[00:00:12] Speaker 01:
Good morning, Your Honors.

[00:00:20] Speaker 01:
I'm Mark Carlos.

[00:00:21] Speaker 01:
I represent the appellant, Mr. Timothy Jones.

[00:00:24] Speaker 01:
May it please the Court and the opposing counsel.

[00:00:27] Speaker 03:
Oh, speak up a little bit, counsel.

[00:00:28] Speaker 03:
We have very bad acoustics here, so speak into the mic.

[00:00:31] Speaker 01:
Got it.

[00:00:32] Speaker 01:
I was also the trial counsel in this particular case, which is, I think, important given the nature of this appeal and the issue.

[00:00:39] Speaker 01:
I think the only serious issue here we have is vouching.

[00:00:43] Speaker 01:
It is very important to understand the setting of this case and the nature of the vouching which occurred.

[00:00:52] Speaker 01:
You know, Mr. Jones was somebody with a long criminal history.

[00:00:57] Speaker 01:
He is an individual who is tattooed up.

[00:00:59] Speaker 01:
The agents in this particular case were waiting at a motel room, motel facility, waiting for him.

[00:01:07] Speaker 01:
Basically, he's on a fourth waiver.

[00:01:09] Speaker 01:
They're just going to come and arrest him when they see him.

[00:01:11] Speaker 01:
They see Mr. Jones coming out of the hotel room.

[00:01:14] Speaker 01:
He has a bag in his hand.

[00:01:15] Speaker 01:
puts the bag on his car.

[00:01:17] Speaker 01:
These agents are equipped with cameras, body-worn cameras.

[00:01:21] Speaker 01:
They roll up on Mr. Jones according to these agents, and this is the only evidence that is indicative of any type of knowledge.

[00:01:31] Speaker 01:
Mr. Jones says, I got dope and a gun in the bag.

[00:01:34] Speaker 01:
And then the agents turn their microphones on.

[00:01:38] Speaker 01:
They didn't, they did no additional investigation.

[00:01:41] Speaker 01:
There is no fingerprint of the gun, no fingerprint of the clip, no fingerprint of the bag, no fingerprint of the drugs, nothing.

[00:01:48] Speaker 01:
And they had that bag, they had everything for the better part of a year and a half.

[00:01:52] Speaker 01:
And they did any investigation.

[00:01:55] Speaker 03:
With respect, counsel, you're obviously an experienced lawyer.

[00:01:58] Speaker 03:
You know what we're dealing with here is whether or not your client was in custody, in quotes.

[00:02:03] Speaker 03:
I've heard a lot of cases over the last 18 years,

[00:02:07] Speaker 03:
I've never seen one where the officers just start to walk up and immediately the guy says, hey, basically, I'm guilty.

[00:02:15] Speaker 03:
I have this, I have that.

[00:02:18] Speaker 03:
No guns, no badges, no anything.

[00:02:20] Speaker 03:
He just says that.

[00:02:21] Speaker 03:
I may have been concerned because he had a previous criminal record, but where's the coercion?

[00:02:27] Speaker 03:
Where's the custody?

[00:02:28] Speaker 01:
They came up in vehicles, they were clearly law enforcement, and they just come straight up into him.

[00:02:35] Speaker 01:
He's not free to leave.

[00:02:36] Speaker 01:
He is basically held hostage by these police officers.

[00:02:40] Speaker 03:
You say basically, but I mean, as you know, under the case law, the question is whether he could have felt free to leave.

[00:02:47] Speaker 03:
They didn't tell him he couldn't leave.

[00:02:49] Speaker 03:
They didn't raise firearms.

[00:02:52] Speaker 03:
They didn't shout at him.

[00:02:53] Speaker 03:
They didn't tell him to get down on it.

[00:02:55] Speaker 03:
Nothing.

[00:02:56] Speaker 03:
Before they even got there, he says, basically, I got the guns and I got the drugs.

[00:03:00] Speaker 01:
Again, and that takes us back to, I guess, the initial vouching.

[00:03:04] Speaker 01:
I mean, if you believe that to be the case.

[00:03:06] Speaker 01:
I mean, the only witnesses as to that statement, which

[00:03:10] Speaker 01:
During my closing argument, I pointed out to the jury, if you saw Mr. Jones, his face is tattooed.

[00:03:16] Speaker 01:
He's tattooed up and down his arms.

[00:03:18] Speaker 01:
He is a person who looks like he's been involved in criminal activity.

[00:03:22] Speaker 01:
I hate to say it, but he's my client.

[00:03:25] Speaker 01:
So I said, would this be the person who would say something like that?

[00:03:29] Speaker 01:
Obviously not.

[00:03:30] Speaker 01:
And again, going back to it, the only evidence of that are these officers, these agents, who are looking for Mr. Jones, who are looking for a reason to detain him because he's on a fourth and they think he's up to no good.

[00:03:41] Speaker 03:
Let's say he said that because, in light of his prior history, let's say he was just scared.

[00:03:47] Speaker 03:
Is that enough reason for us to find that he was, in quotes, in custody?

[00:03:51] Speaker 01:
If he was just scared from these agents?

[00:03:53] Speaker 03:
If he was just scared.

[00:03:54] Speaker 01:
I think that he would have to I think they would have to have an understanding that he was in custody of these agents and he I mean he's he knows these people are agents he knows that the off the cars rushing up on him our law enforcement they have they have their their weapons they have their their body-borne cameras ready to go so I don't think that I think that they would have known saying that just the fact that they were police officers usually said nothing

[00:04:24] Speaker 03:
They say they stood off at 100 yards and he could see them.

[00:04:28] Speaker 03:
And he said that, would he be in custody?

[00:04:30] Speaker 01:
I think it's different.

[00:04:31] Speaker 01:
If a police officer comes up on somebody and they pull them over for speeding, lock up to the vehicle.

[00:04:37] Speaker 01:
I think that's a different story.

[00:04:38] Speaker 01:
When you're in a parking lot and two cars rush up on you, these officers get out of the cars, they have weapons.

[00:04:44] Speaker 01:
I think that's a much different situation.

[00:04:46] Speaker 03:
They didn't brandish the weapons, right?

[00:04:48] Speaker 03:
They had them.

[00:04:49] Speaker 01:
Had them.

[00:04:50] Speaker 01:
They didn't brandish them.

[00:04:51] Speaker 01:
They had them.

[00:04:51] Speaker 01:
I think that's sufficient in this particular case in the split second it took to make that statement.

[00:04:56] Speaker 01:
Then after that, he didn't.

[00:04:58] Speaker 02:
So as I understand your position, counsel, you're not even saying that's your strongest argument.

[00:05:02] Speaker 02:
What you're saying is that informs the vouching that occurred at trial.

[00:05:07] Speaker 02:
That's the predicate you're laying for that, correct?

[00:05:09] Speaker 02:
Absolutely, Your Honor.

[00:05:10] Speaker 02:
So would you address whether we're reviewing for plain error where you didn't object?

[00:05:15] Speaker 02:
and then where you did object what what really is the line that we should draw as an appellate court

[00:05:21] Speaker 02:
where we're vouching crosses the line.

[00:05:23] Speaker 01:
So there's two things.

[00:05:24] Speaker 01:
The error when I didn't object would have been, I think there's three parts.

[00:05:31] Speaker 01:
The first part is prior to the objection, which would have been the cookie jar argument to the jury.

[00:05:39] Speaker 01:
And then the one that followed the vouching objection was, I think, the one that the court needs to find plain error, because there was no objection there.

[00:05:49] Speaker 01:
The cookie jar analogy is very important because they came right on the heels of each other.

[00:05:53] Speaker 01:
It was very quick.

[00:05:54] Speaker 01:
So the cookie jar analogy comes and then the vouching.

[00:05:57] Speaker 01:
And the cookie jar analogy is the basic one that prosecutors use.

[00:06:01] Speaker 01:
I've heard it before.

[00:06:02] Speaker 01:
I think it's improper where you say that, you know, that you're standing there and you come into the kitchen and little Johnny's got a broken, he's got a broken cookie jar and there's crumbs on his fingers and on his lips.

[00:06:15] Speaker 01:
And he's saying, you know, I didn't do this.

[00:06:17] Speaker 01:
I mean, do you need a body worn camera?

[00:06:20] Speaker 01:
Do you need DNA analysis?

[00:06:22] Speaker 01:
So they buttress that right immediately, then comes the vouching.

[00:06:27] Speaker 01:
And the statement is,

[00:06:29] Speaker 01:
there can be no stronger evidence.

[00:06:31] Speaker 01:
This is the prosecutor saying this, who has a higher standard than the defense as far as making these types of statements.

[00:06:39] Speaker 01:
He's saying there can be no stronger evidence than the word of two or three witnesses.

[00:06:45] Speaker 03:
But did not the court

[00:06:47] Speaker 03:
immediately, you rejected, issued an immediate curative instruction, and under the circumstances, how can there, how can that not be harmless basically?

[00:06:59] Speaker 01:
Because the damage has been done.

[00:07:00] Speaker 01:
I mean, not to mention the fact I asked the court to admonish that it was improper.

[00:07:04] Speaker 01:
It should have been told to the jury that that was an improper argument because the prosecution knows better.

[00:07:10] Speaker 01:
They know that they shouldn't do this.

[00:07:12] Speaker 01:
They know that they shouldn't vouch for their witnesses.

[00:07:14] Speaker 01:
And that's exactly what they did.

[00:07:16] Speaker 01:
And this was a vouching intended for the purposes of getting a conviction.

[00:07:19] Speaker 01:
This is the only evidence in the case.

[00:07:21] Speaker 01:
This is it.

[00:07:22] Speaker 01:
And so what they say is, you know.

[00:07:26] Speaker 03:
The only evidence in the case?

[00:07:28] Speaker 01:
Are you serious?

[00:07:29] Speaker 01:
They have the bag.

[00:07:31] Speaker 01:
They have him holding the bag.

[00:07:32] Speaker 01:
What's the evidence of knowledge?

[00:07:34] Speaker 01:
Zero.

[00:07:35] Speaker 01:
They've got, on a phone that has thousands of texts, they have two texts that shows that he has contact with people who use drugs.

[00:07:43] Speaker 01:
But other than that, there's nothing.

[00:07:45] Speaker 02:
What if, instead of saying it that way, the government had said, we ask you to consider whether any additional evidence would be needed?

[00:07:55] Speaker 02:
Ask it that way.

[00:07:56] Speaker 02:
Would that be vouching?

[00:07:58] Speaker 01:
Yeah, I don't think that would be that.

[00:08:00] Speaker 01:
You know, you're right.

[00:08:01] Speaker 01:
I think that if they ask the jury to make that determination, instead of having the prosecution, instead of having the government, I keep saying the prosecution.

[00:08:09] Speaker 01:
What I mean is the government.

[00:08:10] Speaker 01:
Instead of having the government tell you that there can be no stronger evidence, which is false.

[00:08:15] Speaker 01:
I'm making a false statement.

[00:08:16] Speaker 01:
There can be no stronger evidence than the word of two or three witnesses

[00:08:21] Speaker 01:
two of whom are police officers, so he's modifying it there, saying that these witnesses we have are police officers, so they're not just regular witnesses, who have no motive to lie.

[00:08:32] Speaker 01:
So what do they know?

[00:08:33] Speaker 01:
What's this jury hearing?

[00:08:35] Speaker 01:
in this particular trial from the government.

[00:08:37] Speaker 04:
So how do you tie the cookie jar analogy to vouching, because the government made that statement in closing in response to the defense argument that the investigation was inadequate, that it wasn't good enough because they didn't do all these other things, and then the prosecutor's saying,

[00:08:55] Speaker 04:
I mean, you need to do all these things.

[00:08:57] Speaker 04:
It's like if you found the child with the cookie in their hand.

[00:09:00] Speaker 01:
And I think that goes to what the government argues in their briefs, that somehow I invited this by attacking the case.

[00:09:07] Speaker 04:
Well, I'm not suggesting that you invited it, but they were responding to that argument, but they weren't saying—I think you cited Valenzuela—but they weren't saying anything about the burden of proof.

[00:09:20] Speaker 01:
But isn't that the burden of proof, though, if the only evidence is what he knew about this particular drug?

[00:09:26] Speaker 04:
Well, the balance of the concern was that the government diminished the actual burden of proof to below Beyond a Reasonable Doubt.

[00:09:31] Speaker 04:
And to say anything about the burden of proof here, they just said, here's evidence that you can consider that this investigation was sufficient.

[00:09:38] Speaker 04:
That doesn't say, and because maybe there's a cookie jar analogy, you don't have to find Beyond a Reasonable Doubt.

[00:09:45] Speaker 04:
And they didn't make that link.

[00:09:46] Speaker 01:
That's not the way it was phrased.

[00:09:48] Speaker 01:
They didn't say, like,

[00:09:49] Speaker 01:
This is why Mr. Carlos's argument is incorrect.

[00:09:53] Speaker 01:
It's what they're saying is that you don't need any other evidence.

[00:09:57] Speaker 01:
All you need is the fact that the person has crumbs.

[00:10:00] Speaker 01:
In this case, you don't need anything other than Mr. Jones with a bag in his hands.

[00:10:05] Speaker 01:
You don't have to show that he knew what was in there.

[00:10:08] Speaker 01:
So I think that it has the effect of lessening the burden of proof.

[00:10:12] Speaker 01:
And again, that was immediately, I mean, within seconds of the vouching.

[00:10:19] Speaker 01:
Vouching, even the district court at the time, I had to talk to him about it.

[00:10:25] Speaker 01:
They gave the limiting instruction, which isn't the limiting instruction that I would have wanted.

[00:10:29] Speaker 01:
I wanted to say that it was improper for them to argument, because they knew that was an improper argument.

[00:10:35] Speaker 01:
But the motion for a new trial, the district court had found that it was, in fact, vouching.

[00:10:43] Speaker 01:
They found.

[00:10:44] Speaker 03:
Let's say for a moment, argument that we agree with the district court, it was vouching.

[00:10:49] Speaker 03:
As you know, under, among others, Sarkisian, in order to show this was not harmless, you've got to show that it's more probable than not that the prosecutor's statement in the context of the entire trial materially affected the verdict.

[00:11:05] Speaker 03:
And what evidence do you have, what evidence could you produce to meet that standard?

[00:11:11] Speaker 01:
I would say that it's the way that the trial was presented to the jury.

[00:11:16] Speaker 01:
Once again, there was no forensic evidence whatsoever, no physical evidence that would basically tie Mr. Jones to that bag.

[00:11:25] Speaker 01:
So likewise, there's no evidence of any type of knowledge other than the statements of these two officers.

[00:11:30] Speaker 03:
Other than his own statements.

[00:11:32] Speaker 01:
Well, yeah, if you believe those officers.

[00:11:34] Speaker 03:
That's kind of important, isn't it?

[00:11:35] Speaker 01:
But do you remember, basically, that was the cross-examination of these agents, the entire case.

[00:11:40] Speaker 01:
This is like all the other cases on vouching have to do with whether or not it was a closed case, which the district court said it was, and also whether this was important to the case.

[00:11:49] Speaker 01:
This is the only issue in the case.

[00:11:51] Speaker 01:
It was nothing else.

[00:11:52] Speaker 01:
It's whether or not you believe that this guy made this statement, because they otherwise had to show evidence of knowledge.

[00:11:58] Speaker 03:
But with respect, counsel,

[00:12:00] Speaker 03:
What I read this to say is, you guys said, hey, I'm guilty, I did it.

[00:12:05] Speaker 03:
And you're saying the fact that there was vouching later on turns the whole thing upside down.

[00:12:11] Speaker 01:
We're saying the defense was these officers are lying.

[00:12:14] Speaker 01:
And so when the prosecution turns around and says, you know what, they're not lying because of this reason.

[00:12:19] Speaker 03:
And you tried to cross-examine them on that basis, right?

[00:12:22] Speaker 01:
I cross-examine their credibility.

[00:12:24] Speaker 03:
I did.

[00:12:25] Speaker 03:
And the jury had that information, and the jury made the determination, right?

[00:12:28] Speaker 01:
They made that determination after they heard from the government that there could be no stronger evidence than these witnesses who are police officers and have no reason to lie.

[00:12:36] Speaker 01:
I mean, that's when they made the decision.

[00:12:38] Speaker 01:
Take that out.

[00:12:39] Speaker 01:
Take that out.

[00:12:40] Speaker 01:
And if they said, you know what?

[00:12:41] Speaker 01:
Determine the credibility based upon what you saw in court.

[00:12:44] Speaker 01:
That would be fair.

[00:12:45] Speaker 01:
But this is patently unfair to Mr. Jones, given the nature of this case.

[00:12:50] Speaker 03:
You think that the vouching, as you view it, was irremediable.

[00:12:56] Speaker 03:
There was no way to put that genie back in the bottle.

[00:12:59] Speaker 01:
Absolutely.

[00:12:59] Speaker 01:
The bell had been rung, and there was no way to unwind it.

[00:13:02] Speaker 03:
And if we disagree with you, you lose, right?

[00:13:05] Speaker 01:
We disagree with you.

[00:13:06] Speaker 01:
You mean?

[00:13:06] Speaker 03:
In other words, if we agree with you,

[00:13:09] Speaker 03:
that there was no way to put the genie back in the bottle on this vouching issue.

[00:13:13] Speaker 03:
You win.

[00:13:15] Speaker 03:
If we don't agree with you, you lose.

[00:13:17] Speaker 03:
Is that right?

[00:13:17] Speaker 01:
At the trial, yes.

[00:13:18] Speaker 01:
I mean, that's what would happen at the trial because that was the whole case, the entire defense.

[00:13:22] Speaker 04:
But the district judge didn't just say something like, oh, you disregard that testimony.

[00:13:26] Speaker 04:
The district judge went on to explain to the jurors that you don't believe police officers just because they're police officers.

[00:13:32] Speaker 04:
You don't give their testimony any additional weight.

[00:13:34] Speaker 04:
It basically gave the curative instruction that seems like you requested.

[00:13:39] Speaker 01:
Well, I had to request.

[00:13:41] Speaker 04:
So you correctly requested that instruction the district judge gave it and then we have case law that says that we presume jurors follow instructions so they were immediately told oh no no no no just because these guys are police officers doesn't mean they're telling they weren't read that instruction but they were told that and they were told that which I think might be different from the actual reading of instructions

[00:14:01] Speaker 04:
But regardless, I mean, I- So they were given a curative instruction at the moment after this testimony occurs, and then they were also given the standard instructions about how to weigh credibility?

[00:14:10] Speaker 01:
By the standard instructions, yes.

[00:14:12] Speaker 01:
But I believe that there should have been- the court should have advised this jury that that was an improper argument by the prosecution, because at that point, they'd understand the reason the improper argument was done is for the purpose of the conviction at that time.

[00:14:25] Speaker 03:
Do you want to save any of your time, Mr. Carlos?

[00:14:27] Speaker 01:
I can have one minute.

[00:14:28] Speaker 03:
If you don't want to save, you don't have to.

[00:14:31] Speaker 01:
I don't think I have any time, do I?

[00:14:32] Speaker 04:
You have 51 seconds.

[00:14:33] Speaker 01:
51 seconds.

[00:14:34] Speaker 01:
I'll save 51 seconds if I need it.

[00:14:37] Speaker 01:
Very well.

[00:14:37] Speaker 01:
Thank you.

[00:14:39] Speaker 03:
All right.

[00:14:40] Speaker 03:
Mr. Svinivasan, are you by chance a relative of the chief judge of the D.C.

[00:14:46] Speaker 03:
Circuit?

[00:14:47] Speaker 00:
I am not, unfortunately, although he's a very nice man.

[00:14:52] Speaker 00:
Good morning and may it please the court.

[00:14:54] Speaker 00:
Rajesh Srinivasan for the United States.

[00:14:56] Speaker 00:
The government's reference during rebuttal to officers who had no reason to lie was not vouching.

[00:15:02] Speaker 00:
And regardless, substantial prejudice did not result from it.

[00:15:06] Speaker 00:
Because there was no error there, nor plain error elsewhere, this court should affirm.

[00:15:11] Speaker 00:
Unless the court wants to take me elsewhere, I'll start with the vouching issue.

[00:15:15] Speaker 00:
I agree with my colleague that the context is important for evaluating this comment.

[00:15:20] Speaker 00:
This comment came after defense counsel's strategy was to attack the credibility, the investigation of the officers in this case who testified.

[00:15:29] Speaker 00:
He said that they had bias, that they had an insufficient investigation, that they were lazy, that they were untruthful.

[00:15:39] Speaker 00:
The prosecution was entitled to respond to those criticisms by defending the credibility of its witnesses through an inference in the record.

[00:15:48] Speaker 00:
And that's all that happened in this case.

[00:15:50] Speaker 00:
Vouching occurs when there's either a personal assurance of credibility or the prosecutor refers to extra record evidence.

[00:15:58] Speaker 00:
Neither happened here.

[00:16:02] Speaker 00:
Common that the officers had no reason to lie was permissible under Wilkes.

[00:16:07] Speaker 00:
In Wilkes, a similar situation happened where defense counsels spent their argument attacking the prosecution's witnesses.

[00:16:16] Speaker 00:
And in response, the prosecution asked the jury to decide whether over a dozen witnesses lied to them or whether the defendant lied.

[00:16:25] Speaker 00:
And then the prosecutor explicitly answered the question for them and said the defendant lied.

[00:16:30] Speaker 00:
What we have here is an even milder response than that.

[00:16:33] Speaker 00:
All the prosecutor said was that the officers had no reason to lie.

[00:16:39] Speaker 00:
And he contrasted that to the defense's only witness, Kevin Lewis, who did have reason to lie because the record showed evidence of bias, both in the fact that he was a family member, the fact that he was called only a few days before trial to testify,

[00:16:54] Speaker 00:
and the fact that he lied multiple times on the stand.

[00:16:59] Speaker 00:
Regardless of whether there is vouching in this case, however, the immediate curative instruction ensured that any impermissible prejudice that resulted would have been cured.

[00:17:10] Speaker 00:
As this court has recognized in Washington,

[00:17:12] Speaker 00:
A prompt corrective action by the trial judge is usually sufficient to cure any problems.

[00:17:18] Speaker 04:
But here immediately after that curative instruction, the prosecutor again argued credibility, again went back to saying you're going to hear instructions and then you're going to find that the officers were credible.

[00:17:30] Speaker 04:
Did that create a situation where that curative instruction was not effective?

[00:17:34] Speaker 00:
Two responses, Your Honor.

[00:17:36] Speaker 00:
First, the court reviews this issue for plain error, which I think my colleague agrees with because counsel needs to make continuing, either ask for a continuing objection or object every time an impermissible comment was made.

[00:17:49] Speaker 00:
But besides that, what the prosecutor did in that second part

[00:17:52] Speaker 00:
was clearly permissible under this court's case law.

[00:17:55] Speaker 00:
Under DOS, for example, the government's allowed to frame its argument in terms of the jury instructions and then tell the jury how they think they should find based on those instructions.

[00:18:07] Speaker 00:
In doing so, it's clear to the jury that they are the ultimate arbiters of credibility and not the government.

[00:18:14] Speaker 00:
That would be especially true in this case,

[00:18:16] Speaker 00:
Because in the opening closing argument, another prosecutor framed the credibility issue purely in terms of what the jury decides.

[00:18:25] Speaker 00:
In fact, he said, you're the only ones who get to determine credibility.

[00:18:29] Speaker 00:
And then he referred to the credibility instructions.

[00:18:32] Speaker 00:
So by the time this comment came along and the subsequent comment framing in the terms of instructions, the jury had heard multiple times, both from the government and from the court,

[00:18:43] Speaker 00:
that they decide credibility and how to decide credibility issues.

[00:18:49] Speaker 00:
The fact that the immediate curative instruction came right after the only objective to comment, however, should be sufficient to cure any prejudice, particularly because it was tied to the particular objectionable comment that defense counsel raised, that because they're police officers, they're entitled for you to believe them.

[00:19:11] Speaker 00:
The district court made clear that that is not the case and that they need to be evaluated like any other witness.

[00:19:17] Speaker 00:
In addition to the immediate curative instruction, there is no prejudice in this case because there was a substantial amount of other evidence supporting the conviction.

[00:19:27] Speaker 00:
I respectfully disagree with my colleague about this.

[00:19:30] Speaker 00:
For one thing, the defendant was in fact found with 220 grams of pure meth, 240 grams of cut meth, as well as a loaded gun in that bag.

[00:19:40] Speaker 00:
is itself corroborates a statement that the testimony of the officers that he did indeed have a gun and drugs.

[00:19:49] Speaker 03:
Didn't they also go to his where he was staying and found additional drug paraphernalia and drugs?

[00:19:55] Speaker 00:
I don't believe that's the case.

[00:19:59] Speaker 00:
They didn't find any personal use paraphernalia, but they did find other things on his cell phone that indicated involvement in drug trading.

[00:20:09] Speaker 00:
For example, a text from the night before referring to the fact that he has white.

[00:20:14] Speaker 00:
He had texts connecting him to other dealers, both in terms of paying off debts and communicating with them.

[00:20:22] Speaker 00:
He had texts referring to meeting spots, which is another indicia of drug dealing.

[00:20:27] Speaker 00:
And all of these things were testified to by the expert witness in this case.

[00:20:31] Speaker 03:
I'm sure my memory on this must be confusing with another case.

[00:20:34] Speaker 03:
But didn't he say ultimately it was his girlfriend's stash, basically?

[00:20:41] Speaker 03:
Am I thinking of a different case?

[00:20:42] Speaker 00:
I don't think it was his girlfriend's stash.

[00:20:45] Speaker 00:
He said that another woman handed him the bag.

[00:20:48] Speaker 03:
OK, but didn't they find something in the place he was staying that he had just come out of?

[00:20:54] Speaker 03:
Didn't they find any drugs or other?

[00:20:55] Speaker 00:
It's possible that I'm misremembering the record, but I don't recall that in my review.

[00:21:00] Speaker 03:
We hear lots of these kind of cases, and they kind of mesh together sometimes.

[00:21:05] Speaker 03:
So bottom line is, from your perspective, there was other evidence, but it wasn't in the place where he was staying and so on.

[00:21:12] Speaker 00:
That's correct.

[00:21:13] Speaker 00:
There was other evidence.

[00:21:14] Speaker 00:
They found $3,500 of currency on him, an unusual thing to be carrying around if you're not a drug dealer when you're carrying drugs with you.

[00:21:22] Speaker 00:
They also found

[00:21:24] Speaker 00:
to the two phones, separate phones on him, yet again, another indicia of drug dealing.

[00:21:29] Speaker 00:
Most people.

[00:21:29] Speaker 04:
Wait a minute.

[00:21:30] Speaker 04:
Didn't that famously come up during a Supreme Court argument where some justice said, why would anybody have two phones unless they're a drug dealer, and then the other justices said, I have two phones?

[00:21:38] Speaker 04:
I mean, I'm not sure we can read much into the fact that he had two phones.

[00:21:42] Speaker 00:
I actually think that supports what I'm saying, because the reason why you have two phones in the case of a Supreme Court justice is one is your personal phone, one's your work phone.

[00:21:51] Speaker 00:
The same was true here.

[00:21:52] Speaker 00:
He had a personal phone, which we could not get into one of the phones.

[00:21:57] Speaker 00:
But the other phone appeared to be his work phone, where he communicated with people, potential customers, potential other drug connects, communicated meeting locations.

[00:22:07] Speaker 00:
So it was his work phone.

[00:22:09] Speaker 00:
And based off the other evidence in this case, his job was dealing drugs.

[00:22:14] Speaker 03:
So my memory apparently was not faulty on this, at least according to my notes here.

[00:22:20] Speaker 03:
But my notes say that after Officer Hensner also searched his person and found two cell phones, 3,500 in cash and various denominations, and a room key to the country inn and suites hotel.

[00:22:33] Speaker 03:
The officers found other indicia of drug trafficking in the hotel, including a bag of methamphetamine, a scale, a Ziploc bag, sandwich bags.

[00:22:41] Speaker 03:
So that's additional evidence, right?

[00:22:44] Speaker 00:
That is additional evidence.

[00:22:45] Speaker 00:
I have to admit, Your Honor, I don't recall in my review of the record reading that introduced

[00:22:50] Speaker 03:
at trial, but I could easily be misremembering the record on that.

[00:22:58] Speaker 03:
You're saying that may not have been introduced, but it's in the record.

[00:23:01] Speaker 03:
I don't know how it got in there if it wasn't introduced.

[00:23:04] Speaker 00:
It might well be, and I'm just misremembering the particular testimony.

[00:23:07] Speaker 04:
Wouldn't this whole case, all these issues not have occurred if the officers had just turned on the body cameras?

[00:23:15] Speaker 04:
I mean, they're getting out of the vehicle, they're going to approach him.

[00:23:18] Speaker 04:
It could have been recorded, and then there wouldn't be any question of who said what, when.

[00:23:24] Speaker 04:
I haven't seen argument from the parties about this, but what is the significance of the fact that they did not turn on their body cameras?

[00:23:33] Speaker 04:
Are there regulations or anything that apply that tell them when they have to turn them on?

[00:23:37] Speaker 00:
There are two responses, Your Honor.

[00:23:39] Speaker 00:
First is they didn't have body cameras at the time.

[00:23:42] Speaker 00:
And the policy of the office was not to turn on what they did have unless they were interviewing somebody.

[00:23:48] Speaker 04:
So they just had audio.

[00:23:49] Speaker 04:
They didn't have video.

[00:23:50] Speaker 00:
That's correct.

[00:23:51] Speaker 00:
They had audio.

[00:23:52] Speaker 00:
And the primary use of that, as testimony revealed at trial, was to record interviews in closed environment, in controlled environments.

[00:24:00] Speaker 00:
And that's not what was happening when they were pulling up to the defendant.

[00:24:03] Speaker 00:
They were in a rapidly evolving situation and worried about officer safety.

[00:24:08] Speaker 00:
And it was not policy at the time to always have the recording device on.

[00:24:12] Speaker 00:
So they happened to not turn it on when he made his spontaneous statement, which goes to show that he really truly was not in custody when he made that statement because officers didn't even have time to turn on their recording devices before he made the statement.

[00:24:26] Speaker 02:
AUSAs have an opportunity to go to training from time to time.

[00:24:30] Speaker 02:
Do you happen to know whether the Justice Department instructs and trains AUSAs regarding this vouching and what can be said permissibly

[00:24:41] Speaker 00:
We do instruct AUSAs on what constitutes vouching, and we do advise AUSAs to stray far away from the line.

[00:24:49] Speaker 00:
This comment here is perhaps closer to the line than comments in other cases, but it still falls on the line of permissible comments.

[00:24:56] Speaker 00:
But yes, we do have training that prosecutors receive on what constitutes vouching.

[00:25:03] Speaker 00:
The final thing I would say about the evidence in the case is he also had a prior conviction that was introduced, although it's not admissible to show propensity.

[00:25:12] Speaker 00:
It is admissible to show knowledge, lack of mistake, absence of mistake about what was in the bag.

[00:25:18] Speaker 00:
So even if it's not there to show that because he's a drug dealer once, he's always a drug dealer, it does undermine the defense's argument that he didn't know what was in the bag.

[00:25:28] Speaker 00:
Unless the court has any other questions.

[00:25:31] Speaker 03:
Other questions?

[00:25:32] Speaker 03:
I think not.

[00:25:33] Speaker 00:
We ask the court to affirm.

[00:25:34] Speaker 00:
Thank you.

[00:25:34] Speaker 03:
Thank you.

[00:25:35] Speaker 03:
All right.

[00:25:36] Speaker 03:
Mr. Carlos, we're going to really bump up your time.

[00:25:39] Speaker 03:
Give you two minutes.

[00:25:41] Speaker 03:
OK.

[00:25:41] Speaker 01:
I just want to answer the court's question regarding the motel room.

[00:25:45] Speaker 01:
So yes, there was in the reports, he came out of a motel room, the police went into the motel room.

[00:25:52] Speaker 01:
search the motel room there are other individuals there who were using drugs and they found the drug paraphernalia but it wasn't introduced against Mr. Jones because the other individuals were in the room.

[00:26:02] Speaker 03:
So the material that I referenced was there but you said other individuals also lived there and it wasn't tied to Mr. Jones?

[00:26:09] Speaker 01:
Correct.

[00:26:10] Speaker 01:
And I don't believe it was introduced against him.

[00:26:14] Speaker 01:
But that's important because, well, sort of important for the court's understanding is that he also told the agents that he was strung out on dope, that he was a heroin addict and a meth addict.

[00:26:26] Speaker 01:
So that would, and it's part of the, I think I maybe even alluded to that during the closing, is that he's a drug user, which would put him next to other drug users, which would mean why he would have drugs.

[00:26:37] Speaker 01:
We tried to combat the,

[00:26:40] Speaker 01:
the possession for sale by saying the individual could have this for himself just to use.

[00:26:46] Speaker 01:
And that's part of the cross-examination of the experts in this case.

[00:26:51] Speaker 01:
But going back to one of the comments from the government is that they want to say that the jury is the ultimate judge of the credibility.

[00:27:02] Speaker 01:
That's not what they did here.

[00:27:03] Speaker 01:
With the vouching here, I've been doing this a long time, and this is like the most extreme level of it that I've seen.

[00:27:09] Speaker 01:
I mean, because of the way it's broken down.

[00:27:12] Speaker 01:
You know, first of all, telling this jury that there is no stronger evidence, which is not right.

[00:27:16] Speaker 01:
It's incorrect.

[00:27:18] Speaker 01:
It's false.

[00:27:19] Speaker 01:
And they know it.

[00:27:20] Speaker 01:
And they said, but the word of two or three witnesses and the two of them are police officers, he identifies them and then says they have no motive to lie.

[00:27:29] Speaker 01:
So that drives into this jury, wow, these guys must know something.

[00:27:33] Speaker 01:
They're the government.

[00:27:35] Speaker 01:
I'm representing a guy whose face is tattooed, who has a long, lengthy criminal history, who apparently is found next to some bag of drugs, and there's a gun in there.

[00:27:46] Speaker 01:
They're alluding to some sort of danger that he has.

[00:27:49] Speaker 01:
But in the end, the question of knowledge is something that the jury must make that determination of.

[00:27:53] Speaker 01:
And there just wasn't evidence of it.

[00:27:56] Speaker 03:
Thank you very much.

[00:27:57] Speaker 03:
We appreciate an argument from both counsel.

[00:27:59] Speaker 03:
The case just argued is submitted.

[00:28:02] Speaker 03:
The court stands adjourned for the week with the proviso that, of course, the cases that we've submitted for tomorrow are effectively submitted as of that date.

[00:28:12] Speaker 03:
So with that exception, the court stands adjourned for the week.

[00:28:25] Speaker 04:
This court for this session stands adjourned.