[00:00:01] Speaker 06:
All right, before you begin, I understand that Council for Mr. Tom, Mr. Tagaloa, and Mr. Pinkney have decided to divide their time.

[00:00:13] Speaker 06:
And Mr. Isaacson, you have 13 minutes.

[00:00:16] Speaker 06:
Ms.

[00:00:17] Speaker 06:
Dotson, you have 10 minutes.

[00:00:18] Speaker 06:
And Mr. Kimura, you have seven minutes.

[00:00:20] Speaker 06:
Is that your understanding?

[00:00:22] Speaker 06:
Okay.

[00:00:23] Speaker 06:
So you'll have that total for presenting oral and then rebuttal.

[00:00:27] Speaker 06:
Okay?

[00:00:27] Speaker 06:
Thank you.

[00:00:28] Speaker 06:
You may proceed, Mr. Isaacson.

[00:00:34] Speaker 01:
Thank you, Your Honor.

[00:00:35] Speaker 01:
May it please the Court.

[00:00:36] Speaker 01:
My name is Lars Isaacson.

[00:00:38] Speaker 01:
I represent Mr. Tom.

[00:00:40] Speaker 01:
I would like to reserve two minutes, if I may, for rebuttal in this case.

[00:00:46] Speaker 01:
If I'd like to proceed, if I could, to the Sixth Amendment argument that we make, one of the issues that we have here, I think it depends on whether or not the exhibits, the picnic recordings and the other exhibits are testimonial.

[00:01:04] Speaker 01:
The government is arguing they're not testimonial, but I suggest under the law that we have in regard to Crawford, they are certainly testimonial.

[00:01:13] Speaker 01:
And under the Latu case, they are interviews or to begin, they are Mr. 23 is the questionnaire of Tagliola.

[00:01:25] Speaker 01:
7171 E or the interview of the DPS of Mr Tagliola.

[00:01:32] Speaker 01:
Uh, then we have from 77 a all the way up to 77 K. These were all interviews by the FBI of Mr Pinkney following the lot to in the Supreme Court precedent.

[00:01:45] Speaker 01:
I think these are testimonial doing on their face.

[00:01:50] Speaker 01:
So if they're testimony on their face, then the only way they're not prohibited under the Sixth Amendment is if they are somehow not hearsay.

[00:02:01] Speaker 01:
Because everything else here, and we've talked about the Esparza case, you have somebody coming in, giving testimony that's introduced at trial, cannot cross examine, it is decided to be testimonial, it simply cannot be admitted.

[00:02:15] Speaker 05:
But Council, ordinarily hearsay is defined as out of court statements that are testimonial, that are meant to establish the truth of the matter asserted.

[00:02:27] Speaker 05:
And here, for the most part, the statements were offered to prove that they were false rather than true.

[00:02:34] Speaker 05:
So it seems to me they might not be covered.

[00:02:38] Speaker 01:
Your Honor, if I may, I think that is not correct, if I may talk about what that is.

[00:02:43] Speaker 05:
Which half?

[00:02:44] Speaker 05:
The factual half or the legal half?

[00:02:47] Speaker 01:
Maybe both, if I can.

[00:02:49] Speaker 01:
So in breaking down, we sent up to the recordings, which you all have, of these statements.

[00:02:56] Speaker 01:
The ones that we have, first off, the questionnaire Tagaloa, sorry for messing up his name.

[00:03:03] Speaker 01:
That's the one that was de-admitted in that case.

[00:03:06] Speaker 01:
Certainly talks about Sergeant Tom supervising the use of force, which the government used.

[00:03:12] Speaker 01:
That's not falsity.

[00:03:13] Speaker 01:
That's used to be truth with a matter asserted.

[00:03:15] Speaker 01:
They're saying that's what happened.

[00:03:17] Speaker 01:
In regard to Mr. Tagaloa's statements about at the disciplinary hearing, that may or may not be really relevant in terms of that may be falsity as the government claims.

[00:03:29] Speaker 01:
But 77A, C, and the other ones are exactly the opposite.

[00:03:32] Speaker 01:
These are ones which the government has said, oh, they're the recordings of Mr. Pinckney by the FBI.

[00:03:38] Speaker 01:
And those are the ones which talked about, oh, you went over to Mr. Tom's house.

[00:03:43] Speaker 01:
You went over there to talk about what was going on in the case.

[00:03:46] Speaker 01:
You took a video of what happened in Mr. Tom's case, didn't you, sir?

[00:03:50] Speaker 01:
Didn't you?

[00:03:50] Speaker 01:
You were kind of nervous about it.

[00:03:53] Speaker 01:
That's one of the things in the eclipse that was done.

[00:03:56] Speaker 01:
And these are, so 77, AC, G, the other ones, I and this.

[00:04:02] Speaker 01:
So talking about the recording of the meetings, these are not done for the falsity.

[00:04:07] Speaker 01:
This is a big part of the government's case.

[00:04:09] Speaker 01:
And how do we know that?

[00:04:11] Speaker 01:
Because they argued it to closing.

[00:04:13] Speaker 01:
One of the issues that we have in this case, these exhibits we talked about right here were introduced only against Pinkney, not against my client.

[00:04:23] Speaker 01:
And it was important enough for them to talk at closing, oh, look how these guys are all getting together.

[00:04:28] Speaker 01:
You'll notice they played one of these excerpts from Mr. Pinkney showing how all the defendants were guilty.

[00:04:35] Speaker 01:
So these were not used to prove falsity.

[00:04:38] Speaker 01:
They're used for the government's own purpose to show, oh, this is all true.

[00:04:42] Speaker 01:
He went over to his house.

[00:04:44] Speaker 01:
They all got together.

[00:04:45] Speaker 01:
And so that's a big part of the government's case.

[00:04:47] Speaker 01:
So it's not for the falsity.

[00:04:50] Speaker 01:
I mean, I might suggest when the initial 71D when Miss Tagalua says, oh, I didn't hit anybody, okay, maybe that one fits into that description.

[00:05:00] Speaker 01:
But not when the government, not the rest of these, where Mr. Pinning is being interviewed, oh, I went over to Mr. Tom's house.

[00:05:07] Speaker 01:
Oh, we talked about all this kind of stuff.

[00:05:09] Speaker 01:
And the government used that during closing against my client.

[00:05:13] Speaker 06:
I think that goes more to severance than it does to hearsay, because it was used to show the falsity of Mr. Pickney's statement, correct?

[00:05:24] Speaker 06:
You're arguing, oh, that sort of tainted my client because he was on trial with them.

[00:05:29] Speaker 06:
Am I understanding that correctly?

[00:05:31] Speaker 01:
No.

[00:05:32] Speaker 01:
In the closing argument, this was used to say, oh, these guys are all getting together.

[00:05:35] Speaker 01:
They're all doing conspiracy.

[00:05:37] Speaker 01:
They're all conspiring together.

[00:05:38] Speaker 06:
That's what they were charged with.

[00:05:42] Speaker 06:
I'm trying to figure out how that's not still an exception to the hearsay, you know, because you haven't showed me how that isn't still an exception to the hearsay.

[00:05:53] Speaker 01:
Oh, I'm not, I'm talking about confrontation clause.

[00:05:56] Speaker 01:
That's what I'm talking about right now.

[00:05:57] Speaker 01:
In terms of, in this case, we have a situation, it is a, sorry.

[00:06:08] Speaker 01:
Under confrontation cause, evidence is forbidden to come in if it's a testimonial statement unless the witness is unavailable and the defendant had a chance to cross before.

[00:06:20] Speaker 01:
I suggest these are testimonial statements in the context in which they were made in front of under oath at a hearing, interviews with FBI agents.

[00:06:27] Speaker 01:
These are testimonial issues.

[00:06:29] Speaker 01:
If that is correct, then we're almost done in terms of this section of the case because it should not have come in.

[00:06:37] Speaker 01:
I mean, so here say it doesn't matter under the confrontation clause under Crawford because the sixth amendment trumps the rules of evidence.

[00:06:46] Speaker 01:
That's the records that we have.

[00:06:48] Speaker 01:
So if you don't pass the confrontation clause, the rules of evidence do not trump the United States Constitution.

[00:06:56] Speaker 01:
So that's where I'm coming at from here.

[00:07:00] Speaker 05:
So you think that a statement that is offered to prove that the matter asserted is false is testimonial hearsay to which the confrontation clause applies?

[00:07:14] Speaker 05:
I'm trying to get to the legal piece, because you said earlier that I was wrong about both.

[00:07:20] Speaker 01:
So I want to hit you.

[00:07:22] Speaker 05:
No, no.

[00:07:23] Speaker 05:
I've been wrong many times.

[00:07:26] Speaker 01:
My point is this.

[00:07:27] Speaker 01:
They say in regard to the statements when Mr. Tagalois said, oh, I never use my legs.

[00:07:34] Speaker 05:
Yeah, he denied kicking in the face.

[00:07:36] Speaker 01:
So that could be, I think that maybe that one might sense.

[00:07:39] Speaker 01:
Because you are saying you're not trying to prove the truth of that, but actually that the falsity of, oh, he's lying.

[00:07:47] Speaker 01:
And I kind of get that.

[00:07:47] Speaker 01:
I get that argument.

[00:07:49] Speaker 01:
But these other ones, the big ones about Mr. Pinckney and the ones that was read to the jury at closing, they're not for falsity.

[00:07:56] Speaker 01:
Therefore, the truth of it, you went to Tom's house.

[00:08:00] Speaker 01:
You talked to Tom.

[00:08:01] Speaker 01:
He played the video for you.

[00:08:03] Speaker 01:
These are all things the government is seeking to be true.

[00:08:08] Speaker 01:
Not false, true.

[00:08:10] Speaker 01:
That what Pickney said is something that the meeting took place.

[00:08:14] Speaker 01:
They actually talked.

[00:08:15] Speaker 01:
Then Pickney was concerned he had butterflies in his stomach, which had that effect.

[00:08:20] Speaker 01:
These are things the government used at closing.

[00:08:23] Speaker 03:
So you agree that 71C and 71E were offered by the government to show that he lied?

[00:08:30] Speaker 03:
You agreed?

[00:08:31] Speaker 01:
Hard for me to concede at any point, Your Honor, but in terms of whether or not... Well, sometimes it's a good idea to concede.

[00:08:38] Speaker 01:
Well, I think...

[00:08:46] Speaker 01:
Sorry, so the answer to the question, I think that fairly could be used to say falsity, to prove falsity.

[00:08:53] Speaker 06:
So let's look at exhibit 77G.

[00:08:55] Speaker 06:
It's a video recording in which Mr. Pickney admits that he saw the recording taken by Mr. Tom at Tom's house.

[00:09:06] Speaker 06:
Right.

[00:09:06] Speaker 06:
It seems to be arguably introduced in order to prove falsity of Mr. Pickney's statement in exhibit 77A that he first saw the video months and months, maybe years later.

[00:09:22] Speaker 06:
So why isn't that allowable to come in?

[00:09:29] Speaker 01:
So in regard to 77, was G?

[00:09:32] Speaker 01:
So 77G is an audio.

[00:09:35] Speaker 01:
It's a video.

[00:09:38] Speaker 01:
Okay.

[00:09:39] Speaker 01:
But the problem we have is that it's not just used, maybe that was one purpose perhaps, but it was also used by the government during closing as their big closing argument against, you know, it wasn't just for that.

[00:09:51] Speaker 01:
By the way, the purpose of it being introduced as non-hearsay, I filed yesterday a supplement.

[00:09:56] Speaker 01:
I wanted to be fair.

[00:09:59] Speaker 01:
Because the government did say, oh, it's not hearsay.

[00:10:02] Speaker 01:
But there was no explanation.

[00:10:04] Speaker 01:
as to why I was not here.

[00:10:05] Speaker 01:
So there's no discussion, oh, it's because of this, because of this, because of this.

[00:10:10] Speaker 01:
And now only now, and there was really no ruling on it, certainly no instruction to the jury as to disregard this or disregard that.

[00:10:18] Speaker 01:
So now to say, and to kind of comb back, what is it, flyspeck, is that the right word, to try to shoehorn this into something else, when I suggest clearly all these statements were used and argued to the jury as why my client was guilty.

[00:10:33] Speaker 01:
The government concedes that these things were entered against Pinkney only, not against my client, but were used by the government to argue my client was guilty.

[00:10:44] Speaker 06:
Did you reserve the balance of your time?

[00:10:47] Speaker 01:
Am I done?

[00:10:47] Speaker 01:
All right.

[00:10:48] Speaker 06:
Well, you're down to three minutes or two minutes and 56 seconds.

[00:10:53] Speaker 06:
It's 2.55 now.

[00:10:54] Speaker 06:
Do you want to reserve the balance of your time?

[00:10:57] Speaker 01:
No, I do want to say one thing.

[00:11:00] Speaker 01:
I'll be very brief.

[00:11:01] Speaker 01:
I think the prosecutorial misconduct issue is important.

[00:11:05] Speaker 01:
I know that something is wrong with time.

[00:11:07] Speaker 01:
I'll just say this.

[00:11:08] Speaker 01:
Our Sanchez case talks about no expressing opinion or defendant's guilt or their credibility in witnesses.

[00:11:15] Speaker 01:
We have other cases as well.

[00:11:17] Speaker 01:
In this case, saying my client was so immoral, he would blackmail the warden.

[00:11:25] Speaker 01:
When he says, the prosecutor says, I think it's a pretty big deal.

[00:11:28] Speaker 01:
When evidence shows the defendant just lied under oath, that's a problem.

[00:11:32] Speaker 05:
But he's referring to the evidence.

[00:11:34] Speaker 05:
He says the evidence shows that.

[00:11:37] Speaker 01:
Well, it's still his opinion.

[00:11:38] Speaker 01:
I think.

[00:11:39] Speaker 01:
He said, I think.

[00:11:40] Speaker 01:
It's a pretty big deal.

[00:11:42] Speaker 01:
That shows the defendant just lied again, calling him a liar.

[00:11:45] Speaker 03:
And just to be clear, there was no objection, right?

[00:11:48] Speaker 03:
No objection.

[00:11:48] Speaker 03:
Okay.

[00:11:48] Speaker 03:
So the standard is plain error?

[00:11:51] Speaker 03:
It is.

[00:11:52] Speaker 01:
Appealed to the Constitution, mere scrap of paper unless the jurors like you convict.

[00:11:59] Speaker 01:
Enforcing constitutional rights by finding the defendant guilty.

[00:12:02] Speaker 01:
Excessive force if you find it your duty under the Constitution to convict.

[00:12:07] Speaker 01:
on the crazy decimation, which I have yet to figure out what that means and why it's relevant in this case.

[00:12:14] Speaker 01:
I would suggest that based on all that prosecutorial misconduct in the closing argument.

[00:12:18] Speaker 01:
Thank you.

[00:12:22] Speaker 01:
Thank you.

[00:12:23] Speaker 01:
Oh, sorry.

[00:12:41] Speaker 04:
Good morning, Your Honors.

[00:12:42] Speaker 04:
Deanna Dotsing representing Appellate Jason Tagalowa, and I'd like to reserve at least one minute for rebuttal.

[00:12:52] Speaker 04:
Okay.

[00:12:53] Speaker 04:
My argument is going to be about the false testimony of Jordan DeMato.

[00:12:59] Speaker 04:
He's the one that was the main

[00:13:02] Speaker 04:
witness against all, actually all three of the defendants.

[00:13:08] Speaker 04:
But he didn't testify truthfully.

[00:13:11] Speaker 04:
He testified according to what the government wanted him to say.

[00:13:14] Speaker 04:
And I'd like to just go back in the record.

[00:13:19] Speaker 04:
in the last day of redirect by the government, he asked him to, what did he agree to, in generally speaking, of paragraph 21, and that was in his plea agreement, and he said to be truthful.

[00:13:32] Speaker 04:
And then one of the government defense, I mean, excuse me, defense attorneys said, I'm going to object.

[00:13:41] Speaker 04:
Well, then, De Matos said, I'm sorry.

[00:13:47] Speaker 04:
to agree with the government.

[00:13:49] Speaker 04:
So I think that Demata thought that he was objecting to what he had said to be truthful.

[00:13:54] Speaker 04:
But that particular statement I don't think was heard by the jury at all because it was said during this objection.

[00:14:01] Speaker 04:
We've got the prosecution saying, the attorney talking, the court talking.

[00:14:06] Speaker 04:
But that was a very important statement because that's really what he was doing.

[00:14:11] Speaker 04:
The government wrote his plea agreement.

[00:14:13] Speaker 04:
The government had him testify at the grand jury as the only one that testified, and he testified to all the things that he testified during the trial.

[00:14:24] Speaker 04:
And was there an objection made?

[00:14:27] Speaker 04:
Objection made.

[00:14:29] Speaker 04:
Yes, in the objection to that statement?

[00:14:31] Speaker 04:
Yes.

[00:14:32] Speaker 04:
Yes, that's what the government, I mean the prosecutor, Mr. Hoke actually was the government for, I mean the attorney for Mr. Tom, he objected to what he was being said.

[00:14:46] Speaker 04:
And then the government just then was able to re-ask that question.

[00:14:53] Speaker 04:
And so then he testified again, you know, to be truthful.

[00:14:57] Speaker 04:
So he wasn't able to get that in.

[00:14:59] Speaker 04:
And then Mr. Tagalora's attorney asked if he could recross on that statement that Mr. Demata said, and the court denied him that.

[00:15:11] Speaker 04:
Even though that was new information and he had the right to recross, he was denied that in the record.

[00:15:18] Speaker 04:
And so he wasn't able to go forward with that.

[00:15:21] Speaker 06:
I guess I want to make sure I understand.

[00:15:23] Speaker 06:
Is this the napoo claim you're talking about right now?

[00:15:26] Speaker 06:
I'm trying to figure out which statement you're talking about from DeMato's testimony.

[00:15:31] Speaker 04:
Okay, he said, I'll give you the, it's under 2ER259, he said, when he said to be truthful what was in his plea agreement and then the objection, then he said, I'm sorry to agree with the government.

[00:15:49] Speaker 04:
In other words, he was saying,

[00:15:51] Speaker 04:
He was saying what the government wanted him to testify to.

[00:15:55] Speaker 04:
And that's exactly what DeMantis did throughout his entire testimony.

[00:15:59] Speaker 04:
Everything he said was what he testified to at the grand jury.

[00:16:03] Speaker 03:
And your point is, I'm sorry, your point then is what?

[00:16:06] Speaker 06:
I'm not sure I understand your point.

[00:16:08] Speaker 04:
Okay.

[00:16:09] Speaker 04:
My point is that through the entire time, De Matis was giving false testimony.

[00:16:15] Speaker 04:
He was saying what the government wanted him to say, not what the true facts were.

[00:16:21] Speaker 03:
Why wasn't he just saying, I'm sorry that I'm agreeing with the government?

[00:16:25] Speaker 03:
I'm sorry, but I'm agreeing with government.

[00:16:27] Speaker 03:
I mean, there's... Well, that's what he did say.

[00:16:29] Speaker 05:
He says, I'm... The more straightforward understanding of that is sort of, unfortunately, the government is correct.

[00:16:39] Speaker 05:
I mean that's kind of the way I would hear that.

[00:16:42] Speaker 04:
No, he's saying that whatever he was testifying to was he was supposed to agree and the government had him what he was supposed to say.

[00:16:52] Speaker 05:
Okay, well that to me is an extremely strained reading of that little tidbit of testimony.

[00:16:59] Speaker 05:
Is there anything else in the record itself that suggests that the testimony was false?

[00:17:08] Speaker 04:
Yes, if you want to look at

[00:17:13] Speaker 04:
Okay, the indictment count two, which was only against Mr. Tagaloa, it was completely what Mr. Demata said in the grand jury, and then it was written in the indictment.

[00:17:27] Speaker 04:
And that was where Tagaloa supposedly physically assaulted inmate one in the F7 holding.

[00:17:35] Speaker 04:
Okay, so then if you go over to

[00:17:40] Speaker 04:
That was false testimony by DeMantis.

[00:17:43] Speaker 05:
DeMantis also said that... How do we know that?

[00:17:45] Speaker 05:
I'm sorry.

[00:17:46] Speaker 05:
You're saying that, but I don't understand what demonstrates the falsity in your view.

[00:17:52] Speaker 04:
Okay, I'm getting to the testimony now, if I could.

[00:17:56] Speaker 04:
Okay, Damatos testified that Tagaloa, when they were escorting Kali'i after his handcuffs to the next cell, he said, Tagaloa said, I mean, Damatos said Tagaloa was on Kali'i's left, Tabayan was on his right, and they were escorting him, and Damatos and Pinkney were behind him.

[00:18:16] Speaker 04:
However, Tabayan did

[00:18:21] Speaker 04:
And in Tabayan's testimony, he asked, this is in 3ER 484, that was during day six, Tabayan, and he said, so where, Mr. Ushibashi, which is Tagaloa's attorney, he said, so where was Jordan DeMontes at this point?

[00:18:41] Speaker 04:
And he said, Jordan DeMontes was probably with Sergeant Tom.

[00:18:44] Speaker 04:
You don't know.

[00:18:45] Speaker 04:
No, he wasn't with you folks.

[00:18:48] Speaker 04:
No, he was the last person.

[00:18:50] Speaker 04:
So what's important about this is that Dematis testified that he was the one standing outside of cell 7.

[00:19:00] Speaker 04:
And Damat, I mean, my client Tagaloa and Mr. Pinky were the ones that escorted him.

[00:19:07] Speaker 03:
That's conflicting testimony from different witnesses.

[00:19:09] Speaker 03:
I mean, but that, how does that show that he was lying?

[00:19:12] Speaker 03:
Pardon?

[00:19:13] Speaker 03:
That's conflicting testimony from different witnesses.

[00:19:15] Speaker 03:
But how does that show that Mr. Damato was lying?

[00:19:19] Speaker 04:
Because he wasn't there.

[00:19:22] Speaker 04:
He wasn't present.

[00:19:24] Speaker 04:
He was not even in that area at the time.

[00:19:28] Speaker 06:
I think, Ms.

[00:19:29] Speaker 06:
Dotson, to be successful on this type of false sort of testimony being admitted, you have to show more than mere inconsistencies.

[00:19:44] Speaker 06:
And the way I'm reading what happened here was

[00:19:48] Speaker 06:
These were inconsistencies.

[00:19:52] Speaker 06:
To satisfy this falsehood requirement, you have to show that testimony was actually false, that the government knew that it was false or should have known it false, and the testimony was material, meaning that it would have made a difference to the outcome.

[00:20:10] Speaker 06:
And I'm just having trouble reading some of these examples in that way.

[00:20:17] Speaker 06:
And I didn't see where there was objections made, so I think we're reviewing this under plain error, but I want to give you an opportunity to tell me differently, or to correct my understanding, if I'm incorrect.

[00:20:32] Speaker 04:
Well, in the record, under Mr. Tagaloa's, I mean, Mr. Demata's testimony,

[00:20:44] Speaker 04:
And it was in the opening brief where he said several statements that were stated in there that

[00:20:54] Speaker 04:
that were not true, where he said that Mr. Kaili was not physically aggressive.

[00:21:00] Speaker 04:
But when Mr. Kaili was walking in front of Tagaloa and Pinckney, when he was taking him through the chute, and then he freaked out, he was high on drugs, and he freaked out and backed into Mr. Tagaloa and started resisting.

[00:21:15] Speaker 04:
But Demato said, no, he wasn't physically aggressive.

[00:21:19] Speaker 04:
He didn't attempt to walk away.

[00:21:21] Speaker 04:
He wasn't trying to escape.

[00:21:23] Speaker 04:
These are all in there.

[00:21:27] Speaker 04:
While Kalihi was down, did you observe strikes or kicks by Tagalow?

[00:21:32] Speaker 04:
And he said yes, but that's not necessarily true either, if you look at the record.

[00:21:37] Speaker 04:
And Demata said he was present for the entire incident with Kalihi, but he wasn't.

[00:21:43] Speaker 04:
He was on the other side of the prison where Tom and him then came through.

[00:21:48] Speaker 04:
So he wasn't there all the time.

[00:21:50] Speaker 04:
He didn't see that.

[00:21:51] Speaker 04:
And also, in Demata's,

[00:21:57] Speaker 04:
said that in that cell, that my client was kicking him and hitting him before they took the handcuffs off.

[00:22:06] Speaker 04:
But Tabayan was actually the one that was there.

[00:22:08] Speaker 04:
Dematis wasn't there, and that was brought up in testimony, that whatever he said.

[00:22:13] Speaker 06:
That sounds like oral argument to a jury, but we're in a different phase now.

[00:22:18] Speaker 06:
If you're trying to claim that those were actually false and whether or not you need to show that you presented this exact issue to the district court below that was discussed, that you showed exactly why it was false.

[00:22:31] Speaker 06:
I don't see any of that in the record.

[00:22:34] Speaker 06:
You have 17 seconds left.

[00:22:36] Speaker 06:
Would you like to reserve?

[00:22:37] Speaker 06:
Do you want to answer?

[00:22:38] Speaker 04:
Oh, I'm sorry.

[00:22:39] Speaker 04:
Yes, your honor.

[00:22:39] Speaker 04:
I'd like to reserve.

[00:22:40] Speaker 04:
Thank you.

[00:23:04] Speaker 02:
May it please the court.

[00:23:06] Speaker 02:
My name is Harleen Kimura, Department of Justice Attorney, Mr. Noah Walk Lindell.

[00:23:17] Speaker 02:
The first point I want to make is that the government did not appeal the garrity reconsideration order.

[00:23:24] Speaker 02:
And therefore, any arguments by the government regarding whether there was a waiver of the garrity issue on the Tagaloa Exhibit 23 should be disregarded.

[00:23:38] Speaker 02:
They waived it.

[00:23:39] Speaker 05:
Council?

[00:23:39] Speaker 05:
I'd like to ask you a sort of more fundamental question about the garrity issue.

[00:23:44] Speaker 05:
Yes.

[00:23:46] Speaker 05:
How is it that your client has standing to assert co-defendant Tagaloa's Fifth Amendment rights?

[00:23:55] Speaker 05:
Because it's not about him.

[00:23:57] Speaker 02:
According to the government's case,

[00:24:03] Speaker 02:
All of the ACOs got together, they looked at each other's answers to the reports or the questionnaire, and they essentially adopted each other's answers to be consistent so there was no red flag.

[00:24:19] Speaker 02:
So the position of Mr. Pinky is that they, as I said, adopted each other's answers and therefore their garrity rights are in also the answers of the others.

[00:24:32] Speaker 02:
Because all their answers are the same and therefore they all have interlocking garrity rights.

[00:24:41] Speaker 02:
That is the argument that we're making.

[00:24:48] Speaker 02:
So actually, if you disregard all the arguments by the government regarding whether Mr. Tagalowa waived his garrity rights, you only have three remaining arguments, whether there was standing, which Your Honor, we already addressed.

[00:25:05] Speaker 02:
The second one is whether there was the erroneous admission of exhibit 23, which is the Tagalowa questionnaire and answers.

[00:25:15] Speaker 02:
And the third, whether there should be discretionary relief granted in this case.

[00:25:26] Speaker 03:
Now, in regards to the... But it's clear that Mr. Pickney didn't make any statements, right?

[00:25:35] Speaker 02:
I'm sorry, make any statements.

[00:25:37] Speaker 03:
Any statements related to the Garrity rights that you're claiming?

[00:25:40] Speaker 03:
That it's Tagaloa's, correct?

[00:25:42] Speaker 02:
Yes, it's just Tagaloa's answers, yes.

[00:25:45] Speaker 02:
Okay, got it.

[00:25:47] Speaker 02:
Now in regards to Exhibit 23 that was admitted, that was an unconstitutional violation because it is clear that according to Garrity, that should not have been admitted, period.

[00:25:58] Speaker 02:
And the district court did acknowledge after as a second thought that

[00:26:04] Speaker 06:
And it gave a curative instruction, right?

[00:26:07] Speaker 06:
I mean, that later had a conference and decided, you know what, maybe that shouldn't go forward.

[00:26:13] Speaker 06:
And so was it redacted or pulled completely?

[00:26:16] Speaker 06:
I don't remember.

[00:26:17] Speaker 05:
It was withdrawn and redacted and resubmitted and redacted somewhere.

[00:26:21] Speaker 02:
Yes, Your Honor.

[00:26:22] Speaker 02:
Well, first of all, exhibit 23, the full question and the answers were published.

[00:26:28] Speaker 02:
Secondly, a redacted version only

[00:26:32] Speaker 02:
stating the date and his signature was admitted into evidence and exhibit 23 was withdrawn.

[00:26:39] Speaker 02:
But essentially, that redacted exhibit was not shown to the jury.

[00:26:45] Speaker 02:
And there was a curative instruction, but that came a week later.

[00:26:51] Speaker 03:
So- That happens all the time.

[00:26:53] Speaker 03:
That happens in a long trial all the time where these instructions come in later to explain something that might have been a mistake.

[00:27:01] Speaker 03:
to the jury.

[00:27:03] Speaker 02:
Yes, Your Honor, that is correct.

[00:27:05] Speaker 02:
However, our point is that in a Garrity violation, which is a constitutional violation, when you have something as important as that, there should be more than just a redaction that's sort of like replaced without being published to the jury, being put forth as to exactly what is happening.

[00:27:26] Speaker 06:
Presuming you can bring forward Tagloa's Garrity argument here.

[00:27:30] Speaker 06:
What do you think should have happened then at that point?

[00:27:36] Speaker 02:
What should have happened at that point would be if there was going to be a

[00:27:42] Speaker 02:
withdrawal of exhibit 23 and exhibit 23B admitted at that point, it should have been done at that time when the issue arose and it should have been published to the jury.

[00:27:56] Speaker 06:
And what's your best case or authority to support that that's what should have happened?

[00:28:02] Speaker 02:
I'm sorry, Ron, I don't have a case prettily at hand to support that.

[00:28:09] Speaker 02:
But in answer to your question, yes, at the point where the judge determined that it should not have been entered, exhibit 23,

[00:28:19] Speaker 02:
It should have been withdrawn.

[00:28:21] Speaker 03:
I'm just thinking of how hard that would be for us to formulate a rule where that would be the case where judges can't make mistakes, court, you know, folks can't make mistakes and then try to correct it later and provide an instruction or a corrected exhibit.

[00:28:37] Speaker 03:
You're holding, aren't you holding

[00:28:40] Speaker 03:
Would announcing a rule like that really just create all sorts of problems?

[00:28:48] Speaker 02:
Well, our argument, Your Honor, is that in a situation where it's just a mere evidentiary ruling, something like that with a curative instruction at the appropriate time may be okay.

[00:29:01] Speaker 02:
But in this case, because this is a guarantee issue, it's a constitutional issue, it could be akin to a structural error.

[00:29:09] Speaker 02:
Your Honor, may I reserve the last minute for rebuttal?

[00:29:13] Speaker 02:
Thank you.

[00:29:34] Speaker 00:
I want to get to the specific arguments that Defendants' Council have been making here this morning and, of course, answer any questions that the panel may have.

[00:29:46] Speaker 00:
I would just like to, before that, if I may, take just a second to step back and discuss the big picture a little bit.

[00:29:53] Speaker 00:
The dependents have been making a host of arguments in this case, but this is not the sort of trial where pulling one thread unravels the entire case.

[00:30:03] Speaker 00:
The evidence supporting both the deprivation of rights convictions and the conspiracy and obstruction convictions in this case was overwhelming.

[00:30:11] Speaker 00:
So that means that on harmless error review or on plain error review,

[00:30:15] Speaker 00:
these convictions are not subject to reversal.

[00:30:18] Speaker 00:
The defendants have an even harder time here because they made almost none of the arguments in the district court that they're now making on appeal.

[00:30:27] Speaker 00:
In fact, they affirmatively agreed to a number of the evidentiary rulings and jury instructions that they're now challenging.

[00:30:33] Speaker 00:
So almost everything is subject to waiver or harmless error review.

[00:30:38] Speaker 00:
As to the specific arguments that they're making this morning, I'll start with Mr. Thom's confrontation clause claim.

[00:30:46] Speaker 00:
Mr. Thom seems to have stepped past the first question that has to be asked for a confrontation clause claim, which is whether this is hearsay to begin with.

[00:30:58] Speaker 00:
Because as Crawford and Davis confirm, the confrontation clause only applies in the first instance to statements that are testimonial hearsay.

[00:31:08] Speaker 00:
Almost all of the statements that is challenging were not introduced to prove the truth of the matter they're asserting.

[00:31:13] Speaker 00:
Most of them, as your honors have pointed out, were being used to prove the falsity of those statements.

[00:31:18] Speaker 00:
And that's particularly important here because this is an obstruction case.

[00:31:22] Speaker 00:
The government of the charge is that they were lying throughout the entire course of the investigation in order to prevent anyone from finding out about the reality of what they were doing, the fact that this was excessive force.

[00:31:37] Speaker 06:
I think Mr. Isaacson was trying to make an argument that under this confrontation clause that somehow the cross-examination statement that was being made

[00:31:52] Speaker 06:
or was being used against Mr. Pickney somehow tainted his client in the process because it showed the truth of what happened.

[00:32:02] Speaker 06:
Can you respond to that?

[00:32:04] Speaker 00:
Sure.

[00:32:04] Speaker 00:
So first of all, all the statements that were being used for a non-guerce purpose

[00:32:10] Speaker 00:
are not subject to the confrontation clause at all, so there's no argument that it could have tainted his client because these statements could have come in even if he had, for example, a severed trial.

[00:32:19] Speaker 00:
This isn't hearsay.

[00:32:21] Speaker 00:
Mr. Tagalua's statements, as Mr. Isaacson has basically admitted this morning,

[00:32:27] Speaker 00:
were introduced to prove their falsity.

[00:32:33] Speaker 00:
As Your Honor pointed out earlier, Exhibits 77A and 77G, the entire point of introducing those two was to show that Mr. Pinkney was changing his story during the interview and that he lied in 77A.

[00:32:47] Speaker 00:
77E, which was the statement where he said, I will neither confirm nor deny that they met at Mr. Tom's house.

[00:32:53] Speaker 00:
There is no fact there to be proven.

[00:32:55] Speaker 00:
It is neither confirm nor deny statement.

[00:32:58] Speaker 00:
So it's hard to see how it could have been introduced to prove the truth of any matter as there is no truth to prove in that statement.

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

[00:33:06] Speaker 05:
What about 77R and K?

[00:33:09] Speaker 00:
Sure, so 77K, we have agreed, was introduced to prove the truth of the matter being asserted that Mr. Pinkney had created this video because he had an inkling that something might happen.

[00:33:23] Speaker 05:
And he wanted to protect himself.

[00:33:24] Speaker 00:
Right, yes.

[00:33:26] Speaker 00:
So that's the only statement that was introduced to prove its truth.

[00:33:32] Speaker 00:
As to that statement, we get into the Bruton question.

[00:33:37] Speaker 00:
Again, it was only introduced against Mr. Pinkney, not against Mr. Thom, and Mr. Thom's objection was expressly only to the extent these are being admitted against my client.

[00:33:49] Speaker 00:
So he did not object to the introduction of this statement against Mr. Pinkney, so we're talking about plain error review at this point.

[00:33:57] Speaker 00:
And the statement does not facially incriminate Mr. Tom.

[00:34:01] Speaker 00:
The statement doesn't mention Mr. Tom at all, 77K.

[00:34:07] Speaker 00:
under the Bruton line of cases, most recently Samia, you have to actually facially incriminate the co-defendant in that statement.

[00:34:17] Speaker 00:
So Mr. Pinkney is talking about himself and why he created this video, but that statement alone isn't facially incriminating Mr. Tom.

[00:34:28] Speaker 05:
And 77I was also Pinkney's statement that they had recorded a video at Tom's house.

[00:34:40] Speaker 00:
Right, so first of all, those statements were just being introduced.

[00:34:44] Speaker 00:
And if you look at Special Agent Nelson's direct testimony where he's being asked about this, the only thing that he's being asked is did Mr. Pinkney say this?

[00:34:55] Speaker 00:
So it's only being introduced to show that Mr. Pinkney said it.

[00:34:59] Speaker 00:
77i never gets referenced again in closing argument or otherwise.

[00:35:03] Speaker 00:
So it's not being used as hearsay.

[00:35:09] Speaker 00:
Here, there also was both a statement from the government when it was introducing these pieces of testimony, that they were only being introduced against Mr. Pinkney.

[00:35:19] Speaker 00:
And at the end of the trial, the judge issued what ended up being instruction number 34, which told all of the jury to consider the case against each defendant separately.

[00:35:32] Speaker 00:
So there's no taint here in the brutal sense.

[00:35:37] Speaker 06:
And how they were used in closing arguments, does that matter?

[00:35:42] Speaker 00:
It can matter, Your Honor, if the government sort of undoes the protections that Bruton is dealing with.

[00:35:50] Speaker 00:
But here there are only two statements that the government actually used in closing argument, 77K, as we were talking about, and 77E.

[00:35:58] Speaker 00:
And 77E was

[00:36:00] Speaker 00:
only referenced as to the neither confirm nor deny statement, and the only use to which that was put a closing argument was to say, this is the sort of thing that you say when you're part of a conspiracy.

[00:36:10] Speaker 00:
It's being used to show that Pinkney was part of the conspiracy, which is a necessary element to prove the conspiracy claim against Mr. Pinkney.

[00:36:21] Speaker 00:
One other thing I just wanted to clear up very quickly about the Confrontation Clause claim, and then I can move on, is that Mr. Isaacson has been claiming that we argued that Mr. Pinkney's statements to the FBI were non-testimonial.

[00:36:35] Speaker 00:
We did not argue that.

[00:36:36] Speaker 00:
The non-testimonial argument was only as to Mr. Tagalowas' two statements to DPS, not to Mr. Pinkney's statements to the FBI, which

[00:36:44] Speaker 00:
or falling outside the time of the conspiracy were to law enforcement officers during an investigation of potential crime.

[00:36:53] Speaker 00:
I can move next to the Garrity issue.

[00:36:57] Speaker 00:
The simplest basis for rejecting the Garrity claim is, as you mentioned, Judge Graber, as to Mr. Pinkney, that he does not have standing.

[00:37:10] Speaker 00:
The fact that co-conspirators may sort of adopt each other's statements

[00:37:16] Speaker 00:
is essentially the basis for the co-conspirator and furtherance exception to hearsay.

[00:37:22] Speaker 00:
But that does not mean that those co-conspirators' statements then get adopted for purposes of the individual rights.

[00:37:31] Speaker 00:
And under Alderman and Padilla, the Supreme Court has said that just because you are a co-conspirator does not mean that you get to adopt your co-conspirators' individual constitutional rights.

[00:37:43] Speaker 00:
And both Mr. Tagaloa and Mr. Pinkney affirmatively waived their Garrity claim when they dropped it during the mid-trial discussions once they found out that the government was only seeking to pierce Garrity as to Exhibit 23 and not the many other statements that the defendants in their second motion in Lemonay had thought that the government was trying to get in in spite of Garrity.

[00:38:07] Speaker 00:
Once they understood that, they talked to their clients over the weekend, came back on Monday, and they said, we agree that this is relevant evidence and should be introduced.

[00:38:16] Speaker 00:
Then later that day at trial, the government introduced Exhibit 23 into evidence, and once again, defense counsel explicitly said, we don't object.

[00:38:26] Speaker 00:
So they both affirmatively waived that argument.

[00:38:31] Speaker 00:
Going on to the NPU claim, the false evidence claim that Takalawa has been making.

[00:38:40] Speaker 00:
This is essentially just a claim of contradictory testimony, as Your Honor pointed out, and that is not enough to show actual falsity.

[00:38:50] Speaker 00:
The standard requires that there be a record of actual falsity and that the government knew or should have known that it was procuring that false testimony.

[00:38:59] Speaker 00:
So there's certainly no argument

[00:39:02] Speaker 00:
made that the government knew or should have known that it was procuring false testimony.

[00:39:06] Speaker 00:
The only argument that was made on that score was that Mr. DeMato's statements were consistent across time, which should prove more that they are truthful than that they are false, and certainly all of the elements that

[00:39:25] Speaker 00:
that have been cited as things that the government has done, preparing the plea agreement, having him testify at the grand jury.

[00:39:33] Speaker 00:
These are standard things that one does for plea agreements and cooperators.

[00:39:37] Speaker 00:
So if that were enough to prove false testimony, then all cooperators would be testifying falsely all the time.

[00:39:45] Speaker 00:
There was also, oh, just, I'm sorry, I missed one point on the Garrity issue because Mr. Kamara brought it up, this question of the cross appeal.

[00:39:56] Speaker 00:
We are not seeking any additional relief beyond what we got below.

[00:40:02] Speaker 00:
The defendants were all convicted.

[00:40:04] Speaker 00:
They were sentenced.

[00:40:05] Speaker 00:
We're not seeking to expand their sentences or otherwise affect the relief.

[00:40:09] Speaker 00:
So therefore, we're not seeking to enlarge our rights, and we did not have to cross-appeal.

[00:40:14] Speaker 00:
This is just an alternative argument in support of the judgment below that was made below.

[00:40:20] Speaker 00:
So one citation for that principle, there are many, is the United States versus State Water Resources Control Board, which is 988 F3rd 1194 at 1208.

[00:40:35] Speaker 00:
Finally, there is the prosecutorial misconduct claim that Mr. Isaacson briefly brought up at the end.

[00:40:41] Speaker 00:
And under plain error review, as this is, that sort of alleged misconduct can only overturn convictions if they undermine the fundamental fairness of the trial and lead to a miscarriage of justice, which is an extremely high bar and one that cannot be met here, particularly given the court's repeated admonitions to the jury that they should not treat the statements of counsel as evidence and the strength of the evidence itself in this case.

[00:41:11] Speaker 00:
Mr. Thom's briefs essentially focus on individual statements and they don't put them in context.

[00:41:18] Speaker 00:
Many of the statements were responding to statements that defense counsel had made or defenses that defense counsel had used during their closing arguments that prosecutors were then responding to in rebuttal.

[00:41:34] Speaker 00:
As to that and any other issues, happy to answer any other questions that the court might have.

[00:41:40] Speaker 00:
Otherwise, we're happy to rest on our briefs.

[00:41:45] Speaker 06:
Thank you.

[00:41:45] Speaker 00:
Thank you.

[00:41:55] Speaker 06:
You have a minute and a half here.

[00:41:58] Speaker 06:
Oh, plenty of time.

[00:41:59] Speaker 06:
Thank you.

[00:42:02] Speaker 01:
With all due respect to counsel, it is important for us to contest the government's position on 39, page 40 of their brief, that the defendant did not raise Sixth Amendment challenges to Exhibit 77A to K in 1ER, Exceptive Record, page 13 and 14.

[00:42:24] Speaker 01:
The objection was made to those under the Sixth Amendment as it applies to my client.

[00:42:30] Speaker 01:
So the idea that somehow he didn't raise Sixth Amendment protections, he made it a Sixth Amendment, clearly identified Sixth Amendment as being the basis for his objection to it.

[00:42:42] Speaker 01:
He didn't want it to be used against his client because it violated his client's Sixth Amendment rights.

[00:42:51] Speaker 01:
The government talks about, oh, like now it is very clear that it was non-hearsay.

[00:42:57] Speaker 01:
There's only one small statement that they ever made.

[00:43:00] Speaker 01:
One tiny little statement, oh, we're not offering the truth of the matter asserted.

[00:43:05] Speaker 01:
We don't know anything more than that.

[00:43:07] Speaker 01:
We have no idea what they meant by that.

[00:43:09] Speaker 01:
We have no discussion about that, no ruling about that.

[00:43:13] Speaker 01:
We just have one small statement and that's all we have.

[00:43:16] Speaker 01:
And now they're saying, oh, of course it's not hearsay because if we use it for this purpose and this purpose and this person and this purpose because that's one of the dangers in the cases that I cite when later on you could look back 2020 in hindsight to justify a position.

[00:43:30] Speaker 01:
In regard to the argument at closing, it's my belief, and we're talking about those exhibits, that all the ones against Mr. Pigny, against him, were incorporated and they were played, some overtly, some just part of the government's case.

[00:43:49] Speaker 01:
Some just part of the government's arguments, oh, they met over at Mr. Tom's house, and suddenly someone was played to the jury, and not a bit of it was to be used against my client.

[00:44:01] Speaker 06:
Thank you, Mr. Isaacson.

[00:44:03] Speaker 06:
Appreciate your argument.

[00:44:04] Speaker 01:
I have one great point, but I will leave it.

[00:44:06] Speaker 01:
Thank you.

[00:44:08] Speaker 01:
Thank you very much.

[00:44:14] Speaker 06:
Ms.

[00:44:14] Speaker 06:
Dotson, I'll give you one minute.

[00:44:17] Speaker 04:
Thank you.

[00:44:20] Speaker 04:
I'd just like to say that the government, in their closing arguments, the only evidence they presented was what de Montes said.

[00:44:27] Speaker 04:
De Montes said this.

[00:44:28] Speaker 04:
De Montes said that.

[00:44:29] Speaker 04:
That was all.

[00:44:30] Speaker 04:
There was no other evidence against any of our clients except what Mr. de Montes said in there.

[00:44:35] Speaker 04:
And as far as the

[00:44:39] Speaker 04:
There was no showing of any conspiracy except for Demacha's testimony.

[00:44:44] Speaker 04:
Mr. Tagaloa injured his hands when he was trying to get out Mr. Kalihi's hands from underneath his stomach.

[00:44:52] Speaker 04:
His hands were so injured that he went to the hospital with Mr. Kalihi.

[00:44:56] Speaker 04:
Mr. Kalihi was seen by the doctor at five o'clock in the afternoon.

[00:45:00] Speaker 04:
At 1.30 is when the incident started.

[00:45:02] Speaker 04:
We don't know when it ended.

[00:45:04] Speaker 04:
We don't know what happened.

[00:45:05] Speaker 04:
Mr. Tagaloa wrote his report, put it in the box, and then he left for the airport.

[00:45:12] Speaker 04:
I mean, for the hospital.

[00:45:14] Speaker 04:
During that time, De Montes had plenty of time to go and take his report that he made and copy it.

[00:45:23] Speaker 04:
Mr. Tagaloa is not a violent person.

[00:45:26] Speaker 04:
And the charges against him were just

[00:45:31] Speaker 04:
There was really no evidence except Demata's testimony against him.

[00:45:34] Speaker 04:
And Mr. Tagaloa right now, he's in a low security facility.

[00:45:39] Speaker 04:
And he's also been given several, I guess they would be good time credits against his sentence.

[00:45:46] Speaker 04:
Let me find that.

[00:45:49] Speaker 04:
I don't have, I don't have room to find it.

[00:45:51] Speaker 04:
But anyway, he's not a violent person.

[00:45:53] Speaker 04:
He wasn't the one pounding on him.

[00:45:55] Speaker 04:
And what he said, what Tomatas said in the cell, Tomatas wasn't even there.

[00:46:01] Speaker 04:
And Tobiah did testify, he was there, that it didn't happen.

[00:46:08] Speaker 04:
So, Your Honor,

[00:46:10] Speaker 04:
The records speak for themselves in the briefs and what happened and Mr. Tagaloro was not guilty of these crimes because he's not that kind of a person and there was no evidence against him.

[00:46:22] Speaker 04:
Thank you.

[00:46:23] Speaker 04:
Thank you.

[00:46:29] Speaker 02:
Your Honor, I just have two points.

[00:46:32] Speaker 02:
First of all, in regards to the garrity issue, that is self-executing just like Miranda violations.

[00:46:40] Speaker 02:
So in other words, whether there is harmless error or plain error, the point is there was a violation and therefore you would need to look at whether the burden then shifts to the government.

[00:46:52] Speaker 02:
The government will have to prove

[00:46:54] Speaker 02:
that the error was harmless beyond a reasonable doubt according to the Ninth Circuit Lopez case, 500 F3rd, 840.

[00:47:03] Speaker 02:
The second point is in regards to Garrity and the co-conspirator statement.

[00:47:10] Speaker 02:
Yes, in a general sense, co-conspirator statements

[00:47:14] Speaker 02:
cannot be used by another person because they wouldn't have rights in there.

[00:47:18] Speaker 02:
But that is different from this case, because in this case, all of them, according to the government's case, they all got together.

[00:47:26] Speaker 02:
They all wrote the same thing.

[00:47:28] Speaker 02:
So all of their statements are in each other's statements.

[00:47:32] Speaker 02:
So for all of those reasons, Your Honor, we believe that the Garrett issue would determine that a new trial should be had in this case.

[00:47:40] Speaker 02:
Thank you, Your Honor.

[00:47:41] Speaker 06:
Thank you very much.

[00:47:43] Speaker 06:
The case of United States of America versus Jonathan Tom, Jason Tagalua, and Craig Peatney is submitted.

[00:47:51] Speaker 06:
Mr. Isaacson, Ms.

[00:47:53] Speaker 06:
Dodson, Mr. Kamara, and Mr. Bocat-Lindell, thank you all for your argument presentations.

[00:48:01] Speaker 06:
We are adjourned.

[00:48:02] Speaker 06:
Thank you.