[00:00:00] Speaker 03:
Our next case this morning is number 2110230, Blackshire versus the United States.

[00:00:23] Speaker 03:
Ms.

[00:00:23] Speaker 03:
Moretti.

[00:00:27] Speaker 01:
Good morning, and may it please the court, Michelle Moretti for Appellant Lawrence Blackshire.

[00:00:32] Speaker 01:
I would like to reserve two minutes with the court's assistance.

[00:00:38] Speaker 01:
And I would like to spend my brief time today primarily addressing the first two issues presented in the brief, unless the court has additional questions, which of course I'd be happy to answer.

[00:00:52] Speaker 01:
Mr. Blackshire was ultimately sentenced to 96 months for an assault, which was aggravated, considered aggravated, based on a missing victim's testimony, or not testimony, but her statements that were permitted through the forfeiture by wrongdoing doctrine.

[00:01:17] Speaker 01:
Mr. Blackshire's rights to confront his witness was

[00:01:23] Speaker 01:
were violated and the evidence was not harmless to his case.

[00:01:30] Speaker 02:
Why was the district judge, and I think we apply a preponderance of the evidence standard, why was the district judge incorrect in finding that Mr.

[00:01:42] Speaker 02:
Blackshire had intentionally procured the absence of the victim from trial.

[00:01:48] Speaker 01:
Well, for such an extreme remedy, forfeiture by wrongdoing is an exception to the confrontation doctrine.

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Intent, causation, and actual wrongful conduct must be shown.

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In this case, the assault occurred in 2018.

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The interviews were conducted immediately after the assault.

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And then for an entire year after, the victim was never contacted until the federal indictment issued in August of 2019.

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And only at that point,

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was did Detective Owens attempt to contact the victim, although it's statistically foreseeable that domestic violence victims will never qualify.

[00:02:45] Speaker 00:
I don't understand the relevance of any of that.

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I mean, the question is the wrongdoing by the defendant.

[00:02:53] Speaker 00:
And as I understand your brief, your argument is there certainly was intent.

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We know he didn't want her to testify.

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But the question is,

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Was there any wrongdoing?

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Did he do it?

[00:03:05] Speaker 00:
Well, I guess question one is, if what he did was make sure that she was either persuade him herself or have other people persuade her, which appears happened, not to testify, I gather your position is that that does not support forfeiture by wrongdoing because there wasn't wrongdoing.

[00:03:30] Speaker 00:
Your Honor.

[00:03:31] Speaker 01:
I would respectfully suggest that

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Mr. Blackshire, I agree that he certainly, like witnesses, defendants do not want witnesses to testify him.

[00:03:43] Speaker 01:
That's a run-of-the-mill scenario.

[00:03:45] Speaker 02:
But he did more than the desire here.

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We have these tape recordings where he said, we already discussed this about her not showing up.

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Don't worry.

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There'll be no testimony here.

[00:03:54] Speaker 02:
So let's assume that's enough for the judge to conclude that he was involved in her absence and help procure it.

[00:04:03] Speaker 02:
I think what Judge Berzon's asking maybe, but something I was trying to ask, so she was trying, is that sufficient wrongdoing to invoke the forfeiture doctrine, or do you need something more?

[00:04:18] Speaker 02:
Under the circumstances, that would not be sufficient wrongdoing.

[00:04:20] Speaker 01:
Tell me what case you would like.

[00:04:22] Speaker 01:
First, it was, what case?

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I wonder why you're hedging.

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There's an answer.

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If somebody calls up someone and says, you know,

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You really don't have to testify, and I really don't want you to testify.

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Please don't testify.

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And suppose he does it five times.

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We don't know that he did.

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But is that sufficient for forfeiture by wrongdoing?

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If that is the extent that the defendant is badgering the potential witness, that could rise to the level of wrongful persuasion.

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In this case, somewhere before his initial trial or arrest on the tribal charges, it appears that he had some sort of conversation with the victim and others that may have been involved.

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And they simply discussed making peace.

[00:05:13] Speaker 01:
I made peace with these people.

[00:05:15] Speaker 02:
OK, so let's assume that's all true.

[00:05:16] Speaker 02:
Yes.

[00:05:17] Speaker 02:
I'm still interested in directly addressing Judge Berzon's question.

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Let's assume that what Mr. Blackshire did was call up the victim and say, let's let bygones be bygones when they come to look for you to testify for trial.

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I want you not to be available.

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There's plenty of places on the reservation where they won't find you.

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Don't volunteer and don't be found.

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And I think the record probably supports a reasonable inference that that's the case.

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The question is, I know you can fight me on the facts, but don't for a moment.

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Is that sufficient wrongdoing?

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Or do you need to threaten her or cause more?

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Can you get together with a victim and say, let's agree together that you'll be nowhere around when they want to try me?

[00:06:07] Speaker 00:
I thought your argument was really that that's not enough.

[00:06:09] Speaker 00:
But you now seem to be hedging.

[00:06:11] Speaker 01:
No, that in itself is not enough.

[00:06:13] Speaker 01:
And I'm a little bit thrown because I don't

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see that that okay.

[00:06:17] Speaker 02:
Well, let's assume I asked you to assume those facts.

[00:06:20] Speaker 02:
I'm like, but I'm having difficulty with your answer.

[00:06:23] Speaker 02:
That's why I want.

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That's why I want to explore what case you think supports that.

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In other words, can you really say you have a victim to a crime?

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What if he, what if you gave her some money?

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He never threatened her and said, go, go to

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a country without an extradition treaty so they can't get your testimony.

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Would you say then he's still entitled to have her confront him at trial?

[00:06:45] Speaker 01:
That conduct would rise to the level of wrongful conduct because it implies bribery.

[00:06:52] Speaker 01:
And the case law and the rules

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articulate bribery, intimidation, coercion, undue pressure.

[00:07:01] Speaker 02:
Well, but I'm asking because as I read the case law, it seems to suggest that if you were trying to procure somebody's absence from trial because her presence at trial would hurt you, that's wrongful conduct.

[00:07:16] Speaker 02:
And I'm trying to figure out what case you think says I'm wrong on that.

[00:07:22] Speaker 01:
I would point to Carlson versus attorney general where the court made a thorough analysis and distinguished between some active conduct where the defendant was meaningfully engaged in conduct to keep the witness from testifying.

[00:07:44] Speaker 02:
I was asking you to assume that she was meaningfully engaged.

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And I thought what your argument was from reading your brief is, yeah, maybe there's evidence he was meaningfully engaged.

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But that's not enough.

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You need more.

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You need a criminal act like bribery.

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And the advisory committee's notes say you don't.

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The Supreme Court say all you need is conduct designed to prevent a witness from testifying.

[00:08:11] Speaker 02:
So I'm trying to figure out what case you rely on for the notion that, no, no, you need something more than just conduct.

[00:08:18] Speaker 02:
designed to keep the witness away.

[00:08:20] Speaker 01:
Well, the cases that I've cited in the briefs talk and give examples of the type of conduct that has been held to constitute conduct sufficient for for forfeiture, which have always included detailed recitations of conduct which is contemporaneous with the

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the event, which is conduct that has been persistent at badgering.

[00:08:51] Speaker 03:
We're reviewing the district court's finding of a preponderance for clearer, are we not?

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Yes, yes, correct.

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And what we're looking for is to meet these standards as a finding that the defendant had the requisite intent to dissuade the witness from testifying.

[00:09:10] Speaker 03:
That's the wrongful intent, isn't it?

[00:09:13] Speaker 01:
It's not wrongful in and of itself.

[00:09:16] Speaker 01:
What isn't wrongful?

[00:09:18] Speaker 01:
The Johnson case talks about that the conduct itself has to be wrongful in addition from.

[00:09:25] Speaker 00:
As I understand it, it's not just the intent that has to be wrongful, it's the action taken to forward that.

[00:09:32] Speaker 01:
The actual?

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There's something more.

[00:09:35] Speaker 00:
There's something about the action that has to be done.

[00:09:37] Speaker 01:
Yes, the action because from Giles on clarified that the forfeiture doctrine is designed to prevent a witness from being intimidated or the defendant from bribing, murdering, extorting.

[00:09:52] Speaker 02:
You have Carlson.

[00:09:54] Speaker 02:
You have Carlson in which somebody says to the children,

[00:09:58] Speaker 02:
hide out and don't let anybody find your mother.

[00:10:01] Speaker 02:
So what's the more there?

[00:10:03] Speaker 01:
Well, that is the outer limits of the doctrine, as I see it.

[00:10:08] Speaker 01:
So why don't you fall inside of it?

[00:10:10] Speaker 01:
In that case, the proceedings were already underway.

[00:10:14] Speaker 01:
The victim, not the victim, but the witnesses had already been subpoenaed, unlike this case.

[00:10:20] Speaker 00:
But isn't the point in Carlson that you were killing with a child?

[00:10:25] Speaker 00:
and that he had gone away with the child.

[00:10:28] Speaker 00:
Presumably, if he was keeping the child, the child can just show up by themselves.

[00:10:36] Speaker 00:
He was somewhere with that child.

[00:10:38] Speaker 00:
And with the mother as well.

[00:10:39] Speaker 01:
And with the mother.

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And yes, and the court looked carefully at the time frame, which occurred on the second day of the trial, I believe.

[00:10:51] Speaker 01:
In contrast, in this case, the victim was never located

[00:10:57] Speaker 01:
No, there is no evidence that she was ever actually contacted.

[00:11:02] Speaker 01:
The only illusion we have is the vague reference that Mr. Blackshear on December 23rd, 2019 was consulting his distraught girlfriend saying, oh, I already talked about them.

[00:11:17] Speaker 01:
Don't worry, I'm not going to get a life sentence.

[00:11:19] Speaker 02:
Well, there is a call where he essentially says, if you find her, tell her to stay away.

[00:11:26] Speaker 02:
Yes?

[00:11:28] Speaker 01:
There was a subsequent conversation on the 12th with the same woman and she flatly refused.

[00:11:40] Speaker 01:
And there were, the government presented no evidence that she was ever, that Ms.

[00:11:45] Speaker 01:
Wilson ever contacted a CS.

[00:11:48] Speaker 02:
So you're arguing that there's, that there was insufficient evidence from which the judge could find causation?

[00:11:55] Speaker 01:
I think that's the strongest argument that there is insufficient evidence of causation completely considering the timeline of the 16 months between the event and the trial.

[00:12:07] Speaker 01:
the complete absence of any contact by the victim or from the victim after August.

[00:12:15] Speaker 01:
We don't know that with regard to the defendant.

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He could have been in contact.

[00:12:20] Speaker 01:
Contact by the government.

[00:12:23] Speaker 01:
The government, I would point out that Detective Owens worked along with tribal and federal prosecutors and could have and should have foreseen that

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federal indictment could issue when these charges had been dismissed.

[00:12:41] Speaker 02:
That's on the unavailability problem, right?

[00:12:44] Speaker 02:
So you're arguing that there was insufficient evidence that she was unavailable?

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I mean, she was clearly unavailable.

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Correct?

[00:12:53] Speaker 02:
Well, but she was clearly unavailable despite the government.

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So you're arguing that the government has some burden to overcome?

[00:13:01] Speaker 02:
Let's assume that there's evidence here that your client intentionally procured her absence.

[00:13:06] Speaker 02:
Yes.

[00:13:07] Speaker 02:
You're arguing that the government didn't try hard enough to find her, and that's part of the forfeiture doctrine?

[00:13:12] Speaker 01:
It was too easy for the government to go through the motions.

[00:13:16] Speaker 01:
Yes, the government does have some burden.

[00:13:18] Speaker 00:
I thought the burden of that was that

[00:13:22] Speaker 00:
she could have not shown up because she didn't show up.

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In other words, we don't know where she was.

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She could have been in Timbuktu by then.

[00:13:36] Speaker 00:
We know that he said he made peace with her at some earlier time.

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So at some point he thought he'd persuaded her not to testify.

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But we also know that he wasn't very sure of it because he kept calling

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people to talk to her.

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And then we don't know whether anybody actually did talk to her at that point.

[00:13:55] Speaker 00:
So it could be that she was just gone.

[00:13:58] Speaker 01:
It appears to be that she was just gone because nobody appeared to be able to locate her.

[00:14:03] Speaker 01:
And the government failed to call the witnesses whom he spoke.

[00:14:08] Speaker 00:
Do you want to very briefly talk about the nurse?

[00:14:10] Speaker 00:
I'm sorry, Your Honor?

[00:14:11] Speaker 00:
You had another argument about the nurse evidence.

[00:14:14] Speaker 01:
Yes.

[00:14:15] Speaker 00:
We have about one minute to do it.

[00:14:17] Speaker 01:
Yes, yes, I see.

[00:14:24] Speaker 01:
The district court wrongly admitted the victim's statements to the forensic nurse, Nurse Rabel.

[00:14:31] Speaker 01:
In this case, the victim had been treated by the emergency room physician and the radiologist on the day she reported the incident.

[00:14:40] Speaker 03:
Ms.

[00:14:40] Speaker 03:
Moretti, just to cut to the quick of this point, if the defendant forfeited confrontation by wrongdoing,

[00:14:50] Speaker 03:
Doesn't that apply to all statements by the victim, regardless of to whom they were made or in what capacity?

[00:14:58] Speaker 01:
I don't believe that the government requested that that be the case.

[00:15:05] Speaker 03:
Is it correct?

[00:15:13] Speaker 01:
I believe no, because the statements were here offered for

[00:15:19] Speaker 01:
as an exception to the hearsay rule under 804B as meant to be reliable because they were supposedly in anticipation of medical treatment.

[00:15:32] Speaker 02:
And nurse Rabel testified that I was putting together a plan of treatment.

[00:15:38] Speaker 02:
Why isn't that enough for the judge to conclude that they fall within the hearsay exception?

[00:15:43] Speaker 01:
Well, the court needs to assess the entirety of circumstances.

[00:15:47] Speaker 02:
Well, let's assume that the judge did assess the entirety of the circumstances and concluded that they were offered for treatment.

[00:15:55] Speaker 02:
Are you saying that that's clear error?

[00:15:57] Speaker 01:
The statements that were elicited really had very little to do with treatment.

[00:16:05] Speaker 01:
So you're saying it's clear error?

[00:16:06] Speaker 01:
Yes.

[00:16:07] Speaker 02:
Even though the nurse said, my purpose in conducting this interview was to come up with a plan of treatment.

[00:16:15] Speaker 01:
Yes, because the question is what the victim understood her statements to be.

[00:16:20] Speaker 02:
And how do we know what the victim understood?

[00:16:22] Speaker 01:
She wasn't there.

[00:16:23] Speaker 01:
She signed a consent statement saying that these statements would be furnished to government authorities.

[00:16:30] Speaker 02:
We do have case law that says that's not enough to render this not a medical examination.

[00:16:36] Speaker 02:
So what the judge has on the one hand is the nurse saying,

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But on the other hand, nothing because the victim is not there.

[00:16:45] Speaker 02:
So isn't that enough for the judge to conclude that they're for purposes of treatment?

[00:16:49] Speaker 01:
But she was also interviewed after medical treatment was provided.

[00:16:54] Speaker 01:
She was interviewed at an outpost of the police department.

[00:16:58] Speaker 01:
The Scottsdale Advocacy Center is a place for all aspects of the police investigation to unfold.

[00:17:06] Speaker 01:
It's designed to

[00:17:10] Speaker 01:
facilitate the investigation.

[00:17:12] Speaker 01:
Officers, prosecutors, investigators are located in that very building.

[00:17:17] Speaker 01:
Nurse Rabel worked from a pre-designed form that was constructed to elicit incriminating evidence about past events.

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that would be foreseeably used at trial against Mr. Blackshire.

[00:17:32] Speaker 01:
She did not, in fact, perform any medical treatment.

[00:17:35] Speaker 01:
In fact, at one point, she tested.

[00:17:37] Speaker 01:
She wouldn't treat injuries unless it was something very minor.

[00:17:42] Speaker 03:
Thank you, Ms.

[00:17:44] Speaker 03:
Moretti.

[00:17:44] Speaker 03:
We'll give you two minutes for rebuttal.

[00:17:46] Speaker 03:
Thank you.

[00:17:54] Speaker 03:
Mr. Kosnets.

[00:17:56] Speaker 04:
Thank you.

[00:17:57] Speaker 04:
May it please the court.

[00:17:58] Speaker 04:
My name is Peter Kozinatz.

[00:18:01] Speaker 04:
I represent the United States.

[00:18:03] Speaker 04:
The court should affirm for two essential reasons.

[00:18:06] Speaker 04:
First, the evidence in the record did support the district court's factual finding that the defendant engaged in forfeiture by wrongdoing, reviewed under a clear error standard.

[00:18:18] Speaker 04:
Affirmance is warranted.

[00:18:20] Speaker 04:
And secondly, the evidence also shows that

[00:18:23] Speaker 04:
the statements that were made to the Honor Health nurse, Nurse Raubel, were statements that served a medical purpose that resulted in a plan of care and that addressed a very important issue for this victim, which was the after effects of strangulation.

[00:18:40] Speaker 04:
She was still in pain.

[00:18:43] Speaker 04:
She was still severely injured when she saw that nurse.

[00:18:45] Speaker 03:
What treatment did the nurse provide in her capacity?

[00:18:49] Speaker 04:
The nurse

[00:18:52] Speaker 04:
conducted a medical examination and then provided treatment in the form of these aftercare instructions regarding the after effects of strangulation.

[00:19:05] Speaker 04:
As the nurse testified, when you have symptoms in science consistent with strangulation, you are at danger for an emergent condition to

[00:19:17] Speaker 04:
come out at any time thereafter.

[00:19:20] Speaker 04:
And it's very important for the victim to be aware of this and to know that if they experience increased dizziness, headaches, you know, blurred vision, speech problems and so forth, that's an emergency and they need to go to the ER right away.

[00:19:35] Speaker 03:
The nurse also diagnosed the victim with domestic violence.

[00:19:39] Speaker 03:
Is that a medical condition that she was providing treatment for?

[00:19:43] Speaker 03:
I guess the concern here is that to pick up on Ms.

[00:19:46] Speaker 03:
Moretti's

[00:19:47] Speaker 03:
final argument is this looks awfully interrogatory, we might say.

[00:19:53] Speaker 04:
Well, there, so first of all, with respect to this confrontation clause issue, Your Honor is correct, if forfeiture by war on doing applies, that takes care of the confrontation clause issue.

[00:20:05] Speaker 00:
But also- Forfeiture by war on doing applies even to this, to the nurse testimony?

[00:20:12] Speaker 04:
Well, to the extent there's a confrontation clause issue there, it would, because that is the, um, the effect of forfeiture by wrongdoing is that everything comes in, even, even things that unless you do the for the wrongdoing.

[00:20:28] Speaker 04:
Right, Your Honor, by orchestrating the defendant's absence.

[00:20:32] Speaker 02:
We're talking about here the victim's statements to the nurse.

[00:20:38] Speaker 02:
The nurse actually showed up and testified about everything else.

[00:20:40] Speaker 04:
Right.

[00:20:41] Speaker 02:
So what you're saying is that the forfeiture doctrine would allow the victim's statements to the nurse to come in.

[00:20:47] Speaker 04:
Yes.

[00:20:48] Speaker 02:
The nurse's other statements were subject to confrontation.

[00:20:54] Speaker 00:
President, that provides that.

[00:20:57] Speaker 00:
That's confrontation clause.

[00:20:59] Speaker 00:
washes out that every statement by the victim is washed out if some of the victim statements are wrongfully precluded.

[00:21:13] Speaker 00:
This one wasn't wrongfully precluded.

[00:21:19] Speaker 00:
Why is it that there's forfeiture by wrongdoing with regard to the statement to the nurse?

[00:21:27] Speaker 04:
Oh, I think I see your honor's point.

[00:21:33] Speaker 04:
Right.

[00:21:33] Speaker 04:
He didn't keep her away from going to the nurse.

[00:21:35] Speaker 04:
That's certainly the case.

[00:21:37] Speaker 04:
Right.

[00:21:37] Speaker 04:
My point is only that to the extent there's a confrontation clause objection to admitting the nurse's testimony about what she was told by the victim, describing the assault, to the extent that's subjected to on a confrontation clause basis.

[00:21:53] Speaker 00:
The notion being because he kept the victim away.

[00:21:56] Speaker 04:
Right.

[00:21:57] Speaker 04:
Right.

[00:21:57] Speaker 04:
I'm trial.

[00:21:58] Speaker 04:
Yes.

[00:21:59] Speaker 04:
Right.

[00:21:59] Speaker 04:
Exactly.

[00:22:00] Speaker 04:
So, um, yeah, go ahead.

[00:22:03] Speaker 02:
Whether or not it covers both or doesn't cover both.

[00:22:06] Speaker 02:
I think so.

[00:22:08] Speaker 02:
The question for me in this case is I posit to you that there's probably sufficient evidence from which the judge could have concluded that Mr. Blackshire did something to persuade the victim not to show up.

[00:22:24] Speaker 02:
Is that enough to give rise to forfeiture?

[00:22:29] Speaker 04:
Yes, absolutely it is.

[00:22:33] Speaker 00:
So what does the wrongdoing part mean?

[00:22:36] Speaker 00:
I thought that there were cases that said just persuading somebody not to come.

[00:22:41] Speaker 00:
This is different, I think, than what applies to the obstruction of justice guideline, where persuading somebody not to show up seems to be enough.

[00:22:50] Speaker 00:
But with regard to the forfeiture by wrongdoing, which is obviously a much more onerous remedy, my understanding was that there was an additional element, which is he had to do something, not just talk to someone.

[00:23:06] Speaker 04:
Well, Your Honor, the courts have recognized that these elements are to be construed broadly to effectuate the purpose of the doctrine.

[00:23:14] Speaker 04:
And here what we have are repeated efforts by the defendant

[00:23:19] Speaker 04:
to keep this victim away.

[00:23:21] Speaker 04:
He's putting out this message in multiple ways.

[00:23:24] Speaker 04:
He's saying he's already done it.

[00:23:25] Speaker 00:
Well, we don't know that any of the later messages ever got there.

[00:23:29] Speaker 00:
And we know that he says that he made peace with her earlier on.

[00:23:32] Speaker 00:
But the later messages, we have no idea that they ever got there.

[00:23:35] Speaker 00:
So there you have a causation problem.

[00:23:38] Speaker 00:
So focusing on the earlier ones where he said, I made peace with her, his representation is essentially

[00:23:48] Speaker 00:
You know, we had a session in which we decided, as one of my colleagues said, let BICON speak.

[00:23:54] Speaker 00:
BICON, that seems to be what he's saying.

[00:23:57] Speaker 00:
Would that be a basis for forfeiture by wrongdoing?

[00:24:01] Speaker 04:
In the context of this case, it would be because I think you can't consider those statements, that conversation in a vacuum.

[00:24:09] Speaker 04:
I think the district court was well justified in looking at the circumstances as a whole.

[00:24:14] Speaker 04:
Here we know that this was not, there wasn't just the sort of friendly relationship between these two people.

[00:24:20] Speaker 04:
There was a long history of violence and threats that marked this relationship.

[00:24:26] Speaker 04:
And courts have recognized that

[00:24:29] Speaker 04:
whether you're applying the obstruction of justice enhancement or you're looking at issues of forfeiture by wrongdoing, you can look at the context of the party's relationship.

[00:24:37] Speaker 04:
I'm not arguing.

[00:24:37] Speaker 00:
Basically relying on the crime as being the implicit threat.

[00:24:44] Speaker 04:
Not the crime standing alone is not enough, but there is evidence in this record

[00:24:51] Speaker 04:
that there were prior incidents is of domestic violence, that there were threats that were made.

[00:24:57] Speaker 04:
She told, um, she made one of her statements that every time she wants to leave him, that's when he starts to hit me.

[00:25:04] Speaker 04:
And so we have this relationship of control and influence in the Montag case from the 10th circuit.

[00:25:11] Speaker 04:
The court also looked at this history of domestic violence to infer

[00:25:16] Speaker 04:
that there was wrongdoing in the form of control.

[00:25:19] Speaker 04:
Now, albeit in that case there was also a violation of a no contact order, but

[00:25:23] Speaker 04:
It was the wife who was violating the no contact order.

[00:25:26] Speaker 04:
She was coming to the husband.

[00:25:27] Speaker 04:
And in order to really reach the result of wrongfulness, the court said, we have to look at the history of domestic violence between the parties.

[00:25:34] Speaker 02:
Is there a requirement of wrongfulness other than keeping the witness away?

[00:25:40] Speaker 02:
I don't think so.

[00:25:40] Speaker 02:
I look at, I hate to rely on 1878 cases, but Reynolds is a case in which the defendant just refused to disclose his wife's whereabouts.

[00:25:53] Speaker 02:
so she could be subpoenaed.

[00:25:55] Speaker 02:
And the court said, you can't insist on her being there if you've voluntarily kept her away.

[00:26:02] Speaker 02:
So I'm wondering whether wrongdoing is a misnomer in this context.

[00:26:07] Speaker 02:
And it's enough just to show that you kept the witness away.

[00:26:12] Speaker 02:
Your active efforts kept the witness away.

[00:26:14] Speaker 02:
Now, whether or not this record establishes that is the next question I want to get to.

[00:26:19] Speaker 02:
But is that enough in your view?

[00:26:21] Speaker 04:
Yes, Your Honor.

[00:26:22] Speaker 02:
I think that's... So why do we call it wrongdoing?

[00:26:24] Speaker 02:
Is it just wrongdoing to keep witnesses away?

[00:26:27] Speaker 04:
There's a statement in the Giles case, 554 U.S.

[00:26:30] Speaker 04:
at 365, where Justice Scalia says the wrong that this doctrine prevents is the defendant benefiting from

[00:26:37] Speaker 04:
quote, conduct designed to prevent the witness from testifying.

[00:26:40] Speaker 04:
That's the wrongfulness.

[00:26:41] Speaker 02:
And that's what Reynolds sort of says, is you can't insist on your right to confront a witness if you're the one being responsible for her not being there.

[00:26:52] Speaker 04:
Exactly.

[00:26:53] Speaker 02:
So assume that's enough for a moment.

[00:26:55] Speaker 02:
It may not be.

[00:26:57] Speaker 02:
So let's go to the sufficiency of the evidence.

[00:27:01] Speaker 02:
What evidence establishes causation here?

[00:27:06] Speaker 04:
OK.

[00:27:07] Speaker 04:
And there's ample evidence of that here.

[00:27:12] Speaker 04:
We have, really, this first phone call where the defendant essentially makes a confession.

[00:27:17] Speaker 04:
He says, I didn't want her to come, essentially, and this is what I did.

[00:27:23] Speaker 04:
Government's not ever going to be able to find victims.

[00:27:25] Speaker 04:
I made peace with her.

[00:27:27] Speaker 00:
What do you mean, this is what I did?

[00:27:28] Speaker 00:
What did he say he did?

[00:27:30] Speaker 04:
Well, he says, I had already taken care of this.

[00:27:34] Speaker 04:
He says, I already

[00:27:36] Speaker 04:
made peace with everybody.

[00:27:37] Speaker 04:
He does say that.

[00:27:38] Speaker 04:
And then he says, we already discussed the whole effing not showing up to court thing.

[00:27:42] Speaker 04:
He's speaking in past tense.

[00:27:44] Speaker 04:
This is something he's already done.

[00:27:45] Speaker 04:
He's already persuaded, talked this victim into keeping away from being able to testify at his trial, unless there be any doubt.

[00:27:55] Speaker 00:
He tells his girlfriend to go tell her not to come.

[00:27:59] Speaker 00:
So he wasn't so sure.

[00:28:01] Speaker 00:
And then he tells me that he calls and talks to his friend and tells her,

[00:28:06] Speaker 00:
watch and tell the woman, so watch and tell the victim, so he doesn't seem quite convinced that he's actually done this.

[00:28:14] Speaker 04:
I would argue that he's taking a belt and suspenders approach.

[00:28:17] Speaker 04:
He thinks he's already talked her out of it, but as his trial date gets a lot closer, he does start to get a little nervous and he wants to make

[00:28:23] Speaker 04:
real sure that she's gotten the message.

[00:28:26] Speaker 04:
And if you look at the transcript of the third recording, the person who's responding to him, when he says you make sure she doesn't effing essentially show up to court, she says, I'm pretty sure she's already gone through this.

[00:28:45] Speaker 04:
Pretty sure she's been through something like this.

[00:28:47] Speaker 04:
This is at ER 131.

[00:28:48] Speaker 04:
Pretty sure she already, pretty sure she knows everything.

[00:28:51] Speaker 04:
In other words,

[00:28:52] Speaker 04:
pretty sure she's already gotten this message.

[00:28:55] Speaker 00:
I'm pretty sure she knows that they can't do anything if she doesn't come, right?

[00:28:59] Speaker 00:
He said, tell her that the government can't do anything if she doesn't come, and she says, I think she knows that, right?

[00:29:07] Speaker 04:
Well, he says, make sure she doesn't effin' and then cooperate, show up.

[00:29:14] Speaker 04:
Now, this isn't just a friendly conversation or a friendly message being sent out to a co-defendant.

[00:29:20] Speaker 00:
What case do you have that says that?

[00:29:22] Speaker 00:
Let's assume that that's all so, that he talked to her and told her not to come, and maybe it hooks up and she doesn't come.

[00:29:33] Speaker 00:
What case says that that is enough, that there's no other wrongdoing that's required, no threats, no even implicit threats or anything else?

[00:29:47] Speaker 00:
I understand you say that the background is sufficient, but let's leave that out for now.

[00:29:52] Speaker 00:
OK.

[00:29:52] Speaker 00:
OK.

[00:29:53] Speaker 00:
Is it sufficient simply to persuade somebody not to come?

[00:29:57] Speaker 00:
That's what we're trying to get you to.

[00:29:58] Speaker 04:
Yes.

[00:29:59] Speaker 04:
Yes, it is.

[00:29:59] Speaker 00:
Tell me a case that says that.

[00:30:01] Speaker 04:
Okay.

[00:30:03] Speaker 04:
The Dinsett case from the Second Circuit, the Johanson case from the Seventh Circuit, the Hallam case from the Supreme Court of Iowa.

[00:30:13] Speaker 04:
These are cases where the courts have recognized that persuasion and influence are things that really are enough to satisfy

[00:30:21] Speaker 04:
the requirement.

[00:30:22] Speaker 04:
If you are making a request, don't show up to court to somebody over whom you have a relationship of some sort of control or some sort of influence, that can be sufficient.

[00:30:34] Speaker 04:
We cited more of those cases in our answering brief as well.

[00:30:38] Speaker 04:
And I think when you combine that with the Giles, with the language from the Supreme Court in the Giles case, that the wrong are these efforts to keep the defendant away from court, you have enough wrongful conduct.

[00:30:49] Speaker 04:
It's not

[00:30:50] Speaker 04:
I would submit it's not a high burden.

[00:30:52] Speaker 04:
It's not a high standard.

[00:30:54] Speaker 04:
It just has to be something, and I think we have more than that something here.

[00:30:59] Speaker 04:
And lest there be any doubt, if you look at the transcript of that first call where the person he's talking to kind of chides him for being dumb for verbalizing all of this on what they likely know as a recorded line, his responses

[00:31:13] Speaker 04:
And pardon the language, fuck the courts.

[00:31:16] Speaker 04:
Essentially, I don't care if the judge hears about this, fuck them.

[00:31:19] Speaker 04:
And what that tells us is that he is doing this for the express purpose of frustrating the integrity of the fact-finding process of the court.

[00:31:29] Speaker 04:
And that is the exact reason why forfeiture by wrongdoing exists.

[00:31:33] Speaker 04:
This is the Supreme Court recognized in Davis versus Washington and Giles versus California.

[00:31:38] Speaker 04:
I mean, the record is absolutely clear that he is

[00:31:41] Speaker 04:
engaged in this campaign to keep his victim away from his domestic violence trial.

[00:31:48] Speaker 04:
And on preponderance of the evidence standard, particularly when reviewing a finding for clear error, I think that there was more than enough here for the judge to reach the conclusion that the court did here.

[00:32:03] Speaker 04:
And Reynolds teaches that that kind of factual finding is really something that is best left to the trial court judge.

[00:32:10] Speaker 04:
I realize I'm

[00:32:11] Speaker 04:
We have to run out of time.

[00:32:12] Speaker 04:
Do your honors have any questions about the nurse or anything else on forfeiture by wrongdoing?

[00:32:19] Speaker 00:
Well, to ask the nurse, if the nurse issue was standing alone, i.e.

[00:32:29] Speaker 00:
if we found that there was no forfeiture, doesn't the confrontation clause exception require that this be an emergency?

[00:32:38] Speaker 00:
The rule, but the confrontation rule.

[00:32:39] Speaker 04:
Right.

[00:32:40] Speaker 04:
I understand, your honor.

[00:32:42] Speaker 04:
I don't think so, Your Honor.

[00:32:43] Speaker 04:
I think the case law recognizes that an emergency can be a very relevant factor, but it's- Is there a Confrontation Clause exception for medical care?

[00:32:52] Speaker 00:
I thought the Confrontation Clause exception is for emergencies.

[00:32:56] Speaker 00:
I mean, there's certainly thousand testimonial.

[00:32:58] Speaker 00:
There was a whole list, and they asked all these questions, and so on.

[00:33:02] Speaker 00:
So what's the exception for?

[00:33:05] Speaker 04:
So I would look at Michigan versus Bryant and Ohio versus Clark, which

[00:33:13] Speaker 04:
More recent cases in this area that recognize that unless the primary purpose of the discussion is to create a proxy for in-court testimony, the confrontation clause just doesn't apply at all.

[00:33:25] Speaker 04:
In footnote nine of Bryant indicates that where the medical hearsay exception applies.

[00:33:30] Speaker 00:
The victim certainly seemed as if that was the primary purpose.

[00:33:33] Speaker 00:
I mean, she was told that they were going to use this for evidence and they went through a long list of everything that happened.

[00:33:37] Speaker 00:
And in terms of a medical exam, she did almost nothing.

[00:33:41] Speaker 00:
I mean, she looked at her body, but that was for the purpose of making a map for evidentiary reasons.

[00:33:48] Speaker 00:
And she didn't, apparently she didn't have her address.

[00:33:53] Speaker 00:
She didn't look at the test from the day before.

[00:33:58] Speaker 00:
She didn't do basically anything.

[00:34:01] Speaker 04:
Well, Your Honor, I would respectfully submit that the record shows there was at least

[00:34:06] Speaker 04:
a very clear medical purpose to this as well.

[00:34:09] Speaker 04:
I'm not saying there wasn't a dual purpose here, but there was a very clear medical purpose.

[00:34:13] Speaker 00:
But the Confrontation Clause purpose.

[00:34:15] Speaker 00:
That's why I'm trying to back out the federal rules of evidence.

[00:34:20] Speaker 00:
For the Confrontation Clause purposes, there's no medical exception as such.

[00:34:25] Speaker 04:
Well, I think, though, that Bryant and Clark teach that those hearsay rules are still relevant in this analysis.

[00:34:32] Speaker 04:
And if the hearsay exception does apply, that's a strong indicator that it's not a testimonial, that this whole process wasn't done for the primary purpose of creating a proxy for in-court testimony.

[00:34:42] Speaker 00:
The cases in which medical exams have been held to be non-testimonial and in which there was an emergency, there's no emergency here at all, right?

[00:34:50] Speaker 00:
She went to the doctor for the emergency, and she had all these tests, and this was the next day.

[00:34:55] Speaker 00:
And there was no emergency.

[00:34:57] Speaker 04:
Well, you know, I think it's true she was not in the emergency room, but she did have this condition related to strangulation that could at any moment erupt into an emergent condition, something that she wasn't aware of, something information and aftercare that she didn't get from that ER visit.

[00:35:20] Speaker 04:
keep in mind this visit occurred just 24 hours approximately after she called 911 and had been rushed to the emergency room.

[00:35:27] Speaker 04:
She was still very severely injured.

[00:35:29] Speaker 04:
She told nurse rabble, I'm still a little sore and she had all this evidence of swelling and contusions and so forth throughout her body.

[00:35:37] Speaker 04:
She was still in pain.

[00:35:39] Speaker 02:
She hadn't been in the emergency room the day before and this was the first examination.

[00:35:46] Speaker 02:
Would it be one confronting an ongoing emergency?

[00:35:53] Speaker 02:
Um, I think given you have to say yes, because if you say no, then your view is that your view, I take it is that this was an ongoing emergency because it was clearly an emergency.

[00:36:07] Speaker 02:
The day before she went to the emergency room and this is only 24 hours later and she's still suffering from the effects of the attack.

[00:36:14] Speaker 04:
She's still in distress.

[00:36:15] Speaker 04:
I mean, I don't think you need to call it an emergency in order for the, uh, confrontation clause to fall out here.

[00:36:23] Speaker 02:
I think all you have to show is that statement in Latu though.

[00:36:26] Speaker 02:
You think that's just describing the facts of the case and then the confrontation clause only requires the statements be made for medical care.

[00:36:37] Speaker 02:
Let's assume it's no emergency, okay?

[00:36:40] Speaker 02:
Let's assume there is no emergency.

[00:36:42] Speaker 02:
But she makes the statements for the purposes of receiving medical care.

[00:36:46] Speaker 02:
That may or may not be the facts of this case.

[00:36:50] Speaker 02:
So is it your view that the confrontation clause doesn't apply under those circumstances, even though there's no ongoing emergency?

[00:36:58] Speaker 04:
Tell me why.

[00:36:58] Speaker 04:
That is my view, because Brian and Clark indicate that unless the primary purpose of the exercise is to create this proxy for.

[00:37:07] Speaker 02:
Right.

[00:37:08] Speaker 02:
And let's just assume for a second, we're not looking at that, just looking at the question of whether an emergency is required.

[00:37:15] Speaker 04:
No, an emergency is not required.

[00:37:18] Speaker 04:
That is, it's a very relevant factor, but it is not necessarily a dispositive factor.

[00:37:23] Speaker 04:
And I think that's borne out by language in the Latow case.

[00:37:28] Speaker 04:
And in other cases as well.

[00:37:30] Speaker 04:
And I think the real inquiry is, was this for the primary purpose of replacing in court testimony?

[00:37:37] Speaker 04:
And I think here, because she was still in distress and because she did get bona fide medical help from this nurse rabble, who is an employee of Honor Health, that there was a clear and urgent, really, medical purpose to what happened in her examination room.

[00:37:57] Speaker 03:
Mr. Cosnetson, unless my colleagues have additional questions.

[00:38:01] Speaker 03:
Well, thank you.

[00:38:02] Speaker 03:
Okay.

[00:38:02] Speaker 03:
Thank you, Your Honors.

[00:38:07] Speaker 03:
Ms.

[00:38:07] Speaker 03:
Moretti.

[00:38:10] Speaker 01:
Your Honor, with regard to the last point, it was clear that the primary purpose of the Nurse Rabel visit was not for medical reasons.

[00:38:20] Speaker 01:
In fact, Nurse Rabel was a specialist in forensic nursing, of course.

[00:38:26] Speaker 01:
But she specifically wanted to, she testified she wanted to explain the legality

[00:38:33] Speaker 01:
of what's involved with strangulation to the victim.

[00:38:37] Speaker 02:
She also testified though that her primary purpose in doing the examination was to provide a recommendation for a course of care.

[00:38:46] Speaker 02:
So she's got inconsistent testimony.

[00:38:48] Speaker 02:
Why can't the judge buy part of it, not the other?

[00:38:51] Speaker 01:
It would be unreasonable because she did not exactly

[00:38:56] Speaker 01:
provide a treatment of care.

[00:38:58] Speaker 01:
Well, she did suggest how to follow up, what she should do next, right?

[00:39:02] Speaker 01:
Yes, she did as to a particular contingent occurrence, but it was Nurse Rabel herself that elicited

[00:39:14] Speaker 01:
evidence of strangulation, which the victim had not mentioned.

[00:39:19] Speaker 01:
She had mentioned simply she was grabbed from behind and dragged a short distance.

[00:39:24] Speaker 01:
There was no objective evidence or documentary evidence to corroborate that.

[00:39:30] Speaker 01:
But it really served to enhance the charges or the sentence to defendant by years.

[00:39:39] Speaker 02:
Well, she did test.

[00:39:41] Speaker 02:
I mean, if we allow the police statements in,

[00:39:45] Speaker 02:
There's plenty of evidence of strangulation there, isn't there?

[00:39:47] Speaker 01:
There's not, because not by the definition of strangulation, which requires that pressure be applied to impede circulation or if it was suffocation to smother the defendant.

[00:40:03] Speaker 01:
And there was simply not.

[00:40:05] Speaker 01:
She was just briefly pulled

[00:40:08] Speaker 01:
into or toward the trailer and then said she would be willing to get up.

[00:40:13] Speaker 02:
Okay, but now I want to get back to this just for a second.

[00:40:16] Speaker 02:
I know we're over time.

[00:40:19] Speaker 02:
Your client was acquitted of strangulation.

[00:40:22] Speaker 02:
Yes, he was acquitted.

[00:40:24] Speaker 02:
Okay, and so let's assume that, and you've got a separate argument about why the enhancement shouldn't be appropriate, but even assuming that she inappropriately

[00:40:36] Speaker 02:
obtained evidence of strangulation, that didn't prejudice your client at trial because he was acquitted of that charge, right?

[00:40:43] Speaker 02:
The judge enhanced the sentence.

[00:40:46] Speaker 01:
Put aside the enhancement for a moment.

[00:40:47] Speaker 01:
Yes.

[00:40:49] Speaker 01:
Well, no, it would prejudice the

[00:40:53] Speaker 01:
the defendant because it would serve to add to the cumulative evidence of- Well, the jury didn't believe it.

[00:41:00] Speaker 01:
Not specifically, but the jury heard details, so they heard that he dragged her, but they decided it wasn't strangulation.

[00:41:08] Speaker 01:
But the jury repeatedly heard endless renditions of what happened, and that automatically, well, presumably causes an emotional reaction, which totally evinces a need for the jury to punish the defendant.

[00:41:23] Speaker 01:
Well, if he didn't actually strangle her, he must have done something else.

[00:41:28] Speaker 01:
So we're going to find him guilty.

[00:41:29] Speaker 01:
But most likely here, as defendant ultimately allocated, he admitted committing an assault where he punched the victim.

[00:41:39] Speaker 01:
But as to the kidnapping, the unlawful restraint, and as to the enhanced injuries, substantial and serious bodily injury, that

[00:41:51] Speaker 01:
was not so clearly proven, particularly by the documentary evidence.

[00:41:58] Speaker 03:
If my colleagues have no further questions.

[00:42:01] Speaker 03:
Thank you Ms.

[00:42:01] Speaker 03:
Moretti.

[00:42:02] Speaker 01:
Thank you Your Honor.

[00:42:05] Speaker 03:
The case is submitted.