two, or the fact that some part has been- Okay, but just so the record's clear, they did not listen to that in the jury room.

[00:03:06] Speaker 03:
Yes.

[00:03:06] Speaker 03:
That segment was omitted.

[00:03:08] Speaker 03:
It was.

[00:03:08] Speaker 04:
It was corrected, but that correction was never made evident to the jury, nor were they told that they could not consider it.

[00:03:15] Speaker 04:
And as to the admissions of the recordings entirely, I'd like to point out what the district court actually said.

[00:03:23] Speaker 04:
The court said that all they could do was use it for probable cause, but then didn't actually enforce those limitations.

[00:03:29] Speaker 04:
Said that at ER 55.

[00:03:30] Speaker 04:
And when pushed, it's clear that the court found that there wasn't

[00:03:35] Speaker 04:
personal knowledge, and that's essential to admitting any of it, not just the comment about the handgun, which the government admitted over the, despite the court's order.

[00:03:44] Speaker 04:
But the court actually said, she didn't say she saw him shoot a gun.

[00:03:48] Speaker 04:
When the government said, well, it can be inferred, said, yeah, but she didn't say she saw the shooter.

[00:03:53] Speaker 04:
When the government said, well, she ID'd the defendant, the court said, as an assumption, she made.

[00:03:57] Speaker 04:
That's an ER 56.

[00:03:59] Speaker 04:
We think that those findings cannot be squared with admitting the recordings at all.

[00:04:04] Speaker 04:
But it particularly can't be squared with the government's error and the failure to correct it in a meaningful way.

[00:04:09] Speaker 04:
The court should have granted a mistrial.

[00:04:11] Speaker 04:
At a minimum, it should have given a curative instruction.

[00:04:13] Speaker 04:
And leaving it to the jury to sort of try and figure out simply was a problem.

[00:04:18] Speaker 04:
And the fact that the jury asked to hear those recordings again shows how significant they were.

[00:04:22] Speaker 02:
So you think this is so prejudicial by itself, that merits reversal.

[00:04:26] Speaker 02:
Is that your argument?

[00:04:26] Speaker 04:
Yes, but I think when you combine it with the fact of the admission of those recordings at all, plus the fact that you had the evidence of other acts, you had the evidence of DNA brought in.

[00:04:38] Speaker 02:
In that issue, it's the subsequent incident similar.

[00:04:44] Speaker 02:
Yes.

[00:04:44] Speaker 02:
That's the one you're talking about there.

[00:04:46] Speaker 02:
Is that correct?

[00:04:46] Speaker 04:
Yes, so in our view, first, it was error to admit both the 911 call and the dispatcher call, which despite the fact that the court really viewed it as going to explaining why they were there, the government used it for proof.

[00:05:02] Speaker 04:
They used it to bolster Officer Tejada's testimony.

[00:05:05] Speaker 04:
Officer Tejada testified that the defendant didn't put his hands up immediately.

[00:05:10] Speaker 04:
but on cross-examination admitted that he didn't know if the windows that the windows were up that they may have been tinted that in fact there were photographs showing that the windows were tinted and that he didn't actually discuss what defendant had been doing with his hands in the police report so the government then shifted and looked at the dispatcher call and said well look look at what they're saying in that there they're saying that he didn't raise his hands and that was also problematic

[00:05:34] Speaker 01:
Well, what about the guns that were found in the secret compartment of the car?

[00:05:38] Speaker 01:
You know, combining that with, and I'm now thinking about the prejudice side of this, so even if there were some type of error, the discovery of the handguns in the secret compartment combined with the 2019 incident, why doesn't that allay any prejudice concerns in your mind?

[00:05:55] Speaker 04:
Because those other acts of evidence shouldn't have been admitted either.

[00:05:58] Speaker 04:
If they were being admitted to show other modus operandi or knowledge, it doesn't really prove, given that two years later, he knew about a compartment that was discovered during this search.

[00:06:07] Speaker 04:
It's not relevant in the prejudice from it.

[00:06:09] Speaker 01:
Why not?

[00:06:10] Speaker 01:
The pattern of hiding guns in a particular way in his car.

[00:06:16] Speaker 01:
Because we're looking at that for an abuse of discretion.

[00:06:19] Speaker 01:
So why is it an abuse?

[00:06:20] Speaker 04:
Because I think in this case, the evidence was undisputed that the officers present at the subsequent incident one said that it couldn't be opened from the passenger side, that the factory screws were still there.

[00:06:33] Speaker 04:
And while Mr. Russell was the driver in the later incident, he was a passenger in the first.

[00:06:37] Speaker 04:
So we think the probative value is minimal, but the prejudice, including the fact that the officer testified that he was on a prostitution detail, the other details that came in,

[00:06:45] Speaker 04:
made it deeply prejudicial.

[00:06:47] Speaker 04:
And so, and the court never carried out a 403 analysis either.

[00:06:53] Speaker 02:
You had, you said another one of your stronger arguments was the Allen, would you call it an Allen charge?

[00:06:58] Speaker 02:
Yes.

[00:06:59] Speaker 02:
Was it really an Allen charge?

[00:07:00] Speaker 04:
I think it was, Your Honor.

[00:07:02] Speaker 04:
The fact was the jury had been deliberating the prior afternoon.

[00:07:06] Speaker 04:
They deliberated all that morning and gone to lunch.

[00:07:09] Speaker 04:
They came back and they said they'd reviewed all the evidence and the instructions and that they were at a standstill.

[00:07:14] Speaker 02:
So did they go out that morning to deliberate?

[00:07:20] Speaker 04:
That is my understanding.

[00:07:21] Speaker 04:
If you look at the transcript, it reflects that they had taken their lunch break when they came back with the second note saying that they were at a standstill.

[00:07:29] Speaker 01:
I thought the record said they were deliberating for half a day.

[00:07:31] Speaker 01:
Is that?

[00:07:32] Speaker 04:
I think it's unclear from the record how long they deliberated in the afternoon the day before.

[00:07:37] Speaker 01:
Well, let me ask you this.

[00:07:40] Speaker 01:
Does any instruction telling a jury to go back and deliberate if it's been for a certain short period of time amount to an Allen charge or what makes this one more like an Allen charge?

[00:07:50] Speaker 04:
I think this is more like an Allen charge for a couple of reasons.

[00:07:53] Speaker 04:
First, the fact is that while the overall time may not seem that long, compared to the amount of time that the case took, it was a significant amount of time for the jury to deliberate.

[00:08:03] Speaker 04:
They'd clearly thought through the evidence.

[00:08:04] Speaker 04:
They said that they had reviewed it.

[00:08:06] Speaker 04:
They said that they'd looked at the instructions.

[00:08:08] Speaker 04:
They said that they were at a standstill.

[00:08:10] Speaker 04:
And so what the court told them was that they should go back and think about it again, but he didn't repeat the language that I think is so critical.

[00:08:17] Speaker 04:
There are three aspects of the model jury instruction that the court omitted.

[00:08:21] Speaker 04:
He didn't tell the jury that while they had a duty to deliberate, it was only if each of you can do so without violating your individual judgment and conscience.

[00:08:30] Speaker 04:
The court didn't tell them that you should not change an honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict.

[00:08:40] Speaker 04:
And the court didn't tell them that this was not meant to rush them or pressure them into a verdict.

[00:08:45] Speaker 01:
So in a traditional Alan charge situation, the Supreme Court has said it's when the court is urging a minority view to consider the majority view.

[00:08:55] Speaker 01:
And we don't have that here either.

[00:08:58] Speaker 04:
We don't, but I don't think there's any case that is held that it is required, for example.

[00:09:02] Speaker 04:
While it's certainly deemed a factor in the scale of reversal, if, for example, the court knows what the split is and the instruction fields aimed at particular jurors, that doesn't mean that it made it proper here, particularly over the defense's objection.

[00:09:16] Speaker 04:
And we think that issue is relevant both because it underscores the prejudice of the other errors at trial and as an independent basis for the

[00:09:24] Speaker 01:
Well, so assuming we agreed with you that this was an Allen instruction, what makes it coercive under a totality of the circumstances?

[00:09:32] Speaker 04:
The form of the instruction.

[00:09:34] Speaker 01:
The absence of mitigating language, is that the only thing?

[00:09:38] Speaker 04:
No, I think it's also if your court looks at the amount of time that the jury spent.

[00:09:43] Speaker 04:
The court's asked to consider the amount of time spent deliberating before, the amount of time spent deliberating after.

[00:09:49] Speaker 02:
When did they start deliberating?

[00:09:51] Speaker 04:
They started deliberating.

[00:09:52] Speaker 02:
Do we know when the judge submitted the case to the jury and the jury went back to deliberate?

[00:09:57] Speaker 02:
I don't believe we have a specific time.

[00:09:58] Speaker 04:
Do we know exactly when that happened?

[00:09:59] Speaker 04:
No, we know that it was the afternoon before, but I don't know.

[00:10:02] Speaker 02:
It was the afternoon before?

[00:10:04] Speaker 02:
Yes.

[00:10:04] Speaker 02:
So they heard argument.

[00:10:08] Speaker 02:
The afternoon before yes They were fully instructed That right yes the afternoon before Judge said okay now We're in the bailiff Sent them into the jury room and they began deliberating the night before that's your understanding

[00:10:30] Speaker 01:
Yes.

[00:10:31] Speaker 01:
I mean, if that's the case, then I don't know where I got the half a day, because that would suggest a full day of deliberations rather than just half a day.

[00:10:40] Speaker 04:
I think the half day comes from a statement in the record.

[00:10:43] Speaker 02:
OK, and wait a minute.

[00:10:44] Speaker 02:
I'm not quite yet through.

[00:10:45] Speaker 02:
So they go home, apparently end of the day, and there's no verdict that day before.

[00:10:51] Speaker 02:
Correct?

[00:10:51] Speaker 02:
Is that your understanding?

[00:10:52] Speaker 00:
Yes.

[00:10:52] Speaker 02:
Correct.

[00:10:53] Speaker 02:
So the judge sends them home and says, no discussion of the case, blah, blah, blah.

[00:10:56] Speaker 02:
Come back tomorrow morning and resume your deliberations.

[00:11:01] Speaker 02:
Then they go back the next day, and they start deliberating again.

[00:11:05] Speaker 02:
Lunch rolls around.

[00:11:08] Speaker 02:
They're released for lunch with the usual admonitions.

[00:11:11] Speaker 02:
Is that your understanding?

[00:11:14] Speaker 04:
So I don't believe the admonitions are on the record, but there's a note in the transcript that they were given a lunch break.

[00:11:22] Speaker 02:
OK.

[00:11:23] Speaker 02:
And all this business about them not reaching a verdict had not yet arisen.

[00:11:27] Speaker 02:
Correct.

[00:11:28] Speaker 02:
My understanding is that it occurred after.

[00:11:28] Speaker 02:
OK, so they go out and have their lunch.

[00:11:31] Speaker 02:
Yes.

[00:11:31] Speaker 02:
and they're gone for maybe an hour, hour and a half.

[00:11:34] Speaker 02:
Then they come back, go back into the jury room, and they continue to deliberate, right?

[00:11:40] Speaker 02:
And then they send the judge a note.

[00:11:42] Speaker 02:
Is that the first note they send the judge?

[00:11:43] Speaker 04:
No, they send a note earlier.

[00:11:45] Speaker 04:
What was the earlier note?

[00:11:47] Speaker 04:
That was a note asking to hear the recordings.

[00:11:49] Speaker 02:
OK.

[00:11:49] Speaker 04:
They asked to hear recording 10, but heard both recordings, the dispatcher and the 9-1.

[00:11:53] Speaker 02:
In any event, they go to lunch.

[00:11:55] Speaker 02:
They come back, deliberate more.

[00:11:58] Speaker 04:
Again, it's unclear from the record, but it appears that it's unclear when the note came out.

[00:12:03] Speaker 02:
Okay, so when the note comes out and then we have this colloquy, the judge sends them back in.

[00:12:10] Speaker 02:
And do we know how long they're back in?

[00:12:12] Speaker 04:
It is not in the record.

[00:12:14] Speaker 04:
We know that it terminated that day, that afternoon, and that they were scheduled to stop at, I believe, 330.

[00:12:22] Speaker 04:
But we don't know more than that.

[00:12:24] Speaker 02:
Was that the judge's hours for the trial?

[00:12:26] Speaker 04:
That is my understanding.

[00:12:27] Speaker 04:
In the transcript, it reflects that they were supposed to stop at 330, and that counsel were supposed to either come back or they would let the jury go for the trial.

[00:12:36] Speaker 02:
Let me ask you this.

[00:12:36] Speaker 02:
Suppose all of this happened before lunch.

[00:12:40] Speaker 02:
And the judge said, hmm, you're hung.

[00:12:45] Speaker 02:
I want you to go out and have lunch.

[00:12:47] Speaker 02:
Think about the evidence.

[00:12:48] Speaker 02:
Think about the instructions and whatnot.

[00:12:53] Speaker 02:
Come back and go into the jury room and continue to deliberate.

[00:12:55] Speaker 02:
And then let me know what happened.

[00:12:57] Speaker 02:
You know, were you able to reach a verdict or not?

[00:13:00] Speaker 02:
Now, is that an Alan instruction?

[00:13:02] Speaker 02:
I mean, is that?

[00:13:03] Speaker 02:
I mean, you know, we use Alan, the term Alan, loosely.

[00:13:06] Speaker 02:
It's kind of a generic term that we use for all these kinds of situations.

[00:13:10] Speaker 02:
But is that, would that be problematic on your part?

[00:13:14] Speaker 04:
I think it might be.

[00:13:15] Speaker 02:
I think what distinguishes- I think you do that a lot.

[00:13:17] Speaker 02:
I'd get jury verdicts.

[00:13:19] Speaker 02:
I'd get jury notes that say, we're hung.

[00:13:22] Speaker 02:
We can't reach a verdict.

[00:13:23] Speaker 02:
And I'd say, well, go home and sleep on it.

[00:13:25] Speaker 02:
Is that coercive?

[00:13:27] Speaker 04:
I think here what distinguishes it, and the language is at 3ER575, is the court said, well, look, this would be too soon to ever declare a mistrial.

[00:13:35] Speaker 04:
I'm going to send you back.

[00:13:36] Speaker 04:
If it helps, look very, very carefully at the evidence, very carefully at the instructions, and see if that helps.

[00:13:41] Speaker 04:
But at this time, I'm not going to be declaring a mistrial at this time.

[00:13:46] Speaker 04:
So I think, again, I agree the court has used Allen's instruction broadly.

[00:13:53] Speaker 04:
We do think that this was coercive and it was inappropriate here.

[00:13:56] Speaker 04:
It was done over the defense's objection.

[00:13:59] Speaker 04:
I see I'm very short on my time.

[00:14:00] Speaker 04:
If I might raise one point.

[00:14:02] Speaker 04:
I'm sorry.

[00:14:02] Speaker 04:
Go ahead.

[00:14:03] Speaker 04:
Go ahead.

[00:14:03] Speaker 03:
I want to ask one follow-up about this.

[00:14:05] Speaker 03:
In fact, the jury did not say it was hung.

[00:14:08] Speaker 03:
We are at a standstill.

[00:14:11] Speaker 03:
Is that the same thing as we're hung?

[00:14:13] Speaker 03:
We can't possibly make a decision.

[00:14:15] Speaker 03:
They said we're at a standstill even after discussing and going through all the evidence.

[00:14:20] Speaker 03:
So you're saying with that kind of inquiry, the judge can't say, go back and review all the evidence and the instructions and see if that'll help you?

[00:14:28] Speaker 03:
That's improper?

[00:14:29] Speaker 04:
I think it could have if it had included the proper language that would not force a result.

[00:14:34] Speaker 04:
I think that that is a different question than the instruction that was given here.

[00:14:38] Speaker 04:
If I might raise one point about the DNA, as I see my time is running very short.

[00:14:42] Speaker 04:
With respect to the DNA, I just wanted to point out that in this case, it's absolutely clear that the court did not actually make a finding of reliability.

[00:14:51] Speaker 04:
This evidence was challenged under Daubert.

[00:14:53] Speaker 04:
They raised the NIST draft report that pointed out that there was not enough publicly available data to enable an external independent assessment of reliability.

[00:15:01] Speaker 04:
And in this case, and this also goes to the issue of the continuance, the government only disclosed clearly a week before trial, or shortly before trial.

[00:15:11] Speaker 04:
that there had been a collision with the samples that compromised the ability to do the analysis.

[00:15:19] Speaker 04:
I will submit on the other issues and reserve, I think, 13 seconds of my time.

[00:15:24] Speaker 03:
Matt, I want to ask one question about this DNA issue.

[00:15:27] Speaker 03:
Did the defense preserve the issue of whether reliance on that software was appropriate?

[00:15:35] Speaker 03:
I'm sorry.

[00:15:36] Speaker 03:
The software that the expert used?

[00:15:39] Speaker 04:
Yes, I think that they did.

[00:15:40] Speaker 04:
If the court looks at it, they raised the Daubert challenge, and they pointed out, you know, the whole NIST draft report is about the propriety of the software, and they quoted from it in that, and it was CR 115.

[00:15:52] Speaker 04:
I believe it was attached as Exhibit 2, and I think the critical language is at page 75, but I will verify that for the panel.

[00:15:58] Speaker 04:
Thank you.

[00:15:59] Speaker 04:
Thank you.

[00:16:10] Speaker 00:
Good morning, your honors.

[00:16:11] Speaker 00:
David Freeman from the United States.

[00:16:13] Speaker 00:
May it please the court.

[00:16:15] Speaker 00:
I'll start by addressing the Allen charge, which was the focus of the defense's argument.

[00:16:21] Speaker 00:
In our view, whether this is characterized as an Allen charge or not, it was not unduly coercive, and the district court did not abuse its discretion in giving this instruction.

[00:16:29] Speaker 00:
All it said was, look very, very carefully at the evidence, very carefully at the instructions, and see if that helps.

[00:16:37] Speaker 00:
That was the- That's a little bit more than that.

[00:16:39] Speaker 00:
I believe he went on and said, you've only been deliberating for around half a day, and it's too early to declare a mistrial.

[00:16:45] Speaker 00:
But it was.

[00:16:45] Speaker 02:
What does that tell the jury?

[00:16:48] Speaker 00:
I think it tells the jury they need to deliberate a little bit longer before he's going to declare a mistrial.

[00:16:53] Speaker 00:
But it was, I would note, as Judge Sanchez noted, it was less coercive than the model instruction in some ways.

[00:16:59] Speaker 00:
The model instruction says, you should not hesitate

[00:17:05] Speaker 00:
or to re-examine your own views and change your opinion if you become persuaded that it is wrong.

[00:17:10] Speaker 00:
And that is somewhat coercive because it is suggesting that there's a deadlock, the jurors who are disagreeing to change their minds.

[00:17:16] Speaker 02:
That was not given here.

[00:17:20] Speaker 00:
I don't think it's a little bit too tough.

[00:17:22] Speaker 00:
I think this one, you know, it omitted the part that said don't change an honest belief, just reach a verdict, but this court's instruction didn't say you shouldn't hesitate to reexamine your views.

[00:17:33] Speaker 00:
And I think on these facts, what the district court said about the timing was that it had only been around a half a day.

[00:17:39] Speaker 00:
Unfortunately, the transcript doesn't have timestamps and the notes don't either.

[00:17:43] Speaker 00:
So that's what- Were you the trial counsel?

[00:17:45] Speaker 00:
I was, yes.

[00:17:46] Speaker 00:
Do you remember?

[00:17:48] Speaker 00:
I recall that the jury started deliberating very late on the afternoon of September 29th.

[00:17:54] Speaker 02:
They came back that- Fully instructed and they were sent in to deliberate.

[00:17:59] Speaker 00:
Yes.

[00:17:59] Speaker 00:
It was a full afternoon.

[00:18:00] Speaker 00:
There were several witnesses.

[00:18:01] Speaker 00:
There was closings.

[00:18:02] Speaker 00:
There was then instructions.

[00:18:04] Speaker 00:
They then went out for a short period of time.

[00:18:06] Speaker 00:
They started deliberating.

[00:18:08] Speaker 00:
They came back.

[00:18:09] Speaker 00:
They deliberated the entire morning of September 30th.

[00:18:11] Speaker 00:
They did have lunch.

[00:18:13] Speaker 00:
And then they sent the note in my recollection shortly after lunch.

[00:18:18] Speaker 00:
They were instructed and a few hours later they came back with the verdict.

[00:18:22] Speaker 00:
So I believe it was around half a day and then a few hours after they returned the verdict.

[00:18:26] Speaker 01:
What about Judge Lynn's question?

[00:18:27] Speaker 01:
Is there a difference between a standstill and jury deadlock in your mind?

[00:18:32] Speaker 00:
I think there is, you know, the jury didn't say we, they said they're at a standstill, we've looked through all the evidence, they didn't say we can't reach a verdict, they didn't say there's no further deliberations would be helpful.

[00:18:42] Speaker 00:
So I do think in this type of case, it would be appropriate for the judge to say, you know, just try a little bit harder, look very, very carefully at the evidence, see if that helps.

[00:18:50] Speaker 00:
And that's how he phrased it, see if that helps.

[00:18:52] Speaker 00:
He didn't say, you know, don't come back until you have a verdict.

[00:18:55] Speaker 02:
Well, he already told them that, didn't he, when he instructed them?

[00:18:59] Speaker 02:
in terms of don't change your- Look at, read all, consider all the evidence.

[00:19:03] Speaker 02:
I mean, there's some general instructions that go in.

[00:19:05] Speaker 02:
You know, they're part of every set of instructions about viewing the evidence and considering the evidence.

[00:19:11] Speaker 00:
That's correct.

[00:19:12] Speaker 00:
But this court has not said it's inappropriate to give this type of instruction, particularly when it's only been a few hours.

[00:19:18] Speaker 00:
And I think if you look at the timing here, when they deliver- What's the best case?

[00:19:23] Speaker 02:
What's the best Ninth Circuit case that kind of supports your view that there's nothing coercive about this?

[00:19:28] Speaker 00:
I think Das and Hernandez are the two cases we rely on, and those cases were both very similar.

[00:19:33] Speaker 00:
Hernandez actually was another case where, again, the instruction in that case didn't mention, it didn't tell the juries, you shouldn't hesitate to reexamine your own views, and this court looked upon that favorably.

[00:19:46] Speaker 00:
And I think that instruction was actually a bit more coercive.

[00:19:49] Speaker 00:
The judge told the jury, you know,

[00:19:51] Speaker 00:
If you don't reach a verdict, we're going to have to have another trial.

[00:19:54] Speaker 00:
And I think here that was only implied.

[00:19:56] Speaker 00:
He said, you know, it's too early to declare a mistrial.

[00:19:59] Speaker 00:
So looking at Das and Hernandez, both had similar timing, just a couple hours of deliberating before the instruction.

[00:20:04] Speaker 00:
And then I believe in those cases, it was actually shorter.

[00:20:07] Speaker 00:
One of them, the jury came back 40 minutes after.

[00:20:10] Speaker 00:
You know, this court said that wasn't coercive because usually with an Allen instruction, this court is looking for

[00:20:17] Speaker 00:
very more more course of conduct like where the judge asked about the split looks into asked you know what's the divide or the judge says it's going to be very expensive to hold a retrial and there was nothing like that here and ultimately what if we were to assume that this qualifies in as an allen chart generally speaking i mean we use that term allen very loosely our case law says you know it's kind of a generic term we just

[00:20:42] Speaker 02:
in these kinds of situations, we call it an analogy.

[00:20:44] Speaker 02:
What if we were to assume, you know, our case law says you look to several other factors, the text of the words, the, there are two other factors, the time, the deliberation, there's one other one.

[00:21:00] Speaker 00:
I think it's the form of the instruction, the timing, and then other indicia of coerciveness are the three.

[00:21:04] Speaker 02:
How would you address those issues?

[00:21:08] Speaker 00:
Again, I think if you characterize this as an island charge, which this court could, under those factors, it was not coercive, it was not an abuse of discretion.

[00:21:15] Speaker 00:
Again, if you look at DOS, because the form of the instruction was neutral.

[00:21:21] Speaker 00:
The judge just said, look at the evidence very carefully.

[00:21:23] Speaker 00:
And the timing doesn't suggest coercion.

[00:21:26] Speaker 00:
With timing, this court is looking for a very long period of deliberation followed by a short response, an immediate verdict after the instruction.

[00:21:36] Speaker 00:
That's not what happened here.

[00:21:37] Speaker 00:
There was a half day of deliberations.

[00:21:41] Speaker 00:
The jury was out for a couple hours after the instruction.

[00:21:43] Speaker 00:
In other indicia of coercion, what Hernandez

[00:21:46] Speaker 00:
sort of what Hernandez highlighted was inquiring into the division, because that suggests the holdout should change their mind, or telling the jury that it's going to be really expensive to hold another child, doing something that suggests the jury really needs to reach a verdict.

[00:22:00] Speaker 00:
And on this record, even if this court might have handled it differently, I don't think it was an abuse of discretion.

[00:22:06] Speaker 00:
The judge does have a lot of discretion in this area.

[00:22:11] Speaker 00:
If there are no other questions on that, I just wanted to briefly address the mistake, the error that happened in playing the call.

[00:22:18] Speaker 00:
I was trial counsel.

[00:22:19] Speaker 00:
I made this mistake.

[00:22:21] Speaker 00:
We apologize below.

[00:22:22] Speaker 00:
We'll apologize again.

[00:22:24] Speaker 00:
But I will say two things about this mistake in playing the 911 call.

[00:22:28] Speaker 00:
One is that it was inadvertent, and two, it was harmless.

[00:22:31] Speaker 00:
And just on the inadvertent part,

[00:22:35] Speaker 00:
The reason this happened was, of course, our fault, but this judge is somewhat unique in that he gives you the motion to eliminate rulings right before jury inflection.

[00:22:44] Speaker 00:
So we showed up with the recording ready to play.

[00:22:46] Speaker 00:
We didn't have time to recut it.

[00:22:48] Speaker 00:
During trial, we tried to basically skip past the excluded statement.

[00:22:52] Speaker 00:
That's at page 162 of the record.

[00:22:54] Speaker 00:
There was a technical error.

[00:22:55] Speaker 00:
And we stopped putting the recording as soon as we realized what had happened.

[00:23:00] Speaker 00:
What the judge said at page 249 is that it wasn't clear the jury had actually heard the excluded part of the statement, and there was a rolling transcript, and I believe the statement was visible for what he said was a fleeting glimpse on the screen, so they probably- Why not give a curative instruction on top of that?

[00:23:17] Speaker 01:
Just say, and by the way, jury, whatever, do not consider that portion of it.

[00:23:22] Speaker 00:
So defense counsel didn't request a curative instruction in this.

[00:23:25] Speaker 00:
I think this might be a case where giving a curative instruction probably would have highlighted the error for the jury.

[00:23:30] Speaker 00:
I'm not sure how we could have given a curative instruction that would have mentioned the statement again and said, you know, you just heard a statement.

[00:23:38] Speaker 00:
The defendant, I saw the defendant having a handgun disregard that.

[00:23:41] Speaker 00:
I think that probably would have

[00:23:42] Speaker 00:
made it even more prominent in their minds.

[00:23:45] Speaker 00:
But I would note, as Judge Lynn highlighted, that they did ask to hear the recording again during jury deliberations.

[00:23:52] Speaker 00:
By that time, it had been properly edited.

[00:23:54] Speaker 00:
And at the time it mattered, during deliberations, that's what they actually heard.

[00:23:58] Speaker 00:
They heard the correct version.

[00:24:01] Speaker 00:
Even apart from that, this was a 10-minute call where both victims were saying the defendant was outside shooting.

[00:24:09] Speaker 00:
I've heard two shots.

[00:24:11] Speaker 00:
I don't think it's plausible that the reason the jury returned a guilty verdict is because they also heard AA say, I think it's a handgun.

[00:24:18] Speaker 00:
I think that would at most be harmless.

[00:24:21] Speaker 00:
And I would note, the defense did move for a mistrial on this point.

[00:24:24] Speaker 00:
And they haven't even challenged that ruling on appeal.

[00:24:27] Speaker 00:
They've just sort of packaged this into their general challenge to the recordings.

[00:24:31] Speaker 02:
In terms of the other claims... Did you address the one claim that counsel didn't have an opportunity to address was the argument that sentencing

[00:24:43] Speaker 02:
doesn't really offer any explanation that one could digest and understand how he selected 120 months when defense counsel had argued for, was it seven years or six years, something like that.

[00:24:57] Speaker 03:
By the way, you keep calling that the low end of the guideline in your brief.

[00:25:01] Speaker 03:
In fact, that's the guideline, right?

[00:25:02] Speaker 03:
It's not the low end.

[00:25:03] Speaker 03:
It can't be any higher than that.

[00:25:06] Speaker 00:
Correct.

[00:25:07] Speaker 00:
To be precise, it was the low end of the first cut at the guideline.

[00:25:11] Speaker 03:
But that's not the guideline.

[00:25:12] Speaker 00:
I understand.

[00:25:13] Speaker 00:
The stat max here was 120 months, so it was the guideline range.

[00:25:17] Speaker 00:
But it was a guideline sentence.

[00:25:19] Speaker 00:
This court has said a guideline sentence does not require much explanation.

[00:25:22] Speaker 00:
I will concede there was a very brief, very short, not much explanation here.

[00:25:28] Speaker 00:
There was none.

[00:25:29] Speaker 00:
In our review, the judge did say that is a maximum.

[00:25:32] Speaker 00:
It's a low-end term under the guidelines.

[00:25:34] Speaker 00:
It's a maximum allowed.

[00:25:35] Speaker 02:
Why did he select that sentence?

[00:25:39] Speaker 00:
Well, again, it was a guideline sentence, and this court has said,

[00:25:43] Speaker 00:
A guideline sentence doesn't require much explanation.

[00:25:45] Speaker 00:
It can be inferred from the record.

[00:25:47] Speaker 00:
It does.

[00:25:48] Speaker 00:
And I think here in context, the judge's explanation was this was a case where a sentence below the guideline range was not warranted.

[00:25:55] Speaker 00:
But he didn't say that.

[00:25:56] Speaker 01:
This is the problem.

[00:25:57] Speaker 01:
And we have reversed, even under plain error, as to some basis when there's a total lack of explanation.

[00:26:05] Speaker 01:
And this is almost just the repackaging of the same point three times that the statutory max is 10 years.

[00:26:12] Speaker 01:
There isn't anything else beyond that.

[00:26:14] Speaker 01:
Why isn't this plainly erroneous?

[00:26:17] Speaker 00:
So in the cases this court has reversed, I believe Hammond's is one cited in the brief and the other one is Wachdine or Wachnini.

[00:26:25] Speaker 00:
And both of those cases, you know, this court said this was a close call at the third prong on the prejudice prong.

[00:26:31] Speaker 00:
But what was missing, what was extra in those cases was in those cases, the district court didn't even articulate the guideline range.

[00:26:36] Speaker 00:
So what this court said is we just have no way to even have any idea why the district court selected this sentence.

[00:26:43] Speaker 02:
And here, I realize it's not much, but I do think the fact that... What troubled me a little bit, I understand that district judges don't have to offer much of an explanation of what they're in the guideline range.

[00:26:54] Speaker 02:
And I understand that.

[00:26:55] Speaker 02:
That's fine.

[00:26:55] Speaker 02:
We've said that.

[00:26:56] Speaker 02:
That's okay.

[00:26:59] Speaker 02:
But the defense counsel made a credible argument for going below the guideline range.

[00:27:07] Speaker 02:
This fellow had quite a history.

[00:27:12] Speaker 00:
in terms of mitigation.

[00:27:13] Speaker 00:
Yes.

[00:27:14] Speaker 00:
Yes.

[00:27:15] Speaker 02:
And the judge just, you know, there's no response to that or anything.

[00:27:19] Speaker 02:
It's just like dead silence.

[00:27:21] Speaker 02:
Well, the district court... And you know, I know about, you know, he had quite the record.

[00:27:26] Speaker 02:
He had a number of felonies.

[00:27:30] Speaker 02:
Apparently, he'd never suffered a sentence quite as long as this one.

[00:27:34] Speaker 02:
I mean, some explanation, I think, is appropriate and needed.

[00:27:40] Speaker 00:
What this court has said is that if it can look at the record and see that the district court listened to the defendant's arguments and simply didn't find them persuasive, that's not an abuse of discretion.

[00:27:50] Speaker 00:
And here, we know the district court just wasn't, you know, this isn't a case where he just wasn't paying attention because it actually did agree with the defense counsel on several points.

[00:27:59] Speaker 00:
The defense counsel had them mitigating arguments for a below-guidelines sentence.

[00:28:02] Speaker 00:
He also, there was a guideline dispute.

[00:28:05] Speaker 00:
The district court ruled for the defendant on that.

[00:28:07] Speaker 00:
There was also an objection to supervised release condition that was raised for the first time at the sentencing hearing.

[00:28:12] Speaker 00:
The district court ruled with the defendant on that as well, and that was a hotly contested issue.

[00:28:17] Speaker 00:
So I think looking at this record, you can see the district court was paying attention.

[00:28:21] Speaker 00:
It just ultimately didn't decide.

[00:28:24] Speaker 00:
It didn't think that the arguments warranted a sentence below the guideline range for the reasons you were kind of referring to, the criminal history.

[00:28:31] Speaker 00:
And this is Plain Air Review.

[00:28:32] Speaker 00:
Defendant has the burden to show prejudice.

[00:28:35] Speaker 00:
He has the burden to show the fourth prong is met as well.

[00:28:39] Speaker 00:
I would note defense counsel made no attempt to talk about those prongs in the briefing.

[00:28:43] Speaker 00:
We raised in our answering brief.

[00:28:45] Speaker 00:
Still wasn't addressed in the reply brief.

[00:28:47] Speaker 00:
And ultimately, defendant has to show there's a reasonable probability that he would have received a lower sentence if the dish report had said more on the record.

[00:28:55] Speaker 00:
In our view, given the defendant's criminal history, given the serious nature of the offense, this wasn't just a 922-G where the gun was found in the car.

[00:29:04] Speaker 00:
There was a shooting.

[00:29:06] Speaker 00:
Given those facts, and given the fact that we know the district court was paying attention, we know the district court ruled for the defendant on certain issues, this court can't find that there was prejudice.

[00:29:16] Speaker 01:
Does the court ruling on those issues suggest that the court was aware of Mr. Russell's background in those mitigating factors that we're being advocated for?

[00:29:26] Speaker 01:
I mean, so, you know, generally paying attention to things.

[00:29:30] Speaker 03:
Didn't he say he read everything?

[00:29:31] Speaker 00:
He did.

[00:29:32] Speaker 00:
He said he'd read the papers as well, and he'd looked through everything.

[00:29:35] Speaker 00:
And this was a case where defense counsel, as you noted, presented a very fulsome argument in favor of mitigation.

[00:29:40] Speaker 00:
The parties submitted sentencing positions.

[00:29:42] Speaker 00:
So I think this record shows the district court treated this issue with care, even if he probably should have said more.

[00:29:49] Speaker 00:
But ultimately, the question is, is there a reasonable probability he would have received a different sentence?

[00:29:54] Speaker 00:
I don't think he's met that burden, and he really hasn't even tried in his briefing.

[00:29:57] Speaker 03:
I want to ask you a question about this expert testimony.

[00:30:01] Speaker 03:
The judge did not find it was reliable, correct?

[00:30:07] Speaker 03:
He said she's qualified.

[00:30:09] Speaker 03:
He didn't find that the evidence was reliable.

[00:30:11] Speaker 03:
He never made that finding.

[00:30:13] Speaker 00:
Correct.

[00:30:14] Speaker 03:
OK, so this STR mix, the only evidence in the record, questions the reliability of that.

[00:30:21] Speaker 03:
She says she's used it in her lab.

[00:30:24] Speaker 03:
But under those circumstances, this is critically important evidence, isn't it?

[00:30:29] Speaker 00:
It is.

[00:30:30] Speaker 03:
So isn't he required to make a finding that that STR mix is reliable?

[00:30:35] Speaker 00:
So I guess I want to modify my answer.

[00:30:38] Speaker 00:
He didn't say there was not an express reliability finding.

[00:30:41] Speaker 00:
He didn't say this evidence is reliable, STRMix is reliable.

[00:30:44] Speaker 00:
But there was litigation about this before the trial.

[00:30:48] Speaker 00:
The defense admitted a motion eliminated to exclude the DNA evidence on this basis that STRMix is not reliable and raised some of the arguments that are referenced in his briefing.

[00:30:58] Speaker 00:
This was pages 71 to 74 of the supplemental excerpts of record.

[00:31:03] Speaker 00:
The government filed a response, you know, arguing that this method is reliable and it's cited, among other things, the Sixth Circuit's decision and gives anterior and the district court denied that motion before trial.

[00:31:14] Speaker 00:
So this was litigated.

[00:31:15] Speaker 00:
on the papers, there was briefing about this.

[00:31:18] Speaker 00:
So in that sense, I don't think this is a case where the district court just abdicated its gatekeeping reliability.

[00:31:23] Speaker 02:
Did the district court judge just deny the motion?

[00:31:26] Speaker 02:
It did, yes.

[00:31:29] Speaker 02:
Didn't offer any kind of reasoning behind the denial?

[00:31:32] Speaker 00:
Didn't.

[00:31:33] Speaker 00:
But again, the district court saw these arguments in the papers.

[00:31:37] Speaker 00:
And the defendant does have to show prejudice here.

[00:31:39] Speaker 00:
And these arguments were presented to the district court.

[00:31:41] Speaker 00:
And he rejected them.

[00:31:42] Speaker 00:
So I don't think this is another situation where I don't think saying more

[00:31:46] Speaker 00:
would have made a difference.

[00:31:47] Speaker 00:
And he did also say she qualifies at the hearing.

[00:31:51] Speaker 00:
That's different from Ruval Cabo Garcia, where the district court, there was no pretrial briefing.

[00:31:55] Speaker 00:
And when at trial, the government said, well, you qualify this person as an expert in the district court, basically said, no, that's for the jury.

[00:32:02] Speaker 01:
If the court had found the DNA method unreliable and excluded DNA testimony, how would that affect prejudice analysis?

[00:32:11] Speaker 00:
I would say defendant would probably have a strong argument that it was a harmful error.

[00:32:17] Speaker 00:
I think it was one of our key pieces of evidence.

[00:32:19] Speaker 00:
There were other strong pieces of evidence.

[00:32:21] Speaker 00:
We had the 911 call, the 44B evidence, the fact that Officer Tejeda also saw the defendant coming from the shooting and saw his hands by the console.

[00:32:36] Speaker 00:
But I don't want to understate.

[00:32:37] Speaker 00:
I think it was an important piece of evidence.

[00:32:39] Speaker 03:
That's the only thing that puts the gun in his hands.

[00:32:42] Speaker 00:
Well, directly in his hands, I suppose.

[00:32:46] Speaker 00:
I mean, there was the Coumadin and his medication in the console.

[00:32:49] Speaker 00:
He had hidden the gun in another occasion.

[00:32:52] Speaker 00:
AA said that he was outside shooting, even though she didn't directly see it.

[00:32:56] Speaker 03:
Officer Tejeda said he had his hands... Wait, are you offering that now as substantive proof that he was shooting?

[00:33:02] Speaker 03:
The 9-1-1 call?

[00:33:04] Speaker 00:
The 9-1-1 call?

[00:33:05] Speaker 00:
Yes.

[00:33:05] Speaker 03:
Your position is that that's admissible as substantive proof that he was shooting?

[00:33:11] Speaker 00:
I apologize, it was admitted for probable cause, but yes, in terms of the other evidence I went through, the CUMITA and the other incident and the fact that Officer Dejeda saw this kind of suspicious movement.

[00:33:24] Speaker 00:
I'm far over my time.

[00:33:25] Speaker 00:
If there are any other questions, I'm happy to answer them.

[00:33:28] Speaker 00:
Thank you.

[00:33:28] Speaker 00:
Thank you, Your Honors.

[00:33:38] Speaker 04:
Thank you, Your Honors.

[00:33:38] Speaker 04:
I'll be very brief.

[00:33:39] Speaker 04:
If I might begin with addressing the sentencing issues that Judge Paia has raised.

[00:33:44] Speaker 04:
I think it's simply clear looking at the record that the district court did not consider the 355-3A factors.

[00:33:49] Speaker 04:
They were vigorously argued by defense counsel, but at the same time, the court made absolutely no findings about that.

[00:33:55] Speaker 04:
That's just clear from the record.

[00:33:56] Speaker 04:
It's nowhere in there.

[00:33:58] Speaker 04:
And there were real reasons why a below-guidelines sentence would have been appropriate here.

[00:34:02] Speaker 04:
Given the extremely abusive childhood Mr. Russell suffered, given his health conditions that the OP has been unable to care for, the fact that the sentence imposed was multiples of any sentence he'd previously suffered, all of those are reasons that are validly considered under 3553A factors.

[00:34:21] Speaker 02:
My only concern about that argument is that I think we have some cases that say if you can look at the record and

[00:34:33] Speaker 02:
sort of surmise reasonably what was motivating the district judge, then we can do that.

[00:34:42] Speaker 04:
I think Wachman and Hammons actually cut the other way and say that you can't.

[00:34:46] Speaker 04:
Like, if this court is forced to guess, even if it's pretty sure that it's guessing correctly, Mr. Russell was entitled to hear from the court as to why it was imposing the sentence did.

[00:34:55] Speaker 04:
And this court has held repeatedly that when it comes to the section 355.38 factors.

[00:34:59] Speaker 04:
Let me ask you this.

[00:34:59] Speaker 02:
Can we infer from the fact that he picked the statutory max that what he was concerned about was the defendant's criminal history record, which, you know,

[00:35:11] Speaker 04:
Quite substantial.

[00:35:13] Speaker 04:
It may have been, but we just don't know.

[00:35:15] Speaker 04:
And that's the problem.

[00:35:15] Speaker 04:
That's why they should be remanded for re-sentencing.

[00:35:18] Speaker 04:
Because if this court is forced to guess... You don't think that would be a reasonable inference on our part?

[00:35:22] Speaker 04:
I do not.

[00:35:23] Speaker 04:
I think that in this case, you know, there were real reasons to give a below-guidelines sentence here.

[00:35:30] Speaker 04:
As you asked and just confirmed the court, the defense counsel did ask for a sentence of slightly over six years, and there was no explanation given for rejecting that, even though there were valid reasons why that should be considered.

[00:35:42] Speaker 04:
I think even the government has conceded that Mr. Russell's childhood was a terrible one.

[00:35:47] Speaker 04:
If I might address just one other point with respect to the recordings, I do think it is significant that the government used both the 911 call and the dispatcher call as substantive evidence.

[00:35:59] Speaker 04:
It was part of their key evidence as long as as well as the DNA.

[00:36:03] Speaker 04:
I think all of those fall apart.

[00:36:05] Speaker 04:
All of those are things that were admitted

[00:36:07] Speaker 04:
and that either in the case of the recordings where the court's factual findings can't be squared with the legal conclusions or where the court made no findings at all with respect to Dalbert or when it came to the sentencing.

[00:36:18] Speaker 02:
Let me ask, I gather the Dalbert issue was litigated pre-trial?

[00:36:23] Speaker 04:
It was, Your Honor.

[00:36:24] Speaker 02:
And what can we take from that?

[00:36:27] Speaker 04:
I think we can take that.

[00:36:30] Speaker 02:
Was there an argument made in the pretrial motion that the methodology was unreliable?

[00:36:37] Speaker 02:
That the evidence was unreliable?

[00:36:38] Speaker 04:
They did the NIST, and they argued that it should be excluded under Dalbert and the federal rules.

[00:36:42] Speaker 02:
So can we take from that, when the district court denied the motion, that he did so because he found it reliable?

[00:36:50] Speaker 02:
Or was that guessing too much?

[00:36:51] Speaker 04:
I think, again, it's guessing too much, and this Court has held in other instances that what the Court needs to do is to make an explicit finding of reliability.

[00:36:59] Speaker 01:
What's your best case for that?

[00:37:00] Speaker 04:
Ruba Calvo, Your Honor.

[00:37:03] Speaker 04:
Although there are others as well that we cite in our brief.

[00:37:05] Speaker 04:
And I see that I'm well over my time.

[00:37:06] Speaker 04:
I'm certainly happy to answer other questions.

[00:37:07] Speaker 01:
Let me see if there are any other questions.

[00:37:09] Speaker 01:
No.

[00:37:09] Speaker 01:
Thank you very much.

[00:37:10] Speaker 01:
Thank you.

[00:37:12] Speaker 01:
I want to thank counsel for their helpful arguments.

[00:37:15] Speaker 01:
The matter will stand submitted.