[00:00:11] Speaker 01:
Thank you, Judge Robinson, and good morning, Your Honors.

[00:00:13] Speaker 01:
Ryan Fraser of Beanard Katzman Littrell Williams on behalf of Appellants Dae Young Lee and 940 Hill LLC.

[00:00:22] Speaker 01:
I would like to reserve three minutes for rebuttal and remind the clock.

[00:00:27] Speaker 01:
All right.

[00:00:27] Speaker 01:
May it please the court.

[00:00:29] Speaker 01:
Restricting speech activity without meaningful scrutiny violates the Constitution.

[00:00:35] Speaker 01:
We're here because that's exactly what happened below.

[00:00:39] Speaker 01:
The district court restrained the appellants and their attorney's First Amendment speech rights without findings of fact, without a legal test, without any reasoning at all.

[00:00:52] Speaker 02:
Under Levine... And how did the court do that?

[00:00:54] Speaker 02:
How did the court restrict the speech without findings of fact in your view?

[00:00:59] Speaker 01:
The district court's words were, I'm not going to allow it for either side.

[00:01:04] Speaker 01:
Any other issues with respect to jury selection?

[00:01:06] Speaker 03:
Also, you talk about the social media.

[00:01:08] Speaker 01:
Yes, Your Honor.

[00:01:08] Speaker 01:
OK.

[00:01:09] Speaker 01:
Yes.

[00:01:09] Speaker 03:
The minute I thought we had the wrong case.

[00:01:11] Speaker 03:
All right, so we're talking about jury selection.

[00:01:16] Speaker 00:
But it was not objected to on those grounds.

[00:01:21] Speaker 00:
I mean, the district court really would have no notice that there could have been even a First Amendment issue.

[00:01:28] Speaker 01:
Of course, the defense did object to imposition of the ban, and the district court's hasty ruling precluded an opportunity to specify a First Amendment ground.

[00:01:39] Speaker 01:
So it's my position that the First Amendment error is preserved.

[00:01:44] Speaker 02:
What would have been the First Amendment ground that you would have articulated?

[00:01:50] Speaker 01:
There is a, so under Packingham, cyberspace and social media in particular are the most important place for the exchange of views under the First Amendment.

[00:02:01] Speaker 03:
What about, what authority have you got for jury selection in particular?

[00:02:04] Speaker 03:
It's a very special routine, as you know, and there's an awful lot of discussion about how courts go about doing that.

[00:02:13] Speaker 03:
So what support have you got for this argument that he was entitled to use social media?

[00:02:19] Speaker 01:
As this court stated it well and the Supreme Court has used the same phrase, trial participants do not shed their constitutional rights at the courthouse door.

[00:02:31] Speaker 03:
Does that mean you don't have any authority that speaks to jury selection?

[00:02:36] Speaker 01:
I do not have an authority that refers to internet access rights during jury selection.

[00:02:42] Speaker 03:
I'm not trying to give you a hard time, but I do need it to be specific because I do not want to miss anything here.

[00:02:47] Speaker 03:
So your strongest argument on the First Amendment point is what exactly?

[00:02:53] Speaker 01:
The defendants and their attorneys had a right to access the internet that could not be restricted without application of a meaningful form of scrutiny.

[00:03:02] Speaker 01:
Under Levine, that would be a test.

[00:03:06] Speaker 01:
It's a three-part test.

[00:03:07] Speaker 01:
It would be that the activity to be restricted had to pose a substantial threat to protected activity.

[00:03:15] Speaker 01:
The restriction would have to be narrowly drawn, and there would have to be no

[00:03:19] Speaker 01:
alternative that's no less restrictive alternative.

[00:03:22] Speaker 03:
There were pre-trial conferences proceedings, I think a pre-trial order, a pre-trial conference discussing how jury selection was going to happen.

[00:03:29] Speaker 03:
And my read of the record is that this was a surprise to the trial court judge on the morning of jury selection.

[00:03:34] Speaker 03:
Do I misread it?

[00:03:35] Speaker 01:
No, Your Honor.

[00:03:36] Speaker 01:
However, there was no duty on behalf of defense counsel to flag this issue.

[00:03:41] Speaker 03:
The government itself... It's quite a curveball, though.

[00:03:43] Speaker 03:
It's quite a curveball.

[00:03:44] Speaker 03:
And a trial court judge has a lot of things going on in the morning to start a jury trial.

[00:03:53] Speaker 01:
It's a curve ball that the government created by making the motion to impose this ban.

[00:03:58] Speaker 01:
Notably, in the Trump case, in the DC proceedings, the government filed a brief taking the position that it is counsel's duty, unless prohibited by a court order, to conduct social media research on jurors.

[00:04:12] Speaker 00:
But why wouldn't that make it less problematic under the freedom of speech rather than more problematic?

[00:04:18] Speaker 00:
It was an even-handed courtroom management issue where typically the courtroom and jury trials are treated differently.

[00:04:27] Speaker 00:
And again, the district court was never given notice that there was a free speech issue, even handily managing the courtroom.

[00:04:36] Speaker 00:
There's all sorts of courtroom management decisions that district court judges do that affects speech incidentally that we wouldn't give a second glance to under the First Amendment.

[00:04:50] Speaker 01:
the district court and so the court of course is raising a good point the district court can impose a restriction on social media uh... research in some cases my position is that if that's going to be done it has to be done by applying

[00:05:07] Speaker 01:
intermediate scrutiny, not strict scrutiny, because trial participants don't have the same First Amendment rights that the public does.

[00:05:14] Speaker 00:
Why wouldn't this be invited error?

[00:05:18] Speaker 00:
Or, I mean, you're saying it's not plain error, but it is a practice, apparently well known throughout the districts of this circuit, to reach agreements with respect to social media, as well as district courts elsewhere.

[00:05:34] Speaker 00:
But you didn't do that.

[00:05:37] Speaker 01:
no the the government wanted to ban social media research and the defense uh... objected and asserted its right to conduct that research so uh... there's certainly no error invited by the defense in this case the defense objected to imposition of the ban so your view of the record is that they're just the defense didn't raise this before the day of trial jury selection was discussed about how this was going to be conducted it wasn't raised

[00:06:06] Speaker 03:
Not that you said you weren't going to do it, you just didn't raise it.

[00:06:09] Speaker 03:
And then on the morning of trial, the government is the one that raised the motion.

[00:06:12] Speaker 01:
That's correct.

[00:06:15] Speaker 03:
I think the transcript suggests that the government was under the impression that the defense was planning to do this.

[00:06:20] Speaker 01:
Yes, and that's the reason that the government moved to impose the ban, but citing no facts specific to this case.

[00:06:28] Speaker 01:
And similarly, the district court didn't cite a single fact at all in support of imposing the ban.

[00:06:35] Speaker 01:
And that's the crux of the problem.

[00:06:37] Speaker 01:
I mean, First Amendment restrictions require some of the most careful reasoning by courts to impose them or to uphold them.

[00:06:44] Speaker 01:
And here, there's just no reasoning at all.

[00:06:46] Speaker 01:
Thank you.

[00:06:47] Speaker 03:
I'm wondering if you could turn to the, I'm interested in your hearsay objections regarding the recorded conversation.

[00:06:52] Speaker 01:
Yes, Your Honor.

[00:06:56] Speaker 01:
This was, so focusing first on excluded exhibit 118A.

[00:07:03] Speaker 01:
Mr. Lee's questions were asked in this surreptitiously recorded conversation with the government lead witness, cooperating witness,

[00:07:15] Speaker 01:
And the core error committed by the district court in excluding that evidence is its failure to focus on the evidence of what Mr. Lee intended when he asked those questions.

[00:07:28] Speaker 03:
But doesn't that all pivot on whether we read these as actual questions as opposed to assertions?

[00:07:37] Speaker 01:
Yes.

[00:07:39] Speaker 01:
But the issue there is not whether there is

[00:07:45] Speaker 01:
an unstated fact underlying the question, but what Mr. Lee intended to do when he uttered the question.

[00:07:54] Speaker 01:
If he intended to assert a fact, such as asking a rhetorical question,

[00:08:01] Speaker 01:
then that would be, that's a statement under the hearsay rule that could properly be excluded.

[00:08:06] Speaker 01:
But that is not what the evidence in this case shows that Mr. Lee was trying to do when he asked those questions.

[00:08:13] Speaker 03:
Can you tell me specifically, I've got the transcript right here, which parts of it were excluded that you think you're entitled to?

[00:08:20] Speaker 01:
So in exhibit 118A, who took the money?

[00:08:26] Speaker 01:
Did George take it all?

[00:08:28] Speaker 01:
How much was given to the union?

[00:08:31] Speaker 01:
Those are questions that Mr. Lee asks intending to elicit information from Justin Kim.

[00:08:38] Speaker 01:
Because they're inquisitive questions, not rhetorical questions, they're not statements in the first place and can't be excluded as hearsay.

[00:08:50] Speaker 01:
We pointed out in our briefing, and the government hasn't offered any competing interpretation, part of what shows the lack of assertive intent here is take into account a fact that the government highlighted in its closing, which is these were surreptitious recordings.

[00:09:08] Speaker 01:
Mr. Lee didn't know he was being recorded, which is part of what makes the evidence so important to the defense.

[00:09:16] Speaker 01:
But also, both parties to this conversation, that is Mr. Lee and Justin Kim, knew that as between them, only Kim knew what he'd actually done with this money.

[00:09:28] Speaker 01:
And so that's where I think the responses from Justin Kim are so telling.

[00:09:34] Speaker 01:
He doesn't say something like, oh, OK, I see your plan there and what you're trying to get at.

[00:09:44] Speaker 01:
you're going to say you don't know what happened to the money.

[00:09:46] Speaker 01:
Instead, he just answers the questions as earnest questions, because that's how he understood them.

[00:09:52] Speaker 01:
And that's very important for the jury to have understood that this same witness who's interpreting these recordings, which were the heart of the government's case, to be, in essence, a confession to the charges, is a guy who is responding to these inquisitive questions from Mr. Lee earnestly.

[00:10:11] Speaker 01:
indicating that even he understood, in fact, Mr. Lee didn't know what happened to his money.

[00:10:16] Speaker 01:
And that goes to the heart of the defense.

[00:10:19] Speaker 01:
So it's the government's burden to show the exclusion harmless.

[00:10:25] Speaker 01:
But in this case, I think the harm is very severe.

[00:10:28] Speaker 01:
And we would even be able to carry a burden of showing the harm, given the centrality of this evidence to the government's arguments.

[00:10:36] Speaker 00:
It goes to the heart of the defense, but it would be presented in a form that would preclude cross-examination of the statements.

[00:10:46] Speaker 01:
Well, I mean, insofar as Mr. Lee couldn't be compelled to take the stand.

[00:10:52] Speaker 01:
But there's no unfairness to the government there, because the government created this conversation between Justin Kim and Mr. Lee.

[00:11:02] Speaker 01:
And the government played extensive portions of the recording, and cherry picked from them, and had Justin Kim interpret them as a confession to bribery.

[00:11:15] Speaker 01:
You know, the defense is just looking for an opportunity here, even if it were hearsay.

[00:11:21] Speaker 01:
And that's another facet of the error of the exclusion as the rule of completeness.

[00:11:26] Speaker 01:
Even if it were hearsay, which it's not for the reasons argued, it's necessary context for the jury to understand the portions of the recordings that the government relied on so heavily.

[00:11:39] Speaker 03:
Is this reviewed for an abuse of discretion?

[00:11:42] Speaker 01:
Yes, it is reviewed for an abuse of discretion.

[00:11:45] Speaker 01:
But I think in an abuse of discretion framework, the initial step is to confirm that the court applied the correct legal rule.

[00:11:55] Speaker 01:
In here, the operative legal rule in the hearsay ruling is to look to whether the questions were intended assertively.

[00:12:03] Speaker 01:
That's in the advisory committee note to rule 801.

[00:12:06] Speaker 01:
And it's actually the government's burden to show assertive intent in order to exclude the questions, as you say.

[00:12:13] Speaker 03:
But even at that level, it seems to me there was pretty powerful evidence for the court to conclude that perhaps Mr. Lee did suspect that he was being recorded.

[00:12:23] Speaker 03:
A lot had happened as of the time of this conversation in the restaurant.

[00:12:30] Speaker 01:
I think that, you know, the portions of the recording that the government focused on, the government selected those portions because the government sees them as being strong support for the government's case.

[00:12:45] Speaker 03:
So it wasn't there, and forgive me for interrupting, but I was making a different point, and that is that I think your premise is that these were assertions as opposed to

[00:12:56] Speaker 03:
that there wasn't room to doubt the veracity of them as legitimate assertions or honest, legitimate questions.

[00:13:03] Speaker 03:
And it seems to me, given the chronology of where this conversation took place, the district court did have reason to doubt that.

[00:13:10] Speaker 03:
So I'm just putting that out there for you so you can tell me why you think I'm wrong.

[00:13:15] Speaker 01:
So my position is not that the issue is not veracity, but looking to Mr. Lee's intent when he poses these questions.

[00:13:26] Speaker 03:
Well, that's veracity.

[00:13:27] Speaker 03:
I beg to differ.

[00:13:28] Speaker 03:
What I'm saying, I'm not suggesting a credibility determination.

[00:13:33] Speaker 03:
I'm suggesting that the court had this transcript, and I'm responding to your statement, that these are assertions.

[00:13:38] Speaker 01:
Were there questions?

[00:13:40] Speaker 01:
I apologize, Your Honor.

[00:13:41] Speaker 01:
If I said that his questions were assertions, that's basically the opposite of what I meant.

[00:13:46] Speaker 01:
Maybe it's me.

[00:13:46] Speaker 03:
But I'm trying to get at the judge had a reason to think that these were not legitimate questions.

[00:13:52] Speaker 03:
I'm giving you a chance to respond to that.

[00:13:56] Speaker 03:
I think your premise is that Mr. Lee did not know he was being recorded and didn't have a reason to suspect that, sir.

[00:14:02] Speaker 03:
And what I'm suggesting is that, given the timeline here, it seems to me that Mr. Lee probably did have reason to suspect that.

[00:14:08] Speaker 01:
Well, the timeline is something that can be taken into account in the mix of factors, but for all of the other reasons that I've said.

[00:14:21] Speaker 01:
To say it in a blunt way, the government views Mr. Lee's comments on these recordings as extremely incriminating.

[00:14:30] Speaker 01:
And they're a centerpiece of the government's case for that reason.

[00:14:33] Speaker 01:
They're not the kinds of things that you would expect someone to say if they were being very careful with their words because they did suspect that they were being recorded.

[00:14:43] Speaker 01:
And so that's why it's so important for the jury to have received the full picture of what Mr. Lee was saying.

[00:14:51] Speaker 01:
And when he asks an apparent question, it's framed as a question, and then the context shows it's also intended inquisitively.

[00:14:59] Speaker 03:
OK.

[00:15:02] Speaker 03:
What about harmless error?

[00:15:05] Speaker 01:
Well, it's not harmless error because of the way the government used these recordings.

[00:15:12] Speaker 01:
And that goes from the opening statement through the closing arguments all the way through to the government's rebuttal in this case.

[00:15:19] Speaker 01:
The opening statement highlighted the recorded drop in the ocean remark from these recordings and the conversations with

[00:15:26] Speaker 01:
Justin Kim, the closing argument focused on the other exhibits taken from this recording without acknowledging the questions that Mr. Lee asked on exhibit 118A.

[00:15:38] Speaker 01:
And the government emphasized Mr. Lee's, quote, words.

[00:15:43] Speaker 01:
His own words, ladies and gentlemen, show that the defendants knew exactly where that money went, who it was intended for.

[00:15:52] Speaker 01:
End of the quote.

[00:15:54] Speaker 01:
Now, that is the exact point that these questions, if intended inquisitively, show that he didn't know.

[00:16:01] Speaker 01:
It goes to the heart of why the government argued Mr. Lee was guilty.

[00:16:06] Speaker 01:
And it continues into the rebuttal where the defense is faulted for leaving out context from these recordings.

[00:16:16] Speaker 03:
Were the photos that appear at SCR 248, 249, and 250 admitted into the record?

[00:16:23] Speaker 03:
These are the photos of the cash with the handwritten notes.

[00:16:25] Speaker 03:
Were those admitted?

[00:16:29] Speaker 01:
I believe they were, Your Honor.

[00:16:30] Speaker 03:
OK.

[00:16:33] Speaker 01:
In Cruz Garcia, the government's heavy reliance on a theory that would have been undermined by excluded evidence made the error not harmless.

[00:16:42] Speaker 01:
Same situation here.

[00:16:49] Speaker 01:
If I may return to a couple facets of the speech issue, I would like to explain in some detail why I believe that the error was preserved.

[00:17:04] Speaker 01:
And referring to the first sentence of Rule 51B, the defense satisfied.

[00:17:09] Speaker 01:
I see that I have three minutes left on the clock, so I'll just quickly touch on this.

[00:17:17] Speaker 01:
A party may preserve a claim of error by informing the court of the action the party wishes the court to take.

[00:17:23] Speaker 01:
And that is what the defense counsel did by explaining that the ban should not be imposed.

[00:17:29] Speaker 01:
But even, and similarly under Payaris Galan, waiver or forfeiture is argued at the level, excuse me, is analyzed at the level of claims, not arguments.

[00:17:41] Speaker 01:
The hasty ruling here precluded the opportunity to specify the First Amendment grounds, which recalls the fact pattern from Mancinas Flores, where a hasty ruling and then calling in the jury precluded an opportunity for the defense to specify all grounds why that plea should have been accepted.

[00:18:00] Speaker 01:
And I'll reserve the remainder of my time for rebuttal.

[00:18:03] Speaker 02:
All right, counsel.

[00:18:04] Speaker 02:
Thank you.

[00:18:04] Speaker 02:
We'll hear from the government.

[00:18:27] Speaker 04:
Thank you, Your Honours.

[00:18:28] Speaker 04:
May it please the court.

[00:18:30] Speaker 04:
Cassie Palmer on behalf of the United States.

[00:18:33] Speaker 04:
This court should affirm the convictions and David Lee's sentence in this case.

[00:18:38] Speaker 04:
I will start with the First Amendment issue.

[00:18:40] Speaker 04:
The court was not on notice of a First Amendment issue.

[00:18:43] Speaker 04:
Defense counsel in raising this issue with the court, and the government did raise it, and that's because soon before the jury was coming in, the court informed counsel that the jury was being assembled, and he was talking to counsel

[00:19:01] Speaker 04:
about various issues relating to voir dire.

[00:19:05] Speaker 04:
One member of the team asked the defense, are you going to be doing social media research?

[00:19:10] Speaker 04:
And as the court noted, there had been several hearings about the procedures, this was during COVID, and this had not been raised at any time.

[00:19:19] Speaker 04:
Defense counsel said that they did plan to do that, and so the government raised it with the court.

[00:19:24] Speaker 04:
And specifically what the government said is that we oppose it, but to the extent that the court is going to allow it,

[00:19:31] Speaker 04:
It should allow it for both sides.

[00:19:33] Speaker 04:
When you say this was happening during COVID, were people assembling in the courtroom?

[00:19:38] Speaker 04:
The jury assembly was down below, and the court said they would be bringing the jury up to court.

[00:19:42] Speaker 04:
But they were physically present.

[00:19:44] Speaker 04:
The jury was not physically present.

[00:19:45] Speaker 04:
They were in a jury assembly room downstairs.

[00:19:48] Speaker 03:
They were physically present.

[00:19:49] Speaker 03:
They were in the courthouse.

[00:19:49] Speaker 03:
They were not participating virtually.

[00:19:50] Speaker 03:
Oh, I'm sorry.

[00:19:51] Speaker 03:
Yes, OK.

[00:19:52] Speaker 03:
You answered my question.

[00:19:53] Speaker 03:
That's OK.

[00:19:53] Speaker 04:
They were physically present in the courthouse, not in the courtroom.

[00:19:57] Speaker 04:
Got it.

[00:19:58] Speaker 03:
Could we talk about the hearsay exceptions in the recorded conversations?

[00:20:02] Speaker 04:
Yes, Your Honor, I'm happy to do that.

[00:20:04] Speaker 03:
Your position is that these statements weren't really questions, that they were exculpatory and it wasn't going to be subject to cross-examination, right?

[00:20:14] Speaker 04:
Yes, and Your Honor focused on exactly what the district court considered very relevant, which was the chronology.

[00:20:21] Speaker 04:
And I would just like to bring that into focus.

[00:20:23] Speaker 04:
Would you please, that would be helpful.

[00:20:25] Speaker 04:
Yes.

[00:20:25] Speaker 04:
The chronology of when these conversations took place

[00:20:28] Speaker 04:
was after search warrants had been issued in November of 2018.

[00:20:32] Speaker 04:
It was after a conversation between Jose Wizar and Justin Kim, where Jose Wizar, this was in October of 2018, where Jose Wizar told him

[00:20:44] Speaker 04:
Georgia Spars is still holding on to the money.

[00:20:46] Speaker 04:
I don't have it yet.

[00:20:47] Speaker 04:
And Justin Kim testified.

[00:20:48] Speaker 04:
He then had told David Lee that.

[00:20:50] Speaker 04:
Then we come to March 2019.

[00:20:53] Speaker 04:
On March 5, 2019, Justin Kim is served for a search warrant for his phone.

[00:20:59] Speaker 04:
He retains an attorney.

[00:21:00] Speaker 04:
And he has a conversation with David Lee.

[00:21:02] Speaker 04:
That's an unrecorded conversation on March 10, 2019.

[00:21:06] Speaker 04:
He tells David Lee, I got an attorney.

[00:21:10] Speaker 04:
The government took my phone and I told the attorney the truth.

[00:21:15] Speaker 04:
David Lee is upset with him.

[00:21:17] Speaker 04:
He tells him he shouldn't have done that.

[00:21:19] Speaker 04:
He instructs him to fire his attorney so they can match their stories.

[00:21:23] Speaker 04:
To get a new attorney?

[00:21:24] Speaker 04:
To get a new attorney.

[00:21:27] Speaker 04:
After that... Did Lee get a new phone?

[00:21:29] Speaker 04:
Lee also got a new phone.

[00:21:30] Speaker 04:
Okay.

[00:21:31] Speaker 04:
Yes.

[00:21:32] Speaker 04:
And Justin Kim testified that he got a new phone because the government had taken his phone and David Lee got a new phone at that point.

[00:21:39] Speaker 04:
Then, two days after that conversation, the government serves a subpoena on David Lee for 940 Hill's documents.

[00:21:48] Speaker 04:
That is when this conversation takes place.

[00:21:52] Speaker 04:
The conversation was after the subpoena was served.

[00:21:55] Speaker 04:
It was after the subpoena was served.

[00:21:56] Speaker 04:
It was after the initial conversation where David Lee said they needed to match their stories.

[00:22:01] Speaker 04:
and that Justin Kim should fire his lawyer, and that he was specifically angry with Justin Kim about the amount of the bribe that he had disclosed to his attorney.

[00:22:11] Speaker 04:
David Lee also, right before this meeting, it's the first time that he instructs an employee to start creating these false records.

[00:22:19] Speaker 04:
That's on March 18th.

[00:22:22] Speaker 04:
So this March 20th conversation takes place, and in it... That's the restaurant.

[00:22:26] Speaker 04:
Now we're in the restaurant.

[00:22:28] Speaker 04:
Yes, this is the restaurant.

[00:22:29] Speaker 04:
And in this, the district court was well within his discretion in determining that David Lee is attempting to come up with a plausible cover story.

[00:22:40] Speaker 04:
And that's why the chronology is quite important.

[00:22:43] Speaker 04:
The court also needs to consider

[00:22:45] Speaker 04:
that these transcripts were presented in full.

[00:22:50] Speaker 04:
The defense is focusing here on a few questions in those transcripts.

[00:22:54] Speaker 04:
One is two pages, one is three pages.

[00:22:56] Speaker 04:
There's a lot of text.

[00:22:57] Speaker 04:
There's a lot of information that is plainly hearsay.

[00:23:00] Speaker 04:
Justin Kim will talk for half of a page in one of the transcripts.

[00:23:04] Speaker 04:
That's what was presented to the district court for admission, not just those few questions.

[00:23:10] Speaker 03:
How was it presented to the jury?

[00:23:11] Speaker 04:
which part your honor well that's what I'm trying to get at you you've said they were presented in full you mean to the court I'm saying when the defense saw admission they didn't only seek admission of the questions that they're sort of focusing on in the appeal they saw admission of these full

[00:23:28] Speaker 04:
two and three page transcripts, which were much longer and had lots of back and forth, including Justin Kim asking questions and David Lee answering, David Lee asking questions and Justin Kim answering, and then them just talking and making assertions all over the place.

[00:23:42] Speaker 04:
So the questions are actually quite a small part of those transcripts overall.

[00:23:46] Speaker 03:
Okay, but you have lost me because now you're suggesting that the—I don't think you mean to say that the entirety of the transcript was—that the government sought to admit the entire transcript.

[00:23:55] Speaker 04:
I'm saying the defense sought to admit the entirety of these two transcripts that they're challenging on appeal.

[00:24:01] Speaker 04:
And those transcripts in— It's 118A and 118B.

[00:24:05] Speaker 03:
I understand that.

[00:24:08] Speaker 03:
Can you just tell me how were the portions that were submitted to the jury presented to the jury?

[00:24:12] Speaker 03:
They were read into the record.

[00:24:14] Speaker 04:
Right.

[00:24:15] Speaker 04:
By whom?

[00:24:16] Speaker 04:
they were read into the record by different persons.

[00:24:18] Speaker 04:
So during trial,

[00:24:20] Speaker 04:
They came in during Agent Saavedi's testimony, portions of them.

[00:24:24] Speaker 04:
And so they were read by AUSAs.

[00:24:26] Speaker 04:
And then Justin Kim, during his testimony, read his portion into the record.

[00:24:31] Speaker 04:
And an AUSA read the other portion.

[00:24:34] Speaker 03:
OK.

[00:24:34] Speaker 03:
And the defense, of course, is invoking the rule of completeness, as well as hearsay.

[00:24:38] Speaker 03:
And they wanted more, or perhaps all, of the transcripts to be read, correct?

[00:24:44] Speaker 03:
Did the jury know that the conversation took place in Korean?

[00:24:48] Speaker 03:
I think it had to be translated?

[00:24:49] Speaker 04:
They did know they were provided the jury instruction that these were originally in Korean.

[00:24:55] Speaker 04:
They were translated and they were to only consider the English language.

[00:24:59] Speaker 04:
So they weren't the jury didn't hear it audibly.

[00:25:01] Speaker 04:
Correct.

[00:25:02] Speaker 04:
Okay.

[00:25:03] Speaker 04:
That's correct.

[00:25:05] Speaker 04:
And so given that context of

[00:25:07] Speaker 04:
chronologically when this is happening, and also the context of what the district court was considering, what defense was actually trying to admit was longer portions than the few questions that they're focusing on.

[00:25:19] Speaker 04:
The district court certainly did not abuse its discretion, and in any case, the air would be harmless.

[00:25:25] Speaker 04:
The defense focused in their argument on the drop in an ocean comment, but there were similar comments like that that the defendant made in the excluded transcripts, including

[00:25:35] Speaker 04:
that Wizar probably did tens and hundreds, which is a very similar comment.

[00:25:40] Speaker 04:
So if there was an error, it certainly would be harmless.

[00:25:44] Speaker 04:
Does the court have any other questions about that?

[00:25:46] Speaker 03:
Well, not about.

[00:25:47] Speaker 03:
I guess I have a question about, and I asked the opposing counsel about the photos at SCR 248 through 250.

[00:25:53] Speaker 03:
This is the photo of the cash with the handwritten notes.

[00:25:55] Speaker 03:
Those were admitted, Your Honor.

[00:25:56] Speaker 03:
Right.

[00:25:57] Speaker 03:
And so my question is, were those admitted before or after the transcripts that we were just discussing?

[00:26:05] Speaker 04:
I believe that those were admitted during George Esparza's testimony, so they would have been both before and after because Agent Savetti testified to some of the transcripts, then George Esparza testified and Justin Kim testified later in the trial.

[00:26:20] Speaker 03:
Okay, thank you.

[00:26:22] Speaker 04:
Would the court like to hear argument on the First Amendment issue or?

[00:26:28] Speaker 03:
not from my account.

[00:26:31] Speaker 03:
I'm interested.

[00:26:31] Speaker 00:
I guess, I suppose your friend raised the question, does the government have a uniform position on the use of social media searches for jurors?

[00:26:46] Speaker 00:
It seems to have taken different positions in different places.

[00:26:49] Speaker 04:
I think that there is not a uniform position.

[00:26:52] Speaker 04:
It sort of matters with respect to the publicity in the case and other issues.

[00:26:58] Speaker 04:
Also, we hadn't had a chance to sort of look into this issue, discuss it as a team.

[00:27:03] Speaker 04:
It really was a surprise.

[00:27:04] Speaker 04:
It was a curve ball that was created by the defense.

[00:27:07] Speaker 04:
It was not created by the government.

[00:27:10] Speaker 00:
Which way does the publicity in a case cut?

[00:27:13] Speaker 04:
The publicity in the case would cut against social media research, Your Honor.

[00:27:18] Speaker 04:
And that sort of goes along with a line of cases that, which is separate from the First Amendment, but under the Sixth Amendment, the right to a public trial, anonymous juries.

[00:27:29] Speaker 04:
courts have found that where there's publicity at issue in order to protect jurors, make them feel safe and secure in making their decision without the outside eyes prying in, without thinking that by becoming jurors, they're relinquishing all of their privacy rights, that that would actually be in favor of not allowing it.

[00:27:53] Speaker 04:
You move on to the official act issue and how this squares with the McDonald and Certainly honor the instructions here Properly defined official act and actually it's completely consistent with McDonald Defense doesn't actually argue otherwise the instructions specifically quotes from McDonald it says that any decision or action on a matter of

[00:28:19] Speaker 04:
cause or suit proceeding, or controversy involving the formal exercise of power.

[00:28:24] Speaker 04:
It also properly identified what is not an official act, which is merely arranging a meeting, hosting an event, or giving a speech that would not be sufficient.

[00:28:35] Speaker 04:
And it properly identified the matter that was pending, which was the Creed LA appeal.

[00:28:40] Speaker 00:
And so the formal exercise of power was the request of a private party to drop their appeal.

[00:28:50] Speaker 04:
The formal exercise of power was the vote, and importantly was the vote.

[00:28:56] Speaker 04:
Agreeing to vote against the project.

[00:28:57] Speaker 04:
Agreeing to vote against the project or leveraging the vote against the project in order to reach the same result, which is getting the appeal dismissed.

[00:29:05] Speaker 04:
The important thing to think about here, and the McDonald has focused on, and that in the related case, Shenzhen, the court focused on, which is you're looking at the bribe giver's intent.

[00:29:16] Speaker 04:
And as soon as a pair of a bribe gives or offers a payment in exchange for an official act, that's enough.

[00:29:26] Speaker 04:
He doesn't have to say how that's going to be accomplished.

[00:29:29] Speaker 04:
And actually, the official doesn't have to say how that's going to be accomplished.

[00:29:33] Speaker 04:
This matter was pending before the city.

[00:29:36] Speaker 04:
And it and Jose we's are would have a vote both in plum and city council.

[00:29:41] Speaker 04:
And so, being able to use his vote to actually vote against it or to telegraph his vote in order to reach the same result.

[00:29:48] Speaker 04:
That is an official act.

[00:29:51] Speaker 04:
The court said it didn't want to usually in determining what is a quo.

[00:29:55] Speaker 04:
It shouldn't be fully categorical.

[00:29:57] Speaker 04:
It's up to the jury under the facts of the case to determine whether the public official agreed to perform an official act at the time of the alleged quid pro quo.

[00:30:07] Speaker 00:
Is that a matter of degree, I guess we think, in McDonald and some of the court's concerns there?

[00:30:14] Speaker 00:
I guess you could say the official act is that at some point the governor could fire or demote someone if they didn't hold the meeting, if they didn't do the unofficial act that was being acted upon.

[00:30:30] Speaker 00:
How do we distinguish that?

[00:30:32] Speaker 00:
Yes, he could take the vote, but the direct act here is pressuring the group.

[00:30:38] Speaker 04:
Because it's still the nexus of that is still the vote.

[00:30:42] Speaker 04:
He can't exert that pressure without telegraphing as he did.

[00:30:46] Speaker 04:
I'm going to vote against you.

[00:30:47] Speaker 00:
But a governor can telegraph, can exercise that pressure because in McDonald, all these questions are being arranged with subordinates, people over whom the governor had power.

[00:30:59] Speaker 00:
But the court said, no, that's not an official act.

[00:31:00] Speaker 04:
That's different because here there was actually a matter pending in front of him.

[00:31:05] Speaker 03:
So this is a matter... Are you referring to the Plum Committees, the proposal for the Plum... What are you referring to exactly?

[00:31:10] Speaker 04:
The appeal.

[00:31:10] Speaker 04:
The union's appeal was pending.

[00:31:12] Speaker 04:
It was a matter that was going to go through the commission and it was going to come in front of Jose Weiser on his desk.

[00:31:18] Speaker 04:
It's not unlike...

[00:31:19] Speaker 04:
if a judge had a law.

[00:31:21] Speaker 03:
And wasn't there more than that?

[00:31:23] Speaker 03:
So you're kind of saying two things.

[00:31:26] Speaker 03:
And I just want to be very clear on this.

[00:31:29] Speaker 03:
I think you might be heard to be arguing that the Official Act was agreeing to pressure the union to withdraw their appeal.

[00:31:36] Speaker 03:
And you might have said a minute ago that the Official Act was promising to vote against

[00:31:41] Speaker 04:
It's both, it's using the vote both ways.

[00:31:44] Speaker 04:
Both of those require him to have a vote and it gives him power over, it gives him official power over the litigants.

[00:31:52] Speaker 04:
So imagine a judge has litigants.

[00:31:55] Speaker 03:
I don't understand what you mean when you say using the vote both ways.

[00:31:58] Speaker 03:
He wouldn't vote presumably if the appeal's withdrawn.

[00:32:00] Speaker 03:
So I don't know what you mean.

[00:32:01] Speaker 04:
Wouldn't vote, he doesn't have to vote.

[00:32:03] Speaker 04:
He was able to pressure by saying I'm going to vote

[00:32:07] Speaker 03:
So is your response that the official act is exerting pressure?

[00:32:12] Speaker 03:
Or is your response that the official act was promising to vote against it?

[00:32:18] Speaker 04:
Well, first, he doesn't have to say how he's doing it.

[00:32:20] Speaker 03:
I'm just asking for your theory.

[00:32:22] Speaker 04:
What he actually did is both things.

[00:32:24] Speaker 04:
He said either way, and that's also in the notes.

[00:32:26] Speaker 04:
And as far as this notes.

[00:32:27] Speaker 04:
That's the direct answer.

[00:32:28] Speaker 04:
I'll take it.

[00:32:28] Speaker 04:
Thank you.

[00:32:29] Speaker 04:
OK.

[00:32:29] Speaker 04:
Thank you.

[00:32:30] Speaker 04:
And I would also note that in McDonald,

[00:32:34] Speaker 04:
It said that an action eliminating something, a qualifying step before it actually gets to an other official act would qualify as an official act.

[00:32:45] Speaker 04:
And that is important here.

[00:32:47] Speaker 04:
Did Your Honor have any other questions with respect to that?

[00:32:50] Speaker 00:
No, thank you.

[00:32:52] Speaker 04:
Were there any other questions?

[00:32:54] Speaker 02:
Appears not.

[00:32:56] Speaker 04:
Okay.

[00:32:56] Speaker 04:
Thank you.

[00:32:56] Speaker 04:
On that, I would submit.

[00:32:58] Speaker 04:
Thank you very much, Your Honors.

[00:32:59] Speaker 04:
Thank you, Council.

[00:33:00] Speaker 04:
Rebuttal?

[00:33:08] Speaker ?:
Okay.

[00:33:15] Speaker 01:
Thank you, Your Honor.

[00:33:16] Speaker 01:
Two points each on the First Amendment issue and the hearsay slash completeness issue.

[00:33:23] Speaker 01:
Number one, even if unpreserved, de novo review should apply to the First Amendment issue because it is a question of pure First Amendment law because there were no facts proffered by the government or cited by the district court in its opinion.

[00:33:40] Speaker 01:
And that leads me to my second point related to the First Amendment issue, which is that there was absolutely no requirement for the defense to give notice to the government or the district court that it was going to do this research, which is extremely commonly done research.

[00:33:57] Speaker 01:
Virtually any trial team with the resources would do this research.

[00:34:01] Speaker 01:
Just as pointed out in the government's brief in the D.C.

[00:34:04] Speaker 01:
Trump case, it's vital to jury selection.

[00:34:08] Speaker 01:
Proceeding to the hearsay slash completeness portion of argument, you know, it's true that admission of those statements would not have allowed cross-examination of the defendant, but that's always true any time it's a defendant's out-of-court statement, and it's, of course, not the rule of law that a defendant's out-of-court statements can never be admitted.

[00:34:34] Speaker 01:
It's not a special hearsay rule applicable to criminal defendants.

[00:34:38] Speaker 01:
And the other point related to

[00:34:47] Speaker 01:
That would, of course, have to be balanced with the evidence that's on the recordings themselves.

[00:34:53] Speaker 01:
I would submit that the timing type of evidence is more attenuated than Justin Kim's live responses on the recording to the questions as he heard them.

[00:35:05] Speaker 01:
And if it was a tie, the tie goes to the defendant because the government had the burden to show assertive intent in the questions.

[00:35:19] Speaker 01:
And so in conclusion, the right to receive information is fundamental to our society.

[00:35:27] Speaker 01:
And I hope the court will strongly consider remanding because of the unconsidered violation of that right in the district court.

[00:35:35] Speaker 02:
Thank you.

[00:35:36] Speaker 01:
Thank you.

[00:35:36] Speaker 02:
Thank you to both counsel for your helpful arguments.

[00:35:38] Speaker 02:
The case just argued is submitted for a decision by the court.

[00:35:43] Speaker 02:
This completes our calendar for the day and for the week we are adjourned.

[00:35:58] Speaker 05:
This court for this session stands adjourned.