[00:00:05] Speaker 04:
Good morning, Your Honors.

[00:00:06] Speaker 04:
May it please the Court.

[00:00:07] Speaker 04:
My name is Todd Borden from the Federal Defender's Office and I represent the appellant, Joshua Flores, and I'm going to try to save two minutes for rebuttal.

[00:00:16] Speaker 04:
Under Crawford, prior hearsay testimony may be admitted only if the witness is unavailable and the defendant had a prior opportunity for cross-examination.

[00:00:25] Speaker 04:
And the Court in Crawford defined the scope of the confrontation clause with reference to the common law right of confrontation as existed at the founding.

[00:00:32] Speaker 03:
And the Council can I just stop you there because I mean it is true that there's language in Crawford about the Sixth Amendment.

[00:00:42] Speaker 03:
There's some pretty broad language that says that the Sixth Amendment has to be interpreted based on the common law.

[00:00:48] Speaker 03:
But I think it's also clear that it didn't overrule, because the issue wasn't squarely presented, Ohio versus Roberts, which didn't look to the common law and look to the reasonableness.

[00:01:01] Speaker 03:
What do we do with that?

[00:01:05] Speaker 04:
Well, I would definitely point the court to Judge of Scanlon's concurrence in Sciota.

[00:01:09] Speaker 04:
I think that kind of outline really probably outlines the argument better than I made it in my brief.

[00:01:14] Speaker 04:
But, you know, the argument there is, you know, the methodology of Crawford really does look

[00:01:20] Speaker 04:
overwhelmingly to those common law principles to determine what the scope of the confrontation right is.

[00:01:27] Speaker 04:
And the common law unavailability requirement was simply just much more robust than sort of what has developed.

[00:01:34] Speaker 03:
I don't necessarily disagree with you, although we can have that discussion.

[00:01:37] Speaker 03:
My question is, do we get there?

[00:01:38] Speaker 03:
Because the other problem that you have is not only the fact that most other courts have still applied Ohio versus Roberts,

[00:01:49] Speaker 03:
And Judge O'Scanlons was a concurrence.

[00:01:52] Speaker 03:
I might even agree with him in theory, but we have a 2023 case just from last year that said that Roberts continues to apply for unavailability.

[00:02:06] Speaker 03:
And in that case, it was because the witness was out of the country.

[00:02:09] Speaker 03:
So now we have the Supreme Court saying making a reasonable attempt is the test under Ohio versus Roberts.

[00:02:20] Speaker 03:
And now we have the Ninth Circuit saying that that same rule applies if they're unavailable, if they're outside the country.

[00:02:25] Speaker 03:
How do we then come in and say, well, there's a different test.

[00:02:29] Speaker 03:
We're going to look to the common law if they're unavailable because they're ill.

[00:02:33] Speaker 03:
but we're going to look to Ohio versus Roberts if they're unavailable because they're out of the country.

[00:02:39] Speaker 04:
A couple of points, Your Honor.

[00:02:40] Speaker 04:
So first, I think it's important to emphasize that the argument I'm making here and the argument the defendant in Chiota made about the sort of common law rule was not raised in those cases.

[00:02:54] Speaker 04:
So even though those are post-Crawford cases, the argument repeating the prior rule when this particular argument has been made doesn't bind this court.

[00:03:03] Speaker 04:
I mean, that's exciting.

[00:03:04] Speaker 03:
Well, what's the basis for that?

[00:03:05] Speaker 03:
I'm not aware of that.

[00:03:07] Speaker 03:
I mean, if we have a holding of the court, we're bound by the holding of the court.

[00:03:10] Speaker 03:
Now, it might be wrong.

[00:03:12] Speaker 03:
Maybe we should seek en banc review, but I can't imagine that we have the authority to just dismiss and not follow.

[00:03:21] Speaker 03:
Perhaps we can distinguish, which is what I'm trying to give you an opportunity to help me distinguish.

[00:03:26] Speaker 03:
I'm not sure how to do it logically, but I don't think we can just say, well, this argument wasn't made.

[00:03:32] Speaker 03:
And so therefore we can reject a prior holding of this court.

[00:03:36] Speaker 04:
So I guess I would point the court to the case I cited in my reply brief.

[00:03:40] Speaker 04:
That's curioluke.

[00:03:41] Speaker 04:
And it stands for the principle that the president must squarely address the issue, this particular arguments that are being made in order to bind the court.

[00:03:49] Speaker 04:
I didn't cite this in my reply brief.

[00:03:51] Speaker 04:
I can do it in a 28-J letter if you like.

[00:03:53] Speaker 04:
But the Castillo decision also is another one that came out recently.

[00:03:55] Speaker 04:
That was about the- That was Ninth Circuit?

[00:03:57] Speaker 04:
That's right.

[00:03:57] Speaker 04:
That was about the deference to guidelines commentary issue that's been percolating.

[00:04:02] Speaker 00:
But I guess my concern with this council is even as recently as 2011 with Hardy versus Cross, it's cited to the rule from Barbara versus Page, which Ohio versus Roberts then adopted.

[00:04:14] Speaker 00:
It seems to continue to be the prevailing, controlling thing that we look at unavailability based on

[00:04:24] Speaker 00:
the government making good faith efforts to try to reach witnesses.

[00:04:28] Speaker 00:
And how can that square with your theory that the only way that someone can be unavailable is if they're not alive anymore?

[00:04:37] Speaker 04:
Well, so I disagree, Your Honor, that Hardy is controlling here.

[00:04:41] Speaker 04:
I think it's important to look at the procedural posture of that case.

[00:04:44] Speaker 04:
It was a summary reversal of a 2254 situation.

[00:04:47] Speaker 04:
And under Teague, they were not actually even applying Crawford.

[00:04:51] Speaker 04:
They were looking- It was a habeas case.

[00:04:54] Speaker 03:
It was a habeas case.

[00:04:54] Speaker 03:
And it wasn't applying.

[00:04:56] Speaker 03:
It was applying.

[00:04:57] Speaker 00:
applying Ohio because because it was because the appellate decision at the time that was being challenged under 2254 was pre Crawford so I think that there's limited but even Crawford even Crawford itself even though it abrogated Ohio versus Roberts with with respect to one part of the decision

[00:05:14] Speaker 00:
went on to discuss favorably both Maddox and Barber on the unavailability point and was citing it with approval.

[00:05:24] Speaker 00:
So I guess what you're asking us is to say that Crawford overruled Ohio versus Roberts in its entirety even though several cases seem to disagree with that point.

[00:05:36] Speaker 04:
toiling in a field that I might not succeed, but I guess I would just say that, or urge the court to look to Judge O'Scanlan's concurrence.

[00:05:42] Speaker 02:
I think- I wanna ask a pragmatic question here.

[00:05:47] Speaker 02:
Sure.

[00:05:47] Speaker 02:
It is true that we don't have any cases from the Supreme Court that talk about unavailability as to death or illness, right?

[00:05:53] Speaker 04:
That's right.

[00:05:53] Speaker 02:
So we would be applying the Roberts rule by analogy and just saying, they talked about that in the context of unavailability, here's a new category of unavailability.

[00:06:01] Speaker 02:
That's all we're left with, right?

[00:06:03] Speaker 04:
I'm not sure I follow it, Your Honor.

[00:06:04] Speaker 02:
So you can be unavailable for multiple reasons, right?

[00:06:07] Speaker 02:
You're out of the country.

[00:06:08] Speaker 02:
You're dead.

[00:06:09] Speaker 02:
The defendant disappeared you.

[00:06:12] Speaker 02:
I mean, there's other ways to be unavailable.

[00:06:15] Speaker 02:
And the Roberts rule was addressed in a context different than what we have in this case.

[00:06:20] Speaker 04:
That's right.

[00:06:20] Speaker 04:
That's right.

[00:06:21] Speaker 02:
So the thing I'm struggling with all of that was to lead up to this question.

[00:06:24] Speaker 02:
The Roberts rule is the government has to make reasonable efforts to get the witness.

[00:06:29] Speaker 02:
And that makes sense when the witness is out of the country or missing or whatever and we want the government to find the person, try to get them to court.

[00:06:36] Speaker 02:
What would the government reasonably do to get an ill witness to court?

[00:06:43] Speaker 04:
I mean, in this case, one thing trial counsel certainly raised was getting an escort to help them through the airport, things like that.

[00:06:49] Speaker 04:
I mean, this was sort of more of a disability than a sickness sort of illness.

[00:06:52] Speaker 04:
But again, that's really not the argument.

[00:06:55] Speaker 04:
We're pressing so much here on appeal.

[00:06:57] Speaker 04:
I did want to pivot.

[00:06:58] Speaker 03:
Well, I think you should be pressing it.

[00:07:00] Speaker 03:
I think Judge Forrest is throwing you a lifeline here trying to distinguish these other cases.

[00:07:04] Speaker 03:
And that's the issue we're struggling with.

[00:07:06] Speaker 04:
Your Honor, my time is running a little low.

[00:07:08] Speaker 04:
I did want to pivot to the other independent basis that I cited, which is the prior opportunity for cross-examination being an in-person cross-examination.

[00:07:15] Speaker 04:
You know, as I cited in my brief, I think that is an independent basis.

[00:07:18] Speaker 04:
The 19th century cases are pretty clear that it always needed to be in person, and there just wasn't an opportunity here.

[00:07:23] Speaker 04:
So even if I'm not necessarily persuading the court on the issue of the sort of originalist point, and the initial point, that is a separate independent basis.

[00:07:31] Speaker 03:
And by the way, thank you for raising the originalist point.

[00:07:33] Speaker 03:
I hate to be the one to pour cold water on it,

[00:07:37] Speaker 03:
Well, you know, you need to do more of it.

[00:07:41] Speaker 04:
That's what we're doing.

[00:07:43] Speaker 04:
But I do want to I do think it's important to emphasize that is an independent separate basis.

[00:07:47] Speaker 00:
And there was let me let me let's let's start with this.

[00:07:50] Speaker 00:
The government is contending that there was waiver or that essentially your clients acceded to this suppression hearing done by Zoom.

[00:07:59] Speaker 00:
Right.

[00:08:00] Speaker 00:
And I understand your point to be, well, this was during covid and there was no other choice.

[00:08:05] Speaker 00:
That's right.

[00:08:05] Speaker 00:
So how do we grapple with that?

[00:08:10] Speaker 00:
You have a modern technology that allows someone to be cross-examined and a client who exceeded to that under not ideal circumstances, but there was cross-examination in the hearing.

[00:08:22] Speaker 00:
But it's not quite on all fours with the notion of complete waiver, because he would have preferred an in-person.

[00:08:30] Speaker 00:
So how do we deal with those competing issues?

[00:08:34] Speaker 04:
So two points.

[00:08:34] Speaker 04:
I really point the court to Barber versus Page.

[00:08:37] Speaker 04:
And that Supreme Court decision kind of lays out the waiver analysis.

[00:08:42] Speaker 04:
And in that case, the defendant had no way of knowing at the time of the preliminary hearing that the witness would later become unavailable.

[00:08:50] Speaker 04:
And they said, you could only waive your confrontation right if it's an intentional relinquishment of a known right.

[00:08:56] Speaker 04:
And I would say Mr. Flores had no way of knowing

[00:08:59] Speaker 04:
that Ranger Schultz's condition would deteriorate such that he would later become unavailable.

[00:09:05] Speaker 00:
So I think, you know... And I take it, you know, the government's response has been an opportunity to cross-examine is enough, and I think that's a bit of a...

[00:09:17] Speaker 00:
aggressive argument, but I would say there was cross-examination.

[00:09:22] Speaker 00:
So my question to you then would be, what limited defense counsel's ability to cross-examine this witness in the absence of having to be doing so in person?

[00:09:36] Speaker 04:
I mean, I guess part of it is, I mean, I think we're really emphasizing that there's a separate right to face-to-face encounter, looking back, and that aspect was denied.

[00:09:46] Speaker 04:
I mean, we're not really making arguments about the sufficiency of the opportunity in the sense of what was probed.

[00:09:50] Speaker 04:
It was more the ability to actually see the person whose testimony is going to potentially affect your liberty.

[00:09:56] Speaker 04:
I have utterly failed to say- You can answer our question.

[00:09:59] Speaker 04:
Okay, sorry.

[00:10:00] Speaker 04:
And don't worry, we'll give you- if we keep you over, you got- I've been so lucky.

[00:10:04] Speaker 02:
I want to ask you about harmlessness.

[00:10:06] Speaker 04:
Sure.

[00:10:06] Speaker 02:
Do you agree that if all of the events that were necessary to support the convictions are shown on the video, that Officer Schultz's testimony and whether it was present or not is a harmless situation?

[00:10:22] Speaker 04:
OK, so a few responses to that.

[00:10:23] Speaker 04:
I do think that the beginning of the counter was not captured on video.

[00:10:28] Speaker 02:
I know that.

[00:10:30] Speaker 02:
So I'm asking you to assume that if all of the events necessary for the court to render the verdict that it

[00:10:40] Speaker 02:
rendered are depicted on the video, is it a harmless error?

[00:10:44] Speaker 04:
If the court can determine beyond reasonable doubt, again, it's the Chapman elevated.

[00:10:49] Speaker 04:
It's not just plain vanilla harmlessness.

[00:10:51] Speaker 04:
This is the most elevated standard.

[00:10:53] Speaker 04:
But if the court can reach that determination, yes.

[00:10:55] Speaker 04:
I would note, though, that the body-worn video, at least, came in through Schulz's testimony.

[00:10:59] Speaker 04:
So that is potentially a complicating factor there.

[00:11:02] Speaker 04:
But I do think I do.

[00:11:06] Speaker 02:
Is it your contention that it couldn't come in?

[00:11:08] Speaker 02:
Like, it couldn't be authenticated by one of the other officers?

[00:11:10] Speaker 04:
Well, I mean, I guess it's hard to say.

[00:11:12] Speaker 04:
The government says that the residual exception would apply.

[00:11:13] Speaker 04:
It's not totally clear, I think.

[00:11:19] Speaker 02:
So then I guess the next question is, what do you think that isn't on the video that would be necessary for the verdict?

[00:11:27] Speaker 04:
So I would say that,

[00:11:28] Speaker 04:
I do want to pivot to what sort of triggered this encounter, because when the videos both start, it is extremely escalated scenario.

[00:11:35] Speaker 04:
And we do have some of the non-law enforcement witnesses, his ex-girlfriend and the 911 caller, are both testifying that the officers definitely came in kind of hot and were very aggressive.

[00:11:46] Speaker 04:
And so getting the testimony from Schultz, who was the lead officer, who was the only one in uniform, who was giving the commands that were the basis for some of the charges,

[00:11:58] Speaker 04:
you know, getting his testimony about what sort of triggered this was important.

[00:12:02] Speaker 04:
Also, the defense position was that Rivera was the less credible of the two witnesses.

[00:12:06] Speaker 04:
That's an excerpt of record 100 to 104.

[00:12:08] Speaker 04:
So, you know, if you remove the less credible of the two law enforcement officers that we think that's problematic.

[00:12:14] Speaker 02:
I get the point that the district court raised about there's a difference between cumulative and corroborative and if something is corroborating challenged.

[00:12:22] Speaker 02:
testimony, then you can't just say it's cumulative and it doesn't matter.

[00:12:26] Speaker 02:
My problem is I went back to the magistrate judge's decision and tried to identify all the things that she referenced in support of the three offenses.

[00:12:35] Speaker 02:
And it seems to me that she's referencing things that are all depicted on the video, so we didn't really need his testimony about what happened before the video.

[00:12:44] Speaker 04:
Yeah, I guess I would say that sort of what triggered this situation is relevant to the mens rea elements, which one and two have a mens rea element.

[00:12:51] Speaker 04:
And the defense theory was always that sort of, you know, my client had some mental health problems, anxiety, possible PTSD, and that sort of this encounter with the officer sort of triggered.

[00:13:01] Speaker 02:
I'm sorry, we're taking over, but I really, I want to drill down on this a little bit.

[00:13:04] Speaker 02:
So.

[00:13:05] Speaker 02:
She says that for the interference charge, he was told to put his arms behind his back so that they could handcuff him, and he didn't do it.

[00:13:13] Speaker 02:
You watch the video, all of that is depicted.

[00:13:15] Speaker 02:
You can make an assessment about whether he did what he was directed to or not.

[00:13:20] Speaker 02:
Why do we need stuff that happened before the video started to know whether he did that with the proper mental state?

[00:13:27] Speaker 04:
I mean, our position is that if he's having some sort of

[00:13:32] Speaker 04:
episode and it's sort of spiraling or whatever, if that's what happened and what happened in the beginning pre-video would certainly inform that.

[00:13:42] Speaker 03:
Schultz doesn't speak to that.

[00:13:43] Speaker 03:
What testimony can you point to in Schultz that would support your theory that he was having an episode?

[00:13:53] Speaker 04:
I think it's more just the sort of adding to the context and I think it's more sort of a subtraction sort of you know if you agree with us that Rivera was his testimony was was if you're then you're sort of left only with Schultz and if he's gone then you know that's that's sort of the position we're taking with that.

[00:14:07] Speaker 04:
And finally, I would note that Judge Chesney, who's pretty experienced, did determine it wasn't harmless.

[00:14:14] Speaker 04:
So I think that's certainly entitled to some weight.

[00:14:17] Speaker 04:
And I've gone massive.

[00:14:18] Speaker 03:
I wanted to ask about that.

[00:14:20] Speaker 03:
Do we review that for de novo review, or do we review that de novo, or do we give it to... I mean, you said it's entitled to some weight, and that was a question I had, because... So I guess I would say, no.

[00:14:32] Speaker 04:
I couldn't find a case directly on it.

[00:14:34] Speaker 04:
I mean, I certainly tried, but this is...

[00:14:36] Speaker 04:
The universe of case law about magistrate appeals is somewhat limited.

[00:14:42] Speaker 04:
But it would have to be de novo.

[00:14:45] Speaker 04:
I can't think of any reason why a subsequent appellate court would be doing anything other de novo.

[00:14:48] Speaker 04:
All that said, though, I do think

[00:14:52] Speaker 04:
I think it's an important data point.

[00:14:56] Speaker 04:
I would point to the D.C.

[00:14:58] Speaker 04:
Circuit opinion I cited in my brief talking about if it's debatable about whether or not it tipped the scales.

[00:15:04] Speaker 04:
I think it suggests that maybe if Judge Chesney reached that view.

[00:15:06] Speaker 04:
But I have gone to a massive ... Yeah, no, you haven't.

[00:15:08] Speaker 03:
We'll give you a minute for rebuttal.

[00:15:09] Speaker 04:
Okay, I appreciate that, Your Honor.

[00:15:23] Speaker 01:
Good morning, Your Honor, and may it please the Court.

[00:15:26] Speaker 01:
My name is Ross Mazur on behalf of the United States.

[00:15:29] Speaker 01:
Admitting Officer Schultz's prior testimony satisfied the standard in Crawford.

[00:15:34] Speaker 01:
The officer was medically unavailable at the time of trial, and the defendant had a prior opportunity to, and in fact did cross-examine him.

[00:15:42] Speaker 03:
Can I ask a more basic question?

[00:15:44] Speaker 03:
Why did you offer Schulz's testimony at trial?

[00:15:48] Speaker 03:
I don't know if you were trial counsel, but why did the government offer it?

[00:15:52] Speaker 03:
Because now you're in saying, well, it's harmless error because we had everything else we needed.

[00:15:56] Speaker 03:
And you knew that there was a confrontation clause problem.

[00:16:00] Speaker 03:
So why wasn't the decision just strategically made?

[00:16:03] Speaker 03:
Let's take this off the table because we got enough to go with otherwise.

[00:16:08] Speaker 01:
Yeah, I think in retrospect, it should have been because we didn't need it.

[00:16:14] Speaker 01:
We didn't rely on it really.

[00:16:15] Speaker 03:
Ultimately, our... You just wanted to give us a fun issue.

[00:16:17] Speaker 01:
Is that the real answer?

[00:16:19] Speaker 01:
I always try to help out if I can.

[00:16:23] Speaker 01:
Ultimately, we thought it was admissible.

[00:16:26] Speaker 01:
He wasn't available, and so we admitted it.

[00:16:28] Speaker 01:
But in retrospect, it just wasn't necessary.

[00:16:30] Speaker 02:
Below you argued that he wasn't available because the rule of evidence 804 was satisfied with regard to the unavailability standard.

[00:16:38] Speaker 02:
Is that your position still?

[00:16:41] Speaker 01:
Our position, yes, we believe Rule 804 was satisfied, but the defense doesn't challenge Rule 804 or make any hearsay claim whatsoever.

[00:16:50] Speaker 01:
Our position was also that the Confrontation Clause is satisfied.

[00:16:53] Speaker 02:
That's my question.

[00:16:55] Speaker 02:
Below, it seemed pretty clear that the government's position was that the Confrontation Clause issue was governed by the Rule 804 standard.

[00:17:08] Speaker 01:
It's true that I don't see a reason to distinguish rule 804 from the confrontation clause with respect to the specific question of whether a witness is sufficiently ill.

[00:17:19] Speaker 02:
Why is that true when Crawford tells us that the rules of evidence don't govern the confrontation clause?

[00:17:26] Speaker 01:
I'm sorry, Your Honor.

[00:17:27] Speaker 02:
Why is that true when Crawford clearly tells us that the rules of evidence do not govern confrontation clause issues?

[00:17:35] Speaker 01:
Even if it's not, the standard for unavailability is still governed by Roberts, whereby the government has to make a good faith or reasonable effort to obtain the witness's presence at trial.

[00:17:53] Speaker 03:
Did you argue that below?

[00:17:54] Speaker 03:
Was Roberts argued below?

[00:17:57] Speaker 01:
I don't know that Roberts was specifically cited below, but we argued that the confrontation clause was satisfied.

[00:18:05] Speaker 01:
And on appeal, we've developed that argument, the same standard.

[00:18:09] Speaker 01:
Crawford did not change the standard.

[00:18:12] Speaker 01:
for unavailability.

[00:18:13] Speaker 01:
This court has held as much.

[00:18:16] Speaker 01:
The defense has not challenged whether the facts meet that standard.

[00:18:20] Speaker 01:
They've only challenged the legal standard itself, whether only a witness's death will render the witness unavailable.

[00:18:27] Speaker 01:
That argument is foreclosed and all this court... So if Ohio versus Roberts was not argued below and the standard

[00:18:36] Speaker 03:
wasn't argued below, are you arguing there's a waiver issue?

[00:18:41] Speaker 03:
If we find that Ohio versus Roberts controls here, do we just find that the defendant has waived his argument or forfeited it because he didn't discuss Ohio versus Roberts below?

[00:18:55] Speaker 01:
Well, the defense has waived any argument that the facts don't meet the correct legal standard.

[00:19:01] Speaker 03:
Right.

[00:19:01] Speaker 03:
And that's my question.

[00:19:02] Speaker 03:
So you're saying that we can't do an independent

[00:19:05] Speaker 03:
I think you're saying that if we find Ohio versus Roberts applies, we can't do an independent analysis of whether it meets reasonableness.

[00:19:14] Speaker 01:
Well, I would say that to resolve the unavailability in this case, the court doesn't need to.

[00:19:20] Speaker 01:
And that's the easiest way.

[00:19:23] Speaker 01:
The defense hasn't raised that.

[00:19:25] Speaker 01:
Why?

[00:19:25] Speaker 03:
Because of the harmless?

[00:19:26] Speaker 03:
We can say it was just harmless?

[00:19:29] Speaker 03:
Because if Ohio versus Roberts applies, they theoretically could, whether they've argued it, argue that the government didn't take reasonable efforts.

[00:19:40] Speaker 03:
I mean, if there was something easy that the government could have done and it refused to do it, presumably even under Ohio versus Roberts, you'd have a confrontation cause problem.

[00:19:49] Speaker 01:
Yes, Your Honor, theoretically, they could have made that argument, but they didn't.

[00:19:55] Speaker 01:
And so I think they've waived it in that respect.

[00:19:58] Speaker 00:
So what about your argument about needing a live to be in person for the suppression hearing itself and that it wasn't waived because Mr. Flores was constrained to do so because of COVID?

[00:20:13] Speaker 01:
Well, the trial court offered him the opportunity for an in-person hearing.

[00:20:18] Speaker 01:
He twice waived that once in writing and once at the start of the suppression hearing.

[00:20:25] Speaker 01:
And when, in fact, the defendant changed his mind at the last minute about whether to hold a trial in person, he had previously consented to a trial remotely.

[00:20:34] Speaker 01:
And when he changed his mind, even though it was at the last minute, the court honored its promise to hold it in person.

[00:20:41] Speaker 01:
And then the court did.

[00:20:42] Speaker 01:
So there was no question that all of the parties understood that the court would not proceed remotely at either the hearing or the trial without both parties' consent.

[00:20:52] Speaker 01:
The defendant consented to proceed remotely at the hearing.

[00:20:55] Speaker 01:
but not at the trial.

[00:20:57] Speaker 01:
And so the court held the hearing remotely and the trial in person.

[00:21:02] Speaker 00:
So had Officer Schultz moved to Philadelphia at that point by when this... So would there have been a different issue with his appearance had the defendant asked for an in-person suppression hearing?

[00:21:18] Speaker 01:
The officer became unavailable in between the suppression hearing and the trial, so in that respect I don't think so.

[00:21:29] Speaker 01:
If the court has any questions about the second prong of Crawford, the government has argued that the defendant had the opportunity for cross-examination for two reasons, because

[00:21:42] Speaker 01:
because the requirement of in-person confrontation has nothing to do with the admission of testimonial hearsay.

[00:21:50] Speaker 01:
That applies only to live testimony at trial.

[00:21:53] Speaker 01:
And second, alternatively, even if it did, the defendant had that opportunity for in-person confrontation when the judge offered him an in-person hearing, but he declined it.

[00:22:05] Speaker 01:
And lastly, just on the harmlessness point, the centerpiece of the defendant's case was a psychologist expert who opined that the defendant suffered from PTSD.

[00:22:18] Speaker 01:
The trial court made an adverse credibility finding, which the defense has not challenged on appeal.

[00:22:23] Speaker 01:
All of the offense conduct, all of it, was captured on the video.

[00:22:28] Speaker 01:
Officer Rivera testified from start to finish about everything that happened.

[00:22:33] Speaker 01:
Officer Aguerriano arrived early in the counter and testified to at least some of the interfering acts with agency functions and to the disorderly conduct.

[00:22:42] Speaker 01:
And Officer Henner, who we also called, confirmed the defendant's state of intoxication.

[00:22:51] Speaker 00:
Unless the court has... I do.

[00:22:53] Speaker 00:
So under Chapman, the standard is if there's no reasonable probability that the evidence might have contributed to the conviction.

[00:23:02] Speaker 00:
So even if there was the video evidence, why isn't it enough if there's some question whether Officer Schulz's testimony

[00:23:14] Speaker 00:
would have, you know, tilted in favor of crediting, I'm sorry, I'm trying to remember the other officer's name, Rivera's testimony, or do something that would shed light on his intent in order to raise that question as to being harmful?

[00:23:31] Speaker 01:
So first, on the legal standard, I agree that Chapman's standard is a high one, but it's not an impossibly high one.

[00:23:37] Speaker 01:
And I would point the court to Sciota, where two civil depositions were improperly admitted

[00:23:45] Speaker 01:
in violation of the confrontation clause.

[00:23:47] Speaker 01:
The court characterized them as important in the government's case.

[00:23:50] Speaker 01:
Nevertheless, it found that the confrontation clause error was harmless under that standard.

[00:23:56] Speaker 01:
But on the facts of the case, the defense heavily relied on Officer Schulz's existing testimony, which they thought benefited them, whereas the government didn't rely on it at all.

[00:24:11] Speaker 01:
The videos showed what Officer Schultz said and did.

[00:24:15] Speaker 01:
And so in order to prove what he said, we didn't need his testimony.

[00:24:20] Speaker 01:
We could just watch the videos.

[00:24:22] Speaker 01:
And as to intent, the argument about intent relied on the defense argument about PTSD, that the officers had triggered a PTSD episode.

[00:24:33] Speaker 01:
First, the physical conduct where Officer Schultz did an open hand palm slap

[00:24:41] Speaker 01:
to distract the defendant while he was being handcuffed was caught on video.

[00:24:46] Speaker 01:
So we saw that.

[00:24:47] Speaker 01:
And second, the psychologist expert who opined on PTSD was found to be incredible.

[00:24:53] Speaker 01:
So there was no question about intent.

[00:24:55] Speaker 01:
Officer Schultz's testimony didn't speak to that.

[00:25:00] Speaker 01:
We would ask that the court affirm.

[00:25:02] Speaker 01:
Thank you.

[00:25:02] Speaker 01:
Thank you.

[00:25:10] Speaker 04:
Just a couple of quick points on the opportunity for an in-person evidentiary hearing.

[00:25:15] Speaker 04:
I think as a factual matter,

[00:25:18] Speaker 04:
You know, I think Mr. Flores, to some extent, the government is trying to hold Mr. Flores' trials, counsel's accommodations against Mr. Flores, but I don't think if counsel had been more kind of disagreeable and said, no, I want in-person, it could have actually happened.

[00:25:33] Speaker 04:
I urge the court to look to the Northern District's general order and effect the time.

[00:25:37] Speaker 04:
I don't think an in-person hearing could have happened if he insisted, and there's no confrontation right in an evidentiary hearing, so I think it's a factual matter whether or not it ever could have been in-person is highly, highly, highly questionable.

[00:25:48] Speaker 04:
On harmlessness, you know, I do agree with Judge, you know, I think Judge Nelson raises a good point that the government certainly thought this was important and, you know, insisted on introducing it.

[00:25:59] Speaker 04:
So I think that is something to take into account.

[00:26:02] Speaker 04:
Also, the fact that defense cited Schultz's testimony, I think really just suggests that they were doing what they could strategically based off the rulings that were made.

[00:26:10] Speaker 04:
I don't think that necessarily shows it wasn't harmless.

[00:26:12] Speaker 04:
And finally, I do want to just suggest as to intoxication, the evidence here was not especially overwhelming.

[00:26:17] Speaker 04:
There was no field sobriety test.

[00:26:18] Speaker 04:
There was no blood alcohol test.

[00:26:20] Speaker 04:
And the standard is quite high for that case under this court's case law.

[00:26:24] Speaker 04:
So for all those reasons, I would urge the court

[00:26:26] Speaker 04:
to reverse.

[00:26:27] Speaker 03:
Thank you.

[00:26:28] Speaker 03:
Thank you to both counsel for your arguments in the case.

[00:26:30] Speaker 03:
The case is now submitted