[00:00:00] Speaker 01:
It would be Mr. McClellan, is that correct?

[00:00:04] Speaker 00:
That's correct, Your Honor.

[00:00:04] Speaker 00:
Sean McClellan on behalf of appellant James McGee.

[00:00:07] Speaker 00:
And if I could, I'll try and save four minutes for rebuttal and I'll watch my time.

[00:00:11] Speaker 01:
Thank you.

[00:00:12] Speaker 00:
May it please the court?

[00:00:13] Speaker 00:
In this case, Mr. McGee was subject to a trial that was riddled with evidentiary errors and a sentencing that failed to comply with due process requirements and committed some independent errors as well.

[00:00:24] Speaker 00:
Mindful of the court's focus letter, I'll touch first on the Montoya issue just briefly because the government has informed me that it intends to agree that remand for resentencing is appropriate.

[00:00:36] Speaker 00:
And that's correct.

[00:00:38] Speaker 00:
Under Montoya, either oral pronouncement of the discretionary conditions or reference back to a form that had been provided the defendant

[00:00:47] Speaker 00:
uh, needs to happen for the discretionary conditions to be effectively orally pronounced.

[00:00:52] Speaker 00:
Neither of those things happened here as a result at a minimum remand, uh, for those sentencing conditions, discretionary conditions.

[00:00:59] Speaker 01:
Are they conceding it?

[00:01:00] Speaker 00:
That's my understanding, Your Honor.

[00:01:02] Speaker 00:
I believe the government can address that.

[00:01:04] Speaker 01:
Just because they're conceding it, having been a trial judge and sentenced to a lot of people, it seems like you're looking for magic words.

[00:01:12] Speaker 01:
But I'm not sure, and it seems like there was a pretty definite, I'm not sure I agree with that, but I'm not sure I would fight that.

[00:01:24] Speaker 04:
I have a factual question about that.

[00:01:27] Speaker 04:
As I understand it, the standard conditions were listed in the pre-sentencing report.

[00:01:35] Speaker 04:
Am I wrong about that?

[00:01:37] Speaker 00:
I don't believe that's correct, Your Honor.

[00:01:38] Speaker 00:
The pre-sentence investigation report referred to generically the standard conditions, but did not specifically list the standard conditions.

[00:01:46] Speaker 00:
So it doesn't comply with Montoya's possible reference back exception.

[00:01:52] Speaker 00:
And the standard discretionary conditions

[00:01:55] Speaker 00:
were not orally pronounced at sensing either.

[00:01:57] Speaker 04:
So under Montoya, I knew I knew that part.

[00:02:00] Speaker 04:
I wasn't I wasn't positive about the other.

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

[00:02:03] Speaker 02:
I actually had a question about the exact language, because this issue is going, the Montoya issue is just coming up all the time now.

[00:02:11] Speaker 02:
So the PSR said, quote, the standard conditions recommended by the Sentencing Commission, end quote.

[00:02:16] Speaker 02:
What is that?

[00:02:18] Speaker 02:
I wasn't sure what that was referring to.

[00:02:20] Speaker 02:
Is there something in the Sentencing Guidelines that specifically lays that out?

[00:02:24] Speaker 02:
I wasn't aware what that was.

[00:02:26] Speaker 00:
Yeah, so this is basically the Montoya problem, and that's why the generic reference to standard conditions doesn't cut it under Montoya, because we actually don't know specifically what's going on.

[00:02:36] Speaker 02:
Well, I agree with you on the Montoya issue, so I'm there.

[00:02:38] Speaker 02:
But I just want to know for future, if this comes up again, where do you look to to find the standard conditions recommended by the Sentencing Commission?

[00:02:48] Speaker 02:
Is there a listing?

[00:02:49] Speaker 02:
Is there a document somewhere?

[00:02:51] Speaker 02:
Because this issue is going to keep coming up, and I would just like to know, actually.

[00:02:54] Speaker 00:
Understood, Your Honor.

[00:02:55] Speaker 00:
I think the standard conditions are, well, some conditions are discussed in the sentencing guideline manual, but we don't know exactly what the probation office is necessarily referring to.

[00:03:05] Speaker 00:
And we certainly don't on this record.

[00:03:08] Speaker 00:
But I would suppose it is generically referring to conditions discussed in the sentencing guidelines.

[00:03:14] Speaker 02:
But I don't even recall in the sentencing guidelines where it says what the standard conditions are.

[00:03:20] Speaker 02:
That was my confusion.

[00:03:22] Speaker 00:
And I don't either, your honor.

[00:03:24] Speaker 00:
I don't recall specifically where in the sentencing guidelines manual, they would have even referred to standard conditions.

[00:03:31] Speaker 02:
Cause that's more about like length of time, whether you get probation or home confinement and how you calculate the amount of time.

[00:03:39] Speaker 02:
I don't recall seeing anything laying out in the U S sentencing guidelines, the standard conditions.

[00:03:46] Speaker 02:
And I don't recall saying here either.

[00:03:48] Speaker 01:
OK, maybe the government can help with that.

[00:03:49] Speaker 01:
So are you saying that there was reference to a part?

[00:03:54] Speaker 01:
Are you saying in the part that was referenced the standard conditions were not listed?

[00:04:01] Speaker 00:
That's correct, Your Honor.

[00:04:03] Speaker 00:
In the precinct's investigation report, it's a reference to generically standard conditions.

[00:04:08] Speaker 00:
Montoya requires, if you're going to go that route on the reference back, those standard conditions needing to be listed out in a form.

[00:04:16] Speaker 00:
or orally pronounced at sentencing, neither of which ever.

[00:04:18] Speaker 02:
Or no, there could be a document that lists them that is incorporated by reference.

[00:04:23] Speaker 02:
You would concede that, right?

[00:04:25] Speaker 00:
Yes, Your Honor, but that was not provided in the government.

[00:04:28] Speaker 02:
Right, here I don't know what standard conditions recommended by the Sentencing Commission means.

[00:04:35] Speaker 00:
Agreed, Your Honor, and so remand under Montoya is appropriate.

[00:04:38] Speaker 00:
To address the other issues that the court identified in its focus letter, I'll touch first on Brady and then turn to the handwriting issue with respect to Agent Williams' testimony.

[00:04:47] Speaker 00:
So with respect to Brady, we're looking at the framework for Brady violations laid out by this court's case in Price, where there's favorable information that was not reported.

[00:04:58] Speaker 04:
Let me cut to the chase on this one.

[00:05:01] Speaker 04:
As I understand it, the claim is that

[00:05:03] Speaker 04:
the failure to reveal that a person who copied a license at the post office in 2015 was white.

[00:05:14] Speaker 04:
Is that the correct focus of your claim?

[00:05:18] Speaker 04:
That's correct, Your Honor, and that's... Okay, well, what I have difficulty understanding is how that is

[00:05:25] Speaker 04:
relevant, it's undisputed that your client didn't work at the post office then and nobody's ever claimed that he copied the license and the fact that one person copied something a while ago, it just seems totally irrelevant.

[00:05:42] Speaker 04:
I don't understand how it's exculpatory.

[00:05:45] Speaker 00:
So a couple of thoughts, Your Honor.

[00:05:47] Speaker 00:
One, it's not undisputed as to my client's employment at the post office at the time.

[00:05:52] Speaker 00:
The record is actually unclear.

[00:05:53] Speaker 00:
The government didn't prove one way or the other whether he was working there at the time.

[00:05:59] Speaker 00:
But more broadly, we're dealing with the suppression of what's effectively an alternate suspect.

[00:06:04] Speaker 00:
And that's a problem under Jernigan, which is?

[00:06:08] Speaker 04:
There's another question I have, too.

[00:06:11] Speaker 04:
It's not clear to me that the prosecutor

[00:06:14] Speaker 04:
I knew this information.

[00:06:16] Speaker 04:
And if I'm wrong about that, I'd appreciate your letting me know.

[00:06:23] Speaker 04:
But if the prosecutor didn't know, that seems to be another potential issue for your claim.

[00:06:33] Speaker 00:
So the knowledge of the agent alone is sufficient for Brady issues under this court's cases, including, for instance, Price.

[00:06:43] Speaker 00:
But more broadly, we're, again, dealing with the suppression of a possible alternate suspect.

[00:06:49] Speaker 01:
Well, except also two.

[00:06:52] Speaker 01:
But the evidence actually, just so that we have the record correct, the evidence actually came in about she said, the woman that I'm spacing on her name right now, but she said,

[00:07:09] Speaker 01:
I think I gave my witness to a white person, all right, then that came in at trial and also the agent said something like, well, was equivocal about maybe she did say that, I don't know, and so all of that came in, but then what

[00:07:33] Speaker 01:
The prosecution didn't use that license for anything, and then I think the district court, if I'm not mistaken, said, okay, I'm just going to assume, going to get you over the first step, going to assume it, but say it's just not prejudicial.

[00:07:50] Speaker 01:
It all came in.

[00:07:52] Speaker 01:
your client, they have the video and shows your client selling the money order to the alleged, I think first name starts with A, if I'm not mistaken.

[00:08:09] Speaker 01:
the woman that bought the money order.

[00:08:11] Speaker 01:
So I kind of share Judge Graber's, what does it matter?

[00:08:16] Speaker 01:
The license could have gotten there anyway and no one ever .

[00:08:19] Speaker 01:
.

[00:08:19] Speaker 01:
.

[00:08:20] Speaker 01:
I know you're kind of going for the, is it that some other dude did it, you know, that somehow

[00:08:25] Speaker 01:
a white person sold the money order.

[00:08:29] Speaker 01:
But your client's right on the video selling the money order to this person.

[00:08:34] Speaker 00:
So I think the court's questions go largely to the prejudice question here.

[00:08:39] Speaker 00:
And the late disclosure undeniably prejudiced the defense in a number of different ways.

[00:08:44] Speaker 00:
One, had we had this information prior to trial, could have investigated and found a possible white suspect who got the driver's license that

[00:08:53] Speaker 00:
resulted ultimately in the number on the back of Ms.

[00:08:56] Speaker 00:
Dragulescu's money orders.

[00:08:57] Speaker 01:
Well, are we bound by the district court assuming relevance?

[00:09:01] Speaker 01:
If we don't think it was even relevant, then it's over.

[00:09:06] Speaker 01:
We're not bound by that, right?

[00:09:08] Speaker 01:
We look at it de novo, correct?

[00:09:10] Speaker 00:
The court can review the full record, but even reviewing the full record, the district court is correct that this is possibly favorable information to the defense because this is a key component of the alleged completion of this crime.

[00:09:23] Speaker 00:
Putting the driver's license information on the back of the money order is critical to getting the money.

[00:09:29] Speaker 00:
And so as a result, an individual who took the driver's license, even if it was a period of time before, is a very strong alternative suspect.

[00:09:39] Speaker 00:
gives us a third-party culpability defense that we didn't have before this late disclosure of the information.

[00:09:45] Speaker 00:
We would have conducted a defense investigation, done different voir dire questions.

[00:09:48] Speaker 02:
What is your answer to the prejudice question?

[00:09:51] Speaker 02:
You have the victim identifying him.

[00:09:53] Speaker 02:
As Judge Callahan says, you got on surveillance photos, videos.

[00:09:57] Speaker 02:
You've got the pay stub of one of the money orders in his car.

[00:10:02] Speaker 02:
The evidence seems overwhelming.

[00:10:04] Speaker 01:
And then you have the selling the $1 money orders.

[00:10:07] Speaker 01:
Then you have deposits in the Navy credit union.

[00:10:11] Speaker 02:
So the transaction records showing they're all at a Clark 12.

[00:10:15] Speaker 02:
I mean, what is the response to that, even if you had been able to conduct this additional investigation?

[00:10:20] Speaker 00:
There was quite a bit of evidence in the record calling into doubt the accuracy of the timestamps.

[00:10:25] Speaker 00:
We have a standalone timestamp video argument.

[00:10:30] Speaker 00:
There's quite a bit of evidence that individuals who are at

[00:10:34] Speaker 00:
these particular kiosks step away for periods of time.

[00:10:38] Speaker 00:
It could well have been another person who takes these matters.

[00:10:41] Speaker 01:
Is the prejudice mitigated by the fact that the evidence actually came in, too?

[00:10:46] Speaker 01:
That's something that can be considered, too, right?

[00:10:49] Speaker 01:
Because we're not talking about it didn't come in, and then you discover it later, right?

[00:10:54] Speaker 00:
Short answer, no, because we could have taken additional steps prior to the late disclosure of the information.

[00:11:00] Speaker 01:
So if I distill your argument,

[00:11:03] Speaker 01:
The fact that you didn't know it before tied your hands in developing what we call the Saudi defense.

[00:11:11] Speaker 01:
Some other dude did it, right?

[00:11:13] Speaker 00:
Correct.

[00:11:13] Speaker 00:
Basically, had we known this information before ... Oh, I apologize, Judge Graber.

[00:11:18] Speaker 04:
I'm sorry.

[00:11:18] Speaker 04:
I somewhat stepped on Judge Callahan's question.

[00:11:22] Speaker 04:
I apologize for that.

[00:11:25] Speaker 04:
Did you ask for a recess or some other opportunity when this came out to investigate?

[00:11:35] Speaker 00:
We requested a mistrial, Your Honor, and the district court would have been within its discretion to continue to allow defense investigation.

[00:11:42] Speaker 04:
I mean, at the point of- Did you ask for that specifically?

[00:11:45] Speaker 04:
Did you say we'd like a data to see what we can find out?

[00:11:49] Speaker 00:
We didn't specifically ask for it, Your Honor, but that request would have been subsumed in the mistrial request.

[00:11:53] Speaker 00:
At that point, anyhow, we're

[00:11:55] Speaker 00:
multiple years after the event, had we had the information at the beginning of trial, we would have proceeded differently.

[00:12:01] Speaker 00:
Mindful of time, I'll just quickly touch on the handwriting point, and then I'd like to reserve the remainder of my time for rebuttal.

[00:12:08] Speaker 00:
The handwriting question, let me start by saying the government has never argued that Agent Williams' testimony didn't arise from this current litigation.

[00:12:20] Speaker 00:
Even if it did, its argument would be foreclosed by this court's decision in People versus Cepeda, which is also consistent with the Fifth Circuit's Pitts opinion, which we discuss at length.

[00:12:31] Speaker 01:
Well, haven't other courts like the Eleventh Circuit adopted, you've got the Eleventh Circuit in Hall, and didn't Agent Williams acquire her familiarity with McGee's handwriting differently?

[00:12:45] Speaker 01:
than the officer in Cepeda, but I guess at the end of the day, even if you assume it was error, what does it really matter here?

[00:12:54] Speaker 00:
So this court's bound by Cepeda, and Cepeda's again consistent with Pitts.

[00:13:00] Speaker 00:
We acknowledge that the court identified in its focus letter the 11th Circuit seems to see things somewhat differently.

[00:13:06] Speaker 00:
We think that that's distinguishable for a couple of reasons, not least of which the investigator in Ariel had substantially more familiarity

[00:13:14] Speaker 00:
much longer period of time of exposure to the defendant's handwriting samples.

[00:13:20] Speaker 04:
Why wasn't this harmless error, if it was error at all, in view of the other testimony and the fact that this seems to be kind of not the main piece of evidence in the case?

[00:13:34] Speaker 00:
So I think that the clearest reason it wasn't harmless error is because the government continuously hyped up how important this evidence was.

[00:13:41] Speaker 00:
So for instance, it repeatedly argued how probative the $1 money orders were.

[00:13:46] Speaker 00:
That's two ER 147 to 60.

[00:13:48] Speaker 04:
But there's another witness, isn't there, who also testified about the handwriting?

[00:13:52] Speaker 04:
Wasn't there a second witness?

[00:13:54] Speaker 00:
There was also testimony from Sanders-Castro, but her handwriting testimony is deficient because it lacks the requisite familiarity under, for instance, the 11th Circuit's Hall decision or the 7th Circuit's Benzell, which is, again, consistent with Cepeda and Pitts.

[00:14:08] Speaker 02:
But the trial counsel didn't object to her testimony, correct, about the handwriting?

[00:14:12] Speaker 00:
We objected to the introduction of the $1 money orders more broadly, and we objected specifically to Agent Williams' testimony.

[00:14:20] Speaker 01:
But not Sanders-Castro.

[00:14:23] Speaker 01:
Specifically said she could testify, in fact, right?

[00:14:26] Speaker 00:
That's correct, Your Honor, but we believe our broader objection to the introduction of the money orders would be sufficient to preserve the issue, but even under plain error review, we would satisfy plain error as to Sanders-Castro.

[00:14:37] Speaker 00:
But with respect to the court's questions about Agent Williams, her testimony fails under Cepeda and Pitts.

[00:14:45] Speaker 00:
Seeing as I'm quite close to my time, I'll reserve the remaining time.

[00:14:48] Speaker 01:
I'm going to give you two minutes, because we had a lot of questions for you.

[00:14:52] Speaker 01:
Thank you.

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

[00:15:01] Speaker 01:
Good morning.

[00:15:02] Speaker 01:
I think we have Ms.

[00:15:04] Speaker 01:
Hatley.

[00:15:06] Speaker 03:
Ms.

[00:15:06] Speaker 03:
Ahmed, Your Honor.

[00:15:08] Speaker 01:
Oh, that's the next one, so we have Nadia Ahmed.

[00:15:12] Speaker 03:
Yes, Your Honor.

[00:15:13] Speaker 01:
Okay, good morning.

[00:15:14] Speaker 03:
Good morning.

[00:15:14] Speaker 03:
May it please the Court, Your Honor, it's Nadia Ahmed on behalf of the United States.

[00:15:18] Speaker 03:
Your Honor, just so the record's clear on the Montoya issue, Mr. McMillan is correct that I had messaged him saying that we would concede remand for the limited purpose of the District Court putting on the record the standard conditions, which she did not orally do, other than through the reference to the PSR.

[00:15:36] Speaker 03:
That said, Your Honor, I didn't want to reference for the court's purposes, since the question was asked, that in the sentencing guidelines, there is a specific reference to the standard conditions.

[00:15:47] Speaker 01:
It is in there, and that's at... Is the problem here that the standard conditions weren't obvious on the reference to the page?

[00:15:59] Speaker 01:
In the PSR, it says- Having been a trial judge, and if you say, okay, well, I'm imposing the standard conditions that are on page 10 without going through all of them, would that satisfy Montoya in your view?

[00:16:13] Speaker 03:
Your Honor, I think if it had been ... There are 13 standard conditions that are explicitly stated in the sentencing guidelines.

[00:16:23] Speaker 03:
If the court had said, I'm imposing all 13- What section number is that?

[00:16:26] Speaker 02:
I'd like to go look at it.

[00:16:27] Speaker 03:
Yes, Your Honor.

[00:16:30] Speaker 03:
I made a point of writing it down on one of my many pages here.

[00:16:35] Speaker 03:
It's section 5B1.3C.

[00:16:42] Speaker 03:
Thank you.

[00:16:42] Speaker 03:
At least I wrote that down.

[00:16:44] Speaker 03:
Your Honor, I would also note that in Montoya, they referenced 5D1.3C, so just in case.

[00:16:50] Speaker 03:
I might be off, it should be right there.

[00:16:51] Speaker 02:
How is that different than what you, didn't you say 5D1.3C?

[00:16:54] Speaker 03:
5B1, I wrote it down on my notes, 5B1, but I see that in my copying of Montoya, they wrote 5D1.

[00:17:01] Speaker 03:
Okay, thank you.

[00:17:02] Speaker 03:
But Your Honor, those 13 are listed and they are stated as all 13 are recommended standard conditions.

[00:17:09] Speaker 03:
So on the one hand, you have the Sentencing Commission recommending all 13.

[00:17:14] Speaker 03:
But when the district court says, I'm imposing the standard conditions without clarifying necessarily which ones, I think then that's where it goes amiss of Montoya, which requires there to be clarity for the defendant's sake which conditions are being discussed and imposed.

[00:17:33] Speaker 01:
Well, I don't know if I agree with you, but I don't know if I'm going to fight a stipulation.

[00:17:38] Speaker 01:
I have other things to do with my time.

[00:17:41] Speaker 03:
Thank you, Your Honor.

[00:17:41] Speaker 03:
So moving away from that, I want to start then on the question of the Brady issue.

[00:17:48] Speaker 03:
So first, I think that the court is correct in focusing on the prejudice.

[00:17:55] Speaker 03:
There's no prejudice here.

[00:17:56] Speaker 03:
Really, at the end of the day, there's no prejudice to the defendant.

[00:17:59] Speaker 03:
The strong suggestion by defense counsel throughout the case was that Mr. McGee did not work there.

[00:18:05] Speaker 03:
at the time that the driver's license had been copied.

[00:18:08] Speaker 03:
And just so the court has the... See that the evidence was suppressed by the government?

[00:18:13] Speaker 03:
Your Honor, no, because I don't know that it was favorable evidence.

[00:18:17] Speaker 02:
And so to the extent that... But that's a different prong, right?

[00:18:19] Speaker 02:
That's a wrong one.

[00:18:21] Speaker 02:
We're talking just prong two, suppression.

[00:18:23] Speaker 02:
You can see that one.

[00:18:24] Speaker 03:
So at the end of the day, Your Honor, just to clarify, the allegations that there's three reports, the quick answer, Your Honor, is that what came out in the... Slow down a little.

[00:18:35] Speaker 01:
Okay, slow down a little.

[00:18:36] Speaker 03:
What came out in the trial testimony of the visitor to the post office, Elsis, was that she recalled the person being a white male.

[00:18:49] Speaker 03:
And that was the first time, apparently, she said that in terms of

[00:18:52] Speaker 03:
the reports versus her testimony.

[00:18:55] Speaker 02:
How can that not be favorable?

[00:18:56] Speaker 02:
Mr. McGee is African-American.

[00:18:59] Speaker 03:
Your Honor, it's not favorable.

[00:19:00] Speaker 02:
Said she dealt with a white clerk.

[00:19:02] Speaker 03:
Because, Your Honor, it's not relevant in the sense that we're talking about something that happened 10 months before Mr. McGee then has

[00:19:13] Speaker 03:
that a victim's money orders and writes that driver's license number on the back.

[00:19:18] Speaker 03:
And so really, again, it's not favorable in the sense that it's really atten... And that seems like you're arguing the prejudice prong.

[00:19:25] Speaker 01:
Well, Your Honor, at the end of the day... We don't even know how the license...

[00:19:32] Speaker 01:
when the license number got there, right?

[00:19:35] Speaker 01:
We don't know.

[00:19:37] Speaker 03:
That's correct.

[00:19:39] Speaker 03:
What the government elicited from Alsos was that she had visited once that Valley Verde post office, and at that time, her recollection was that a copy was made of her driver's license.

[00:19:50] Speaker 03:
At most, I think it helps the jury understand how it was possible that he may have obtained that license down the line, but it was never,

[00:20:00] Speaker 03:
never essential really to anybody that they understood perfectly well how he got that information to use on the driver's license because at the end of the day, the argument was put forth by the defense in their closing arguments that this was a white person who collected the driver's license and the government's failed to present any explanation as to how Mr. McGee may have come into

[00:20:23] Speaker 03:
that information.

[00:20:24] Speaker 03:
They didn't put any information into the record about how, whether or not it was preserved.

[00:20:30] Speaker 03:
They made the argument that the government put in a whole manual, 800-page manual about the policies, but didn't present any evidence about this process.

[00:20:37] Speaker 03:
And so they presented that argument to the jury.

[00:20:40] Speaker 02:
So other than that, you think the evidence was unfavorable?

[00:20:43] Speaker 02:
What's your response to suppression?

[00:20:45] Speaker 03:
So, Your Honor, the...

[00:20:49] Speaker 03:
The testimony, I think because Agent Williams testified for the first time in the record, it appears on the stand that she, her understanding was that the person who obtained the driver's license was white.

[00:21:02] Speaker 03:
That information was in her hands at least and she did not, it was not conveyed to the defense.

[00:21:08] Speaker 02:
So is that suppression or not?

[00:21:12] Speaker 03:
Yes, Your Honor, it was information that was not given to the defense.

[00:21:16] Speaker 03:
Did the prosecutor know about it?

[00:21:20] Speaker 03:
Your Honor, the prosecutor's arguments and response, and so I did want to point out that there was not a... Okay, okay.

[00:21:26] Speaker 01:
Did the prosecutor know?

[00:21:29] Speaker 03:
Your Honor, no.

[00:21:30] Speaker 01:
Was it in any report that the prosecutor had?

[00:21:33] Speaker 03:
know that the pot there's nothing in the record that the prosecutors knew and looking at the prosecutors response so the defendants come after the close of the case the next day and they make a motion for the indictment to dismiss far as the record appears it comes out

[00:21:51] Speaker 01:
when the witness testifies and when the officer testifies, is it in any report anywhere?

[00:22:00] Speaker 03:
No.

[00:22:00] Speaker 03:
Your Honor, the defense said that there were three reports.

[00:22:03] Speaker 03:
There's only one that's in this record for this court's review.

[00:22:07] Speaker 03:
That report refers back.

[00:22:09] Speaker 03:
So the defense said that there was an August 1st interview, an August 6th interview, both of 2016, and then there's a 2021 interview.

[00:22:15] Speaker 03:
This is the proffer made by the defense in their motion to dismiss.

[00:22:18] Speaker 01:
So is it suppression of the information, or is it suppression of an actual report where the information is contained?

[00:22:27] Speaker 03:
I understand the question, Your Honor.

[00:22:29] Speaker 03:
Thank you.

[00:22:29] Speaker 03:
So there's no indication that there was any report withheld from them, which is exactly what the prosecutor said to the district court.

[00:22:37] Speaker 03:
The information that they had, they gave to the defense.

[00:22:41] Speaker 03:
And that was that at various points she was asked whatever she said, that's what they gave to the defense.

[00:22:47] Speaker 03:
And so there was never any indication from their records that this information had been documented.

[00:22:52] Speaker 02:
Now, the author... Okay, so Agent Williams interviews Ms.

[00:22:56] Speaker 02:
Elsos and writes a report of that interview, correct?

[00:22:59] Speaker 03:
No, Your Honor, she actually was not the author of the report.

[00:23:01] Speaker 03:
This is where it's a little bit different because Agent Williams was present for these interviews.

[00:23:08] Speaker 03:
But she was not the author of any of the reports.

[00:23:11] Speaker 03:
And so in the end, her recollection was that what they were told was that it was a white male.

[00:23:18] Speaker 03:
But what was documented by the other investigator indicated that when asked, first of all, it looks like from the report that is in the record, she wasn't even asked this question, Miss Elsis, when they first talked to her, because they thought that she had gone and cashed some money orders.

[00:23:34] Speaker 03:
And so their initial inquiry to her was,

[00:23:36] Speaker 03:
did you come to the post office and cash money orders?

[00:23:38] Speaker 03:
They weren't thinking that there was somebody who'd gone and made a photocopy of her license that hadn't even come out yet.

[00:23:42] Speaker 03:
So that's our first report.

[00:23:44] Speaker 03:
In the August 4th, 2016 report that they put in front of Agent Williams, that in that report indicates that she did, that Miss Elsis, when asked about the identity of the post office worker who took her license, she didn't remember.

[00:23:59] Speaker 03:
Agent Williams testified at trial that her recollection was that Ms.

[00:24:04] Speaker 03:
Elsa said at some point in their many conversations that he was white.

[00:24:09] Speaker 03:
What we don't know is there's no clear record of when that might have been because Agent Williams.

[00:24:14] Speaker 01:
And so the district court assumed that

[00:24:21] Speaker 01:
the defense had satisfied the first part, assumed without finding, and moved then to the prejudice argument.

[00:24:29] Speaker 01:
Is that correct?

[00:24:30] Speaker 03:
Yes, Your Honor.

[00:24:31] Speaker 01:
All right.

[00:24:31] Speaker 01:
Do you agree with me, and I think also your friend on the other side said, we can look at it de novo, and we could decide it's not relevant, or it's not material, or whatever, and we could decide it there, but we could also just look, we could assume without finding, and then go to the prejudice prong.

[00:24:50] Speaker 03:
Yes, and that's what we would ask this court to do is that find the record is not necessarily fulsome on this issue in terms of what was put into the district court's record.

[00:25:00] Speaker 03:
But assuming without finding that there was expression on that person's identity, it's not prejudicial.

[00:25:08] Speaker 01:
And his argument of prejudice is had they known it back then, they could have better developed a put suspicion on a third party.

[00:25:19] Speaker 03:
When we analyze prejudice, what do we look at?

[00:25:26] Speaker 03:
First, Your Honor, I would say that they were never foreclosed from doing that.

[00:25:29] Speaker 03:
There is actually no indication that they would have done anything different.

[00:25:31] Speaker 03:
They proffered that they would have done those things differently.

[00:25:34] Speaker 03:
The district court correctly pointed out, well, you've actually been doing that the whole time pretty adeptly.

[00:25:39] Speaker 03:
You've been pointing out that maybe it could have been somebody else who accessed the, you know, Clerk 12 machine.

[00:25:45] Speaker 03:
All throughout the district court in discussing this issue said, you've done that.

[00:25:50] Speaker 03:
You've developed a third party defense all throughout the case.

[00:25:53] Speaker 03:
I've seen it.

[00:25:54] Speaker 03:
And so it's really unclear why, with respect to having the ability to do a third party defense, as to who actually cashed those $1,000 money orders.

[00:26:04] Speaker 01:
Okay, so part of the argument that I understand is that the evidence did come in at trial from the witness and from the agent, correct?

[00:26:17] Speaker 03:
Yes, Your Honor.

[00:26:18] Speaker 01:
So the jury heard that.

[00:26:20] Speaker 03:
That's correct, Your Honor.

[00:26:21] Speaker 01:
Did they argue that that was evidence that it could have been someone else?

[00:26:27] Speaker 03:
They did.

[00:26:28] Speaker 03:
Well, what they argued in closing was if the government doesn't present you with any evidence how Mr. McGee got that driver's license, since you know it was a white person who made the copy, that's the end of the road for a GU jury in terms of Mr. McGee's guilt.

[00:26:46] Speaker 03:
That's not exactly word for word, but that's almost precisely what they argued in closing.

[00:26:50] Speaker 03:
Are you the trial lawyer?

[00:26:51] Speaker 03:
No, Your Honor.

[00:26:52] Speaker 01:
Okay.

[00:26:55] Speaker 03:
Your Honor, before I, with respect to the handwriting issue.

[00:26:58] Speaker 01:
I think, do we have any other questions from Brady?

[00:27:01] Speaker 01:
I don't.

[00:27:01] Speaker 01:
No, thank you.

[00:27:02] Speaker 01:
OK, go to the handwriting.

[00:27:03] Speaker 03:
Thank you, Your Honor.

[00:27:04] Speaker 03:
So I would just note, first of all, that People v. Cepeda is a very different case.

[00:27:09] Speaker 03:
In that case, it was clear that the person who was testifying had been given the information after the case had been indicted and for the purpose of getting on the stand, which is very different from what the court in Ariel and all the other circuits that have looked at this

[00:27:24] Speaker 03:
have determined is the actual issue.

[00:27:27] Speaker 04:
So you did not raise this issue, am I right?

[00:27:32] Speaker 03:
Your Honor is correct that I did not in the answering brief discuss this because we pointed out that at the end of the day, there was no... No prejudice.

[00:27:42] Speaker 03:
No prejudice, Your Honor.

[00:27:44] Speaker 03:
And Your Honor, we actually argued that this is a plain error issue because there was actually no objection during the testimony of the fiance.

[00:27:53] Speaker 03:
And when the prosecutor asked about reviewing the handwriting, there was no objection at that time either.

[00:27:59] Speaker 03:
So the prosecutor elicited without any objection that

[00:28:01] Speaker 03:
Agent Williams looked at the record, or she looked at the employment records and compared that signature to McGee's signature and found that they were similar.

[00:28:11] Speaker 03:
She testified to that without objection.

[00:28:12] Speaker 03:
But in any event, there was no prejudice because the overwhelming evidence, regardless of this signature, indicated that it was Mr. McGee.

[00:28:23] Speaker 01:
And that included, as your Honor... So the jury had all the signatures to look at, correct?

[00:28:27] Speaker 03:
That's correct, Your Honor.

[00:28:29] Speaker 03:
At least for sure, portions of the employment file with his signature were put into the record as exhibits at trial, and the jury had the ability to look at them.

[00:28:39] Speaker 03:
But specifically, counsel indicates that the $1 money orders were very significant for the government's case, but kind of bundles the handwriting into that.

[00:28:50] Speaker 03:
And that's not necessarily true, because

[00:28:52] Speaker 03:
The evidence with respect to the $1 money orders was that they were both bought by Clerk 12, at Clerk 12 stand, right after the victim in this case's money orders were bought, that they were actually, one was signed into McGee's Bank, the other one- $1 is a little bit like when people get your credit card and they put a dollar, they run a dollar first to see if it goes through and then they make the other purchase.

[00:29:19] Speaker 03:
Yes, Your Honor, and the testimony at trial by at least one witness was that you don't see one dollar money orders.

[00:29:26] Speaker 03:
And in fact, it's a red flag for employees because that's less than it costs.

[00:29:31] Speaker 03:
purchase the money order.

[00:29:33] Speaker 03:
And so for them, it's always, they're trained to look for that, essentially.

[00:29:36] Speaker 03:
That was Jasmine Webb that said that, that testified to that.

[00:29:41] Speaker 03:
And Your Honor, at the end of the day, I would know also that counsel pointed to Pitts, which was Fifth Circuit case, but after IRL was decided, the Fifth Circuit also joined in with the other circuits, and there was a decision issued by the Fifth Circuit on this as well that's consistent with them.

[00:29:59] Speaker 03:
And I, in the,

[00:30:01] Speaker 03:
early morning hours of today found that citation and then I'll give it to the court, which it's United States versus Capistrano, 74F, 4th, 756, and it's Fifth Circuit, 2023.

[00:30:14] Speaker 03:
And so that's a Sixth Circuit, it's the Fifth Circuit, but it's a Sixth Circuit to have joined all these other circuits in saying that

[00:30:21] Speaker 03:
901 and 701 don't require that the agent not have looked at this.

[00:30:28] Speaker 03:
An agent can testify as to their lay opinion if they learned about this information in the course of investigating a crime.

[00:30:36] Speaker 03:
That decision is consistent with all the other circuits that have reached that conclusion.

[00:30:39] Speaker 03:
This circuit has also said that agents can testify consistent with what they've discovered in an investigation under 901 and 701 as lay testimony, just not specifically as to handwriting.

[00:30:53] Speaker 01:
Well, it doesn't really come up that much in my experience.

[00:30:57] Speaker 01:
Usually if the handwriting is a big deal, the government usually brings in a handwriting expert if that's the focus of the investigation.

[00:31:07] Speaker 03:
Your Honor, that's consistent with my experience as well, and I think that it's reflective of the fact that this was actually not a big deal in terms of an evidentiary point for the government.

[00:31:18] Speaker 03:
It was just one more thing in the grand scheme of... Okay, unless my colleagues have questions, you've gone a little over.

[00:31:25] Speaker 01:
Thank you, Your Honor.

[00:31:26] Speaker 01:
All right, thank you.

[00:31:35] Speaker 00:
I'll jump back in on the Brady issue.

[00:31:37] Speaker 00:
At bottom, what we're dealing with is another plausible suspect that was suppressed, just to tie a knot on Judge Koh's question.

[00:31:47] Speaker 00:
This was suppressed information.

[00:31:48] Speaker 00:
There were three reports that didn't disclose this information.

[00:31:51] Speaker 00:
Agent Williams was there for at least a number of these interviews, knew the contrary white male identification, didn't disclose that.

[00:31:59] Speaker 00:
So it's been suppressed information.

[00:32:01] Speaker 00:
And it's pretty critical suppressed information because

[00:32:06] Speaker 00:
Really, the government failed to present evidence as to whether these licenses were photocopied or stored or whether the person who got the driver's license from Elsa's was the only one who knew would have known that information.

[00:32:19] Speaker 00:
So that we didn't have that identification that excluded Mr. McGee, who is a black man.

[00:32:25] Speaker 02:
But in closing, Mr. McGee's counsel argued that he couldn't have taken Ms.

[00:32:31] Speaker 02:
Elsa's license and suggested that a white employee, I mean, he got to make the argument, right?

[00:32:37] Speaker 00:
Got to make a version of the argument, but one that was deprived of all of the buildup, all of the investigation that we could have done had we known the contrary identification.

[00:32:47] Speaker 01:
Well, maybe you could have established ... I'm just looking at the video thing here that shows the transaction.

[00:32:55] Speaker 01:
Maybe you could have established that your client was involved in a conspiracy with some other white guy to steal money orders, but it's still pretty

[00:33:06] Speaker 01:
This video, I mean, the best thing would be, may look like me, but not me, but it looks like your client in the video.

[00:33:16] Speaker 00:
Understood, but the basic prejudice that we get from the Brady violation is we could have explored these alternative third-party culpability defenses in substantially more detail after we get this information, but we get it too late to do anything with.

[00:33:29] Speaker 00:
So we need, at a minimum, mistrial.

[00:33:31] Speaker 00:
But given the misleading reports that we've been provided, we think dismissal would also be an appropriate action.

[00:33:35] Speaker 01:
Don't we ultimately decide if it would have made a different result in the trial, right?

[00:33:39] Speaker 00:
The prejudice analysis is a little bit different than a harmless error analysis, but it's effectively were we deprived of some opportunity at trial, and we were.

[00:33:49] Speaker 00:
We were deprived of an opportunity to present an opening statement that highlighted these distinctions, et cetera.

[00:33:55] Speaker 00:
Seeing that I'm close to ... Oh, I'm actually over time.

[00:33:58] Speaker 01:
You're over.

[00:33:59] Speaker 00:
Yep.

[00:33:59] Speaker 00:
Thank you, Your Honor.

[00:34:00] Speaker 01:
Call it.

[00:34:01] Speaker 01:
Thank you.

[00:34:01] Speaker 01:
All right.

[00:34:02] Speaker 01:
This matter will be submitted.

[00:34:04] Speaker 01:
Thank you both for your argument in this matter.

[00:34:05] Speaker 01:
The court's just going to take a very brief recess.

[00:34:08] Speaker 01:
We'll be in recess for 10 minutes and then we'll come and hear the last case.

[00:34:11] Speaker 01:
Thank you.