[00:00:00] Speaker 02:
Good morning, counsel.

[00:00:02] Speaker 03:
May it please the court?

[00:00:04] Speaker 03:
My name is David Teal and I represent Mr. Kyle Matthew Thompson.

[00:00:08] Speaker 03:
I will try to watch the clock and I will attempt to save approximately three minutes of time.

[00:00:14] Speaker 02:
All right.

[00:00:16] Speaker 03:
As this court knows, Mr. Thompson's first trial ended in a hung jury when a reasonable and rational jury concluded that the government's evidence was insufficient.

[00:00:30] Speaker 02:
But they weren't unable to reach a verdict.

[00:00:32] Speaker 02:
They didn't reach any conclusion.

[00:00:34] Speaker 03:
Correct.

[00:00:36] Speaker 03:
They were unable to reach a verdict.

[00:00:38] Speaker 03:
There was no known conclusion.

[00:00:39] Speaker 02:
Correct.

[00:00:42] Speaker 03:
Now, heading into retrial and even prior to the first trial, we have a series of legal errors that are outlined in the briefs that were compounded over time.

[00:00:55] Speaker 03:
At retrial,

[00:00:57] Speaker 03:
We have a series of cumulative errors that ultimately deprived Mr. Thompson of a right to fair trial.

[00:01:07] Speaker 03:
Those decisions of the court took evidence that the jury had heard at the first trial out of their hands and made it so that they were unable to consider that evidence.

[00:01:18] Speaker 02:
What's our standard of review on that issue, counsel?

[00:01:21] Speaker 03:
Oh, I was, I think that if it, I think on the motion and eliminate issue, taking the evidence out of the hands, I think the evidentiary component is de novo.

[00:01:31] Speaker 02:
And then I think that- And the evidentiary ruling is reviewed de novo.

[00:01:33] Speaker 03:
I'm sorry, a review of the rules of whether or not the rule is applicable, the rule of evidence is applicable would be de novo.

[00:01:39] Speaker 03:
And then I think that the, it's an abusive discretion standard on the rest of the analysis.

[00:01:46] Speaker 01:
What did you, what part did you say was de novo?

[00:01:49] Speaker 03:
I was under the impression that the analysis of whether the rule of evidence would bar the court's ... would shape the court's rationale, I guess.

[00:02:02] Speaker 01:
You don't think that's abusive discretion?

[00:02:05] Speaker 03:
Unfortunately, I don't have the case.

[00:02:06] Speaker 03:
I was reviewing this morning and I thought it was kind of a mixed bag, so I thought there was de novo as to one aspect.

[00:02:13] Speaker 03:
abuse of discretion as to the other.

[00:02:14] Speaker 02:
So if the district court applied a rule that didn't apply to the situation, that would be a legal error, that would be de novo review in your... That's my understanding of it.

[00:02:25] Speaker 02:
So could you give us an example of how that would work where a district court committed de novo review in applying an evidentiary, de novo error in applying an evidentiary rule?

[00:02:38] Speaker 03:
I think... That's a good question, Judge, or Your Honor.

[00:02:44] Speaker 02:
Well, don't spend your time on it if you don't have an answer for it.

[00:02:48] Speaker 01:
I don't have an example.

[00:02:48] Speaker 01:
Why don't you assume, for purposes of your argument, that we're looking at this on the basis of abuse of discretion, as most evidentiary issues are, unless you have a case to the contrary.

[00:03:02] Speaker 02:
Yes, Judge.

[00:03:02] Speaker 02:
Fair enough.

[00:03:03] Speaker 02:
So how is there an abuse of discretion?

[00:03:06] Speaker 02:
If you take it that we're reviewing these evidentiary rulings for abuse of discretion, tell us how the district court abuse this discretion.

[00:03:14] Speaker 03:
So if we're talking, I think we're moving then to the discussion about the ruling on the motion and lemonade, which precluded Mr. Thompson from discussing the fact that charges were not brought in Alabama.

[00:03:29] Speaker 03:
We are at the first trial, the court heard testimony and evidence that included a very controlled

[00:03:38] Speaker 03:
recitation of the fact that Alabama charters were not brought.

[00:03:42] Speaker 03:
The jury in that case was not confused.

[00:03:45] Speaker 03:
The court in our case even made comments in ruling on this new motion to eliminate that there was no jury confusion.

[00:03:51] Speaker 03:
So the court granted the state or government's motion to eliminate, but went on to say, well, the caveat here is I'm going to note for the record that there was not jury confusion that I recall.

[00:04:04] Speaker 03:
There wasn't an issue with that.

[00:04:06] Speaker 02:
But wasn't that the district court sat through the first trial, heard all the evidence, and then at the second trial decided that the evidence of lack of charges would create perhaps some confusion.

[00:04:19] Speaker 02:
Different jury, the past jury wasn't confused ostensibly, but they were unable to reach a verdict.

[00:04:26] Speaker 02:
And so maybe the district court having heard the first trial in

[00:04:31] Speaker 02:
the discretion decided, we're going to remove that so as to eliminate any possible confusion.

[00:04:39] Speaker 02:
What's wrong with that?

[00:04:40] Speaker 03:
Well, I think there was no evidence of that.

[00:04:43] Speaker 03:
I think in this particular case, it was necessary to allow the jury to hear that because the government's case was premised entirely, not entirely, ostensibly

[00:04:56] Speaker 03:
It was a case based out of Alabama.

[00:04:59] Speaker 03:
It was built and investigated by Alabama local authorities.

[00:05:03] Speaker 03:
And it was a traveling case.

[00:05:05] Speaker 03:
So it's a 3237A case where they're alleging that some intent was formulated in Arizona that was sufficient.

[00:05:13] Speaker 03:
That's where we get into the venue issue.

[00:05:15] Speaker 01:
My counsel, I know my colleagues ask you this indirectly.

[00:05:21] Speaker 01:
I just don't know of any authority

[00:05:24] Speaker 01:
that buttresses your point that a failure to charge in a separate jurisdiction, in this case Alabama, is somehow, you've got to do that, or you're making a clear error.

[00:05:37] Speaker 01:
So we get back again to abuse of discretion.

[00:05:40] Speaker 01:
As my colleague pointed out, the judge said, look at this, basically, I think maybe there's greater confusion here.

[00:05:48] Speaker 01:
We're not going to hear it this time.

[00:05:50] Speaker 01:
That's pure abuse of discretion, is it not?

[00:05:54] Speaker 03:
I did not find any cases that were analogous to this case.

[00:05:57] Speaker 03:
The case law is generally what the defendant is attempting to do when they admit this other evidence is usually much more

[00:06:06] Speaker 03:
It's much more questionable.

[00:06:09] Speaker 03:
So it's the defendant trying to say, well, I had a plea offer and a case, therefore the government thought I was innocent.

[00:06:16] Speaker 03:
In this case, what happened is the government opened the door by using the Alabama State investigators, putting them on the stand, having them testify about being the arresting officers of Mr. Thompson.

[00:06:28] Speaker 01:
We understand that.

[00:06:29] Speaker 01:
I guess, again, the point is you don't have a case that says, in facts like this, that

[00:06:34] Speaker 01:
the court has to permit that testimony in.

[00:06:38] Speaker 01:
So given that fact, then we get down to whether what happened was an abuse of discretion.

[00:06:43] Speaker 01:
And I can't think of no case that says that's the case.

[00:06:47] Speaker 01:
That's what trial judges are for.

[00:06:49] Speaker 01:
They make value judgments.

[00:06:50] Speaker 01:
And in this case, the district judge made a judgment clearly within the abuse of discretion standard to my way of thinking, unless you've got a case that says to the contrary.

[00:06:59] Speaker 03:
I do not have a case.

[00:07:00] Speaker 03:
I only have the fact that

[00:07:02] Speaker 03:
The motion was brought pretrial.

[00:07:04] Speaker 03:
It was then renewed twice because the judge initially denied it mid-trial.

[00:07:11] Speaker 03:
More witnesses then took the stand and testified about the local investigation.

[00:07:15] Speaker 03:
Very specific things.

[00:07:16] Speaker 03:
There was no control.

[00:07:17] Speaker 03:
This wasn't a control of testimony.

[00:07:19] Speaker 01:
I'm only speaking for myself, but from my perspective, it might be better to move on because I don't think this is a winner for you.

[00:07:26] Speaker 03:
The only other thing I'd point out with regard to this is that there were also the 12,000 pages of

[00:07:31] Speaker 03:
communications that were submitted to the jury.

[00:07:34] Speaker 03:
And so that was another reason to allow the fact in that there were no charges brought, because those talked about other bad acts, other potential charges, and they had to issue a limiting instruction, which I believe was insufficient to control that.

[00:07:49] Speaker 02:
But Counsel, as the district court pointed out, decisions whether or not to charge are made for a variety of reasons, some of which have no connection to the strength of the case.

[00:08:01] Speaker 02:
So that's a classic discretionary decision, isn't it, for the district court to say that perhaps the charges were not brought for a reason that has nothing to do with the strength of the prosecution's case?

[00:08:17] Speaker 03:
Yes, Judge, I think that is correct, except that in this case, again, in my reading of these other cases, it's different because this is Arizona wholesale utilizing the Alabama investigation, their officers.

[00:08:31] Speaker 03:
They're putting witnesses on the stand that then testify about other collateral witnesses or officers that did things that aren't even in evidence.

[00:08:38] Speaker 03:
The jury is hearing all of this.

[00:08:40] Speaker 03:
They're seeing the 404B evidence.

[00:08:41] Speaker 03:
They're hearing about bad acts that could be potential crimes.

[00:08:44] Speaker 03:
And they're being told, don't worry about that.

[00:08:46] Speaker 03:
That's the classic instruction.

[00:08:48] Speaker 03:
And we presume that they follow them.

[00:08:50] Speaker 03:
In this particular case, I think this judge had a duty to then step in.

[00:08:54] Speaker 03:
All right, counsel, as my colleague mentioned, you might want to move on to the other issues.

[00:08:58] Speaker 03:
I think the next issue would be the venue argument.

[00:09:01] Speaker 03:
In this case, venue was contested from the beginning.

[00:09:06] Speaker 03:
We have the issue of Mr. Thompson seeking to file a pro se brief on what was labeled as jurisdiction.

[00:09:15] Speaker 03:
It was as a layperson, and the court characterized it as a jurisdictional motion.

[00:09:22] Speaker 03:
The court granted him leave.

[00:09:24] Speaker 03:
And once he grants him leave to file that motion, Wolfie Strankman, it instructs that we are to liberally construe the judge and the court is to liberally construe those pleadings.

[00:09:35] Speaker 03:
Mr. Thompson filed a substantive brief.

[00:09:37] Speaker 03:
It was characterized as jurisdiction.

[00:09:40] Speaker 03:
However, it became very clear and we cited in the briefs.

[00:09:43] Speaker 03:
He directly attacked venue and that was from the beginning.

[00:09:46] Speaker 03:
He then made it clear at the FTMC before the first trial through his counsel.

[00:09:51] Speaker 03:
that he specifically wanted the 3237A issues preserved for appeal.

[00:09:56] Speaker 03:
He wanted them filed on his bill, and he wanted them to track, and he wanted the record made.

[00:10:01] Speaker 03:
His counsel then filed his own motion to dismiss, wherein there were also venue provisions.

[00:10:06] Speaker 03:
The court denied that, but it still laid the framework for the court's later duty in establishing why it's plain error now for him to not have instructed.

[00:10:17] Speaker 03:
During openings and closings, it is abundantly clear

[00:10:21] Speaker 03:
that in part because of the nature of the charges, but also because directly of the arguments or the direct arguments made by council that they were attacking the intent in Arizona.

[00:10:31] Speaker 03:
and that the core of the acts occurred in Alabama and that the motivating purpose in the defense mind was not established in Arizona and that's especially the case for victim JD-1 because the evidence, the quantum and quality of that evidence was much less than it was arguably for the victim JD-2.

[00:10:51] Speaker 01:
Let me ask you this.

[00:10:52] Speaker 01:
What is your best argument that the venue issue has any

[00:11:00] Speaker 01:
teeth to it at all.

[00:11:02] Speaker 01:
Usually it's just a male brainer.

[00:11:04] Speaker 01:
Why is that a problem in this case?

[00:11:06] Speaker 03:
I think that in this case we're talking about he's entitled under Article III and Sixth Amendment and Rule 18 to a jury in the proper locusts where the crime was committed.

[00:11:19] Speaker 03:
The crime wasn't committed in Arizona.

[00:11:21] Speaker 03:
He was entitled to a jury in Alabama where the age of consent is 16.

[00:11:25] Speaker 03:
The age of consent in Arizona is 18.

[00:11:28] Speaker 03:
He would have had a materially different jury with a different perspective on the charges filed here.

[00:11:34] Speaker 03:
And in this case, eight- Go ahead, Judge.

[00:11:36] Speaker 01:
But with respect, counsel, are you disputing the fact that much of the initial communication from your client occurred in Arizona?

[00:11:46] Speaker 03:
No, Judge.

[00:11:46] Speaker 03:
There was a substantial amount of communication with victim JD2.

[00:11:52] Speaker 03:
in a dispute about whether or not there were communications with JD-1, they were not available at trial.

[00:11:57] Speaker 03:
The jury would not hear evidence of that.

[00:11:59] Speaker 01:
There were four... It seems to me your argument is, yeah, there's venue in Arizona, but there's also venue in Alabama.

[00:12:06] Speaker 01:
Isn't that really what you're saying?

[00:12:09] Speaker 03:
That is not my intention.

[00:12:10] Speaker 03:
My intention is that there is venue in Alabama only.

[00:12:13] Speaker 03:
There is not sufficient evidence regarding intent, motivating purpose, and reasonable belief of age, which should all be required, and we're all contested issues at trial.

[00:12:21] Speaker 02:
But wasn't this a continuing offense counsel, which then the venue would be proper in any jurisdiction within which the offense occurred?

[00:12:32] Speaker 03:
It is, provided there was sufficient evidence of his intent in Arizona, and we are submitting that there was not.

[00:12:38] Speaker 02:
All right.

[00:12:39] Speaker 02:
Do you want to say there may be a time for rebuttal?

[00:12:42] Speaker 03:
I would judge, thank you.

[00:12:42] Speaker 03:
All right, thank you.

[00:12:43] Speaker 03:
Your Honor, sorry, thank you.

[00:12:59] Speaker 00:
Good morning, your honors.

[00:13:00] Speaker 00:
May it please the court?

[00:13:01] Speaker 00:
Atlanta Kennedy appearing for the United States.

[00:13:05] Speaker 00:
Kyle Thompson was just out of state prison for a attempted sexual exploitation of a minor charge.

[00:13:12] Speaker 00:
He was a registered sex offender when he began communicating with two 15-year-old girls on Facebook.

[00:13:19] Speaker 00:
He then drove from Arizona to Alabama in the hopes of having sex with both of them at the same time.

[00:13:26] Speaker 02:
So, counsel, we are aware of the facts.

[00:13:28] Speaker 02:
Could you please address the issues that were raised by opposing counsel, the evidentiary issue, and then the venue issue?

[00:13:36] Speaker 00:
Yes, Your Honor.

[00:13:37] Speaker 00:
First, the standard of review for the motion and lemonade question is abuse of discretion.

[00:13:43] Speaker 00:
That is well settled by this court, and it's discussed in the Rambo case cited in the government's brief.

[00:13:50] Speaker 00:
The difference, my co-counsel, or, excuse me, opposing counsel, highlighted what he believes to be a number of differences between the first and second trial that make this motion and Lemonade more important to the verdict.

[00:14:07] Speaker 00:
And there's a number of problems with that.

[00:14:10] Speaker 00:
First, there is no evidence that discussion about the absence of state or federal charges in Alabama was ever

[00:14:20] Speaker 00:
entered into evidence during the first trial.

[00:14:23] Speaker 00:
There were some statements by defense counsel, one in a question to a witness, and one during closing argument.

[00:14:30] Speaker 00:
But there was no actual testimony about state or federal charges in Alabama.

[00:14:35] Speaker 00:
The jury did hang, and it was 11 to 1 in favor of conviction.

[00:14:42] Speaker 00:
And that site is 2SER 353.

[00:14:46] Speaker 00:
And in the post-trial discussion with the jury, the jurors talked about how they were hung up on what the primary purpose of the travel was, what motivated Thompson to go.

[00:14:57] Speaker 01:
Council, because of the limited time, let me just ask you this.

[00:15:02] Speaker 01:
Mr. Thompson's counsel refers to our bear and fuke's decisions as support for his argument that he was entitled to a suespante venue instruction and that it was plain error not to give one.

[00:15:14] Speaker 01:
What's the government's response to that?

[00:15:17] Speaker 00:
A couple of things, Your Honor.

[00:15:18] Speaker 00:
I don't believe that he was entitled to a suesponte venue instruction here.

[00:15:23] Speaker 00:
The Fuchs case really is not on point for this particular issue.

[00:15:29] Speaker 00:
That was a conspiracy case where the most compelling overt acts in that case occurred outside of the statute of limitations.

[00:15:38] Speaker 00:
And the jury was not suesponte.

[00:15:42] Speaker 00:
instructed on the statute of limitations issue.

[00:15:44] Speaker 00:
Here, the venue instruction was not requested, it was not given, but the jury was required to find beyond a reasonable doubt that Thompson traveled from Arizona to Alabama to engage in illicit sexual conduct with these girls.

[00:16:00] Speaker 01:
What about the Behr case?

[00:16:02] Speaker 00:
The Behr case, your honor.

[00:16:03] Speaker 00:
So he, opposing counsel, cites that for the proposition that a,

[00:16:11] Speaker 00:
District Court is required to Sue Esponte instruct the jury on a specific defense, regardless of if it's requested.

[00:16:19] Speaker 00:
Baer, in that case, presented and relied on a public authority defense.

[00:16:24] Speaker 00:
He testified about it during trial, and it was extensively discussed during closing argument in that case.

[00:16:32] Speaker 00:
Here, there was no testimony about the venue issue specifically.

[00:16:38] Speaker 00:
There was no focus on it in closing at all during the second trial.

[00:16:44] Speaker 01:
And so in this case, Your Honor, that really is not applicable to- So from the government's perspective, Fuqua and Bayer are easily distinguishable.

[00:16:53] Speaker 00:
That's correct, Your Honor.

[00:16:55] Speaker 00:
And finally, I would just like to point out that while Thompson focuses repeatedly on the sexual acts that occurred in Alabama, that is not the heart of these charges.

[00:17:06] Speaker 00:
The heart of these charges were his intent in crossing state lines from Arizona to Alabama.

[00:17:13] Speaker 00:
And the Lukashov case is on point for that issue.

[00:17:17] Speaker 00:
And it holds that, it partly holds that mere crossing of a state line is sufficient to establish venue in any case where the offense involves crossing a state line.

[00:17:33] Speaker 00:
And so here we have not just the interstate travel, but we also have the intent and the crossing of the state line that occurred in Arizona.

[00:17:44] Speaker 00:
And so under Lukashov, that is sufficient.

[00:17:47] Speaker 00:
And unless the panel has any other questions about the remaining issues, the government would submit.

[00:17:51] Speaker 02:
It appears not.

[00:17:52] Speaker 00:
Thank you.

[00:17:53] Speaker 02:
Thank you, counsel.

[00:17:54] Speaker 02:
Rebuttal?

[00:17:56] Speaker 03:
Just briefly, Your Honor.

[00:18:00] Speaker 03:
We do submit that the court had a duty to sue Espante to issue the venue instruction.

[00:18:04] Speaker 03:
And we do think that Baer and the Fuchs case, if I'm pronouncing it properly, do hold weight.

[00:18:11] Speaker 03:
They are each dealing with different defense theories.

[00:18:13] Speaker 03:
But in this particular case, it was very clear that

[00:18:17] Speaker 03:
the defense from nearly the outset of the very first, before the first trial, venue was a predominant issue.

[00:18:25] Speaker 03:
The court ultimately plainly erred in not doing that.

[00:18:28] Speaker 03:
I think the error is plain.

[00:18:30] Speaker 03:
I think it affects substantial rights.

[00:18:32] Speaker 03:
And I think we get to the fourth prong because of the fact that he would have an entirely different jury.

[00:18:37] Speaker 03:
And again, I think that the fact that

[00:18:39] Speaker 03:
just the fact that Alabama has a different age of consent and we're talking about a reasonable belief and knowledge as to age which was heavily contested in both trials and these victims were one they had to amend the indictment because the original indictment was

[00:18:55] Speaker 03:
the birthday was a certain date, and they amended the indictment to get away from that by one day, because we're talking about a matter of hours as to victim JD.

[00:19:04] Speaker 01:
What's the government's response to, I mean, what's your response to the government's comment that the grave amount of these charges had to do with crossing interstate lines had far less to do with the actual sexual activities that occurred in Alabama?

[00:19:19] Speaker 03:
Well, I think that the Lukashov case

[00:19:21] Speaker 03:
involved, which they're relying on, involved actually a different set of facts as well because it involved continuous sexual abuse of a child while they were traveling across state lines.

[00:19:32] Speaker 03:
In this case, they're talking about purely the mindset.

[00:19:35] Speaker 03:
There was a lot of argument throughout this case where they don't, you know, Judge, we don't even need to have, we're not worried about the sex that occurred.

[00:19:42] Speaker 03:
Sure, we're gonna present the fact that sexual intercourse took place because we think it's relevant, but those facts were, in their minds, not even necessary.

[00:19:50] Speaker 03:
We're talking purely about

[00:19:51] Speaker 03:
his mental state at the time that he crosses that border in Arizona and the crux of the argument from the start for them and for us now was that that intent was insufficient at the time he left Arizona and especially- Even in view of the correspondence, in view of the correspondence regarding the intent to engage in sexual activities, you don't think that was sufficient evidence of intent.

[00:20:15] Speaker 03:
the the correspondence was in some points direct in other points it was a defense theory where both parties and even to the testimony at trial

[00:20:25] Speaker 03:
Their victim JD2, who was also almost 16, was falling in love with this individual and he was falling in love with her and he suffered from a condition which there was testimony about that rendered him a much younger mental state.

[00:20:38] Speaker 03:
And so there was a naivety there that I think played a role here and at other times they talked about the fact that he would wait to do that.

[00:20:46] Speaker 03:
And so we were in a flux of what the actual intent was as to JD2.

[00:20:52] Speaker 03:
As to JD1, we weren't.

[00:20:54] Speaker 03:
There was no communication in the record.

[00:20:56] Speaker 03:
It was four texts that started one season in Alabama.

[00:20:59] Speaker 03:
And the court knows that you can't sever those apart now.

[00:21:03] Speaker 03:
If venue is improper as to JD-1, then we still need the relief sought.

[00:21:07] Speaker 02:
All right.

[00:21:07] Speaker 02:
Thank you, counsel.

[00:21:08] Speaker 02:
Thank you to both counsel.

[00:21:10] Speaker 02:
The case just argued is submitted for a decision by the court.