[00:00:00] Speaker 00:
May proceed.

[00:00:02] Speaker 00:
Good morning, Your Highness.

[00:00:02] Speaker 00:
May it please the Court.

[00:00:04] Speaker 00:
Gene Vorobiev on behalf of Mr. McAnulty.

[00:00:08] Speaker 00:
The sole issue before the Court deals with evidence of my client's participation in the robbery in 2000 when he was 17 years old.

[00:00:21] Speaker 00:
The District Court had earlier excluded the fact that he was convicted of that crime under Rule 403.

[00:00:28] Speaker 00:
But then it essentially allowed the government to question my client's brother, a witness for the defense, about my client's participation in that same crime with his brother.

[00:00:43] Speaker 00:
So, in fact, what the jury ended up learning was not even the conviction, but just the fact that it came off as an uncharged act.

[00:00:50] Speaker 04:
Was there any evidence that the

[00:00:53] Speaker 04:
with respect to that issue that the prosecution introduced that you had not already introduced on the direct.

[00:01:02] Speaker 00:
Your honor, could you please re-ask that question?

[00:01:04] Speaker 00:
I'm sorry.

[00:01:05] Speaker 04:
I mean, the issue is whether or not by fronting the issue in the direct examination, you have waived the objection to the Eliminate Ruling.

[00:01:13] Speaker 04:
So my question is, is there anything the prosecution added, any information it added on cross that had not already been fronted in the direct examination?

[00:01:24] Speaker 00:
Your honor, the answer to your question is I don't think the prosecution added anything beyond what was

[00:01:29] Speaker 00:
stated on the direct exam, but I would like to respectfully push back a little on the idea that this was some kind of an inliminate ruling.

[00:01:37] Speaker 00:
This was a mid-trial ruling right before my client's brother took the stand.

[00:01:42] Speaker 00:
The parties litigated the objection.

[00:01:44] Speaker 00:
The district court was very clear in the ruling, it's coming in over your objection.

[00:01:49] Speaker 00:
The government was very clear that it wants to introduce the evidence of my client's participation in that robbery as evidence of bias.

[00:01:58] Speaker 00:
So I just, I guess I would have to disagree with the characterization of that as a limine.

[00:02:03] Speaker 04:
I know, but also one of the things that Oler says is that, you know, the government might decide as the trial plays out and sees how the examination goes, we may not need to even get into this issue.

[00:02:16] Speaker 04:
I mean, they may not use it.

[00:02:18] Speaker 04:
And that's one of the reasons why Oler adopted the rule that it did, that if you, you know, get ahead of the government and introduce it yourself, you forfeit the objection.

[00:02:28] Speaker 00:
here and i think the ways of court just frame it i think i don't gets to my position why i think or doesn't apply all our debt was an eliminate ruling course there is a reasonable chance that between the times there is a pretrial ruling is a time actually get to the actual introduction of the evidence in question somebody might change their mind that's not our case i just think on this record it would be a stretch to say that there was some chance that somebody's mind we're going to be changed

[00:02:57] Speaker 00:
I mean, this happened right before the witness took the stand.

[00:03:00] Speaker 04:
But if he came across in the direct as really unbelievable and the testimony was a disaster, the government might decide not to load up the issue for appeal and let it go on cross-examination.

[00:03:14] Speaker 04:
But by fronting it, you take that off the table, and that is one of the things that Oehler emphasized.

[00:03:21] Speaker 00:
Well, I think it might be at best a secondary factor.

[00:03:23] Speaker 00:
I think the primary nature of the rationale on Oehler

[00:03:26] Speaker 00:
was that it was a pretrial ruling.

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I really, and I think if you look at how other courts looked at it, I think most have focused on the fact that it was an in limine pretrial ruling.

[00:03:37] Speaker 00:
It's not, I think it would be over reading or to say that every time you say it first, regardless of any other circumstances you forfeit.

[00:03:46] Speaker 00:
Because in this case, for example, my client's lawyer did everything he possibly could to say this is over my objection.

[00:03:54] Speaker 00:
He litigated it.

[00:03:54] Speaker 00:
He stated his objection clearly.

[00:03:56] Speaker 00:
He got the ruling.

[00:03:57] Speaker 00:
It was right before the witness took the stand.

[00:04:01] Speaker 00:
In fact, he said this explicitly.

[00:04:04] Speaker 00:
He said, I'm going to ask this question because I'm being forced to.

[00:04:08] Speaker 00:
To say that he's front in it, I would urge the court not to do that.

[00:04:12] Speaker 00:
I think it would be far beyond what all are contemplating.

[00:04:16] Speaker 03:
Do you have any authority or any case you can cite that supports your position?

[00:04:20] Speaker 00:
nothing from this from this circuit directly there was one search circuit case that i cited which question applicability of or outside uh... the context of rule six or nine impeachment was a prior conviction and i think there is a point in that line of thought because one of the other rationales in or was that you know by the defendant takes a stand the government has a right to cross-examine uh...

[00:04:49] Speaker 00:
including with a proof of prior conviction.

[00:04:52] Speaker 00:
We don't even have that because here, it's not my client that's being cross-examined with a proof of a prior conviction.

[00:05:03] Speaker 00:
Here, the fact that the jury learns of it is a byproduct of the fact that another witness is being cross-examined.

[00:05:09] Speaker 00:
The court excluded the conviction as evidence of impeachment against my client.

[00:05:14] Speaker 03:
Well, let me ask you this.

[00:05:15] Speaker 03:
Let's assume that you were right, or there was a question about the application of OLR.

[00:05:21] Speaker 03:
What about the harmless error rule?

[00:05:24] Speaker 03:
Wasn't there overwhelming evidence of your client's participation?

[00:05:28] Speaker 03:
In this case, for what he was convicted, there were controlled buys.

[00:05:32] Speaker 03:
There were all sorts of evidence of drug dealings found when his apartment was searched.

[00:05:41] Speaker 03:
Don't you have, even without this, in other words, testimony about his participation in a prior robbery,

[00:05:48] Speaker 03:
Wasn't there a lot of evidence against your client?

[00:05:52] Speaker 00:
I would characterize the government's case as relatively strong circumstantial evidence, but by no means overwhelming.

[00:06:00] Speaker 00:
First of all, there is nothing directly connecting my client to the drugs.

[00:06:05] Speaker 00:
No prints on the packaging, no DNA.

[00:06:08] Speaker 00:
They didn't even take it.

[00:06:10] Speaker 00:
The buy money was not found in his possession.

[00:06:13] Speaker 00:
There is no video recording.

[00:06:15] Speaker 00:
of any of the sales.

[00:06:16] Speaker 00:
He doesn't make a cremating admission and say, oh, I did it.

[00:06:18] Speaker 00:
So I mean, those are the kind of types of evidence where you say, well, it's conclusive.

[00:06:23] Speaker 00:
So I think it's not conclusive.

[00:06:26] Speaker 00:
There is circumstantial evidence connecting him to the sale.

[00:06:29] Speaker 00:
But I think the government case still relies in a fairly significant manner on a testimony of confidential informant who had significant credibility issues.

[00:06:40] Speaker 00:
And obviously, that's the jury's call.

[00:06:42] Speaker 00:
But my point is only that

[00:06:45] Speaker 00:
if this error had not happened, I mean, there is a reasonable chance the jury might say, well, you know, the government's case is okay, but not overwhelming, and they're relying on some shaky foundation, and what my client presented as defense is not inherently inconsistent with the trial evidence.

[00:07:03] Speaker 00:
I mean, the jury could buy it or not buy it.

[00:07:06] Speaker 00:
I mean, that's fine, but once you get in to evidence that

[00:07:12] Speaker 00:
In 2000, as far as the jury knows, he got away with it.

[00:07:15] Speaker 00:
I mean, he wasn't charged with that robbery.

[00:07:17] Speaker 00:
They said conviction for James McAnulty, but my client participated.

[00:07:21] Speaker 00:
So for all they know, it's an uncharged act.

[00:07:24] Speaker 00:
That tends to, for lack of a more official term, dirty up my client, just as a person of bad character.

[00:07:31] Speaker 00:
I mean, robbery has a connotation with a lay person.

[00:07:35] Speaker 00:
You know, it's a violent crime.

[00:07:38] Speaker 00:
It tends to portray me in a very bad light.

[00:07:40] Speaker 00:
And I think it could make a difference.

[00:07:42] Speaker 00:
The harmless air standard is not absolute certainty.

[00:07:45] Speaker 00:
The burden is on the government to show that it's more probable than not that the air didn't affect the outcome of the trial.

[00:07:54] Speaker 04:
Did the fact that it was a robbery come out in either the direct or the cross?

[00:07:59] Speaker 00:
I believe so, Your Honor.

[00:08:03] Speaker 04:
I'm looking and in the direct it says now in 2001 sir is it true that you were convicted of a crime and your brother was a participant yes it is been over 20 years yes sir and then it moves on and then in the cross

[00:08:18] Speaker 04:
It's, there came a time on one occasion running around together and ended up getting convicted of a felony, correct?

[00:08:26] Speaker 04:
That's correct.

[00:08:27] Speaker 04:
And that was in 2001, 2001, or 2002.

[00:08:30] Speaker 04:
It was a long time ago.

[00:08:31] Speaker 04:
And for how long were you incarcerated thereafter?

[00:08:34] Speaker 04:
So it doesn't look like even the fact that the robbery came out.

[00:08:41] Speaker 00:
I have to be honest with you, I thought it did, but I will have to double check.

[00:08:45] Speaker 00:
That's why I was reluctant to discern my answer.

[00:08:48] Speaker 04:
I mean, but that's the other thing that's odd about this.

[00:08:50] Speaker 04:
Normally, in assessing harmless error, we would look at, well, how did the government actually bring it in?

[00:08:56] Speaker 04:
And it was something about the details of how they brought it in, makes it harmful or harmless.

[00:09:04] Speaker 04:
But here we're assessing, you know,

[00:09:06] Speaker 04:
his own attorney's conduct in bringing it in, because he decided after losing the Eliminator to do it himself.

[00:09:15] Speaker 00:
I would only say to that, that in many, for example, in California, this is a very common practice, and I suspect that it is also so in many other states.

[00:09:24] Speaker 00:
When you lose an evidential ruling, this is not Eliminator, but you lose an evidential ruling, you made your record.

[00:09:31] Speaker 00:
Sometimes, basically, you pray with the boil.

[00:09:33] Speaker 00:
Because, frankly, the government is entitled to impeach a credibility witness with a prior conviction, but I don't think it's entitled to an additional impression that the defendant tried to hide it by waiting until the government to mention it on the cross.

[00:09:47] Speaker 00:
I think that's a separate issue.

[00:09:49] Speaker 00:
So I don't think there is anything inherently unreasonable for a defense attorney to make the record as clear as you can, timely.

[00:09:58] Speaker 00:
They say, look, under protest, I'm doing this.

[00:10:00] Speaker 00:
I mean, I can't honestly think what my colleague would have done differently to preserve the record.

[00:10:07] Speaker 00:
And I see that my time has run out.

[00:10:10] Speaker 00:
Does the court have any other questions?

[00:10:15] Speaker 02:
Thank you, counsel.

[00:10:40] Speaker 01:
Good morning, Your Honors.

[00:10:42] Speaker 01:
May it please the Court?

[00:10:43] Speaker 01:
I'm Assistant United States Attorney Cody Turback on behalf of the United States.

[00:10:51] Speaker 01:
To kind of touch off where you just left off, I think Your Honor was completely right.

[00:10:56] Speaker 01:
The robbery did not come out.

[00:10:57] Speaker 04:
So the fact that it was a robbery, it was just that there was a conviction, the conviction involved something with the brother.

[00:11:03] Speaker 04:
Yes, Your Honor.

[00:11:04] Speaker 04:
But not that it was robbery.

[00:11:05] Speaker 01:
Yes, Your Honor.

[00:11:06] Speaker 01:
So the excerpt that you read, both from direct and from cross, was the extent in the week-long trial of evidence that came out regarding the appellant's involvement in this robbery, but the fact that it was a robbery not coming out.

[00:11:23] Speaker 01:
It's about 11 lines of transcript,

[00:11:26] Speaker 01:
a week-long trial, and the jury wasn't left with any impression that it was a robbery, a violent crime, did not have that information.

[00:11:36] Speaker 01:
And specifically, it was left out because that information was meant to probe the bias of the appellant's brother, James.

[00:11:45] Speaker 01:
And because of that, that's exactly what the court instructed the jury on with how to deal with that bias evidence and the prior conviction itself.

[00:11:55] Speaker 01:
I'd also like to talk briefly about the standard of review, given that this is a waiver case.

[00:12:03] Speaker 01:
This court in the Ninth Circuit opinion for Oehler, before it went up to the Supreme Court, held where the defendant waives his right to appeal the district court's preliminary ruling, the court need not decide whether the district court erred.

[00:12:19] Speaker 01:
Of course, that was affirmed by the U.S.

[00:12:21] Speaker 01:
Supreme Court, and then in cases that have been cited by this court afterwards, that's exactly how this court has treated it.

[00:12:29] Speaker 01:
It's been decided that there was a waiver, and then the court did not get to the merits.

[00:12:35] Speaker 01:
In one of the cases, I think it was United States v. Taylor that was included in the supplement, the court didn't even address the argument and merely put in a footnote, this is waived C. Oehler.

[00:12:47] Speaker 01:
So in other words, regardless of whether the limited evidence of James McAnulty's conviction and the appellant's participation should have been admitted, the appellant does not have a right to appeal that now in this case.

[00:13:05] Speaker 01:
And related to that, this court has applied the waiver principle in non-609 cases before.

[00:13:12] Speaker 01:
This principle isn't limited to just a prior conviction being used to impeach a defendant who chose to take the stand.

[00:13:20] Speaker 01:
This has been applied in 404 cases.

[00:13:24] Speaker 01:
It's been applied in 401 and 403 cases.

[00:13:27] Speaker 01:
The one case, the seminal case that I had included in the 28J supplement was Bowoto.

[00:13:34] Speaker 01:
In that one, it was 401 and 403 evidence.

[00:13:39] Speaker 01:
There's a little bit of a factual distinction because that evidence was originally brought out before the court in opening argument, but this court nonetheless said, if you, the party who introduces the evidence,

[00:13:52] Speaker 01:
introduced that first preemptively to take the sting out, then you do not get to appeal whether or not that was proper to begin with.

[00:14:01] Speaker 01:
You were the party that introduced it.

[00:14:03] Speaker 01:
You were the party that has to live with that decision at the end of the day.

[00:14:16] Speaker 01:
There's also some argument from the appellant that this

[00:14:20] Speaker 01:
order from the court was somehow not an inliminate order.

[00:14:25] Speaker 01:
This is a textbook inliminate order where one of the parties indicated that they were going to put on a witness that hadn't been priorly noticed.

[00:14:36] Speaker 01:
The government, in response, said, hey, we intend to impeach, but wanted to bring it up with the court first.

[00:14:42] Speaker 01:
The court gave a preliminary ruling with the expectation that the government was going to elicit that information.

[00:14:49] Speaker 01:
the parties discussed it at length with the court outside of the jury's presence.

[00:14:54] Speaker 01:
There was that preliminary order that was put on, and then the appellant preemptively put that on.

[00:15:03] Speaker 01:
The one thing that was stated in the appellant's argument a few minutes ago was that the decision in Oehler was a pretrial ruling.

[00:15:16] Speaker 01:
If you go back and look at the

[00:15:18] Speaker 01:
briefs and the opinions from Oehler, both the Ninth Circuit and the Supreme Court, briefs and opinions.

[00:15:26] Speaker 01:
The district court issued its ruling on the first day of trial.

[00:15:29] Speaker 01:
That was, I believe, a Wednesday.

[00:15:32] Speaker 01:
It's not exactly clear when the defendant testified in relation to that, but the jury returned a guilty verdict on Monday.

[00:15:38] Speaker 01:
So that ruling was within a day or two.

[00:15:40] Speaker 01:
This wasn't months in advance of trial where there had been

[00:15:44] Speaker 01:
extensive litigation and then a ruling from the court.

[00:15:48] Speaker 01:
And it's the government's position that even if that were the case here or in Oehler, that the waiver principle would still apply.

[00:15:55] Speaker 01:
Your Honor was right in pointing out that it does take that option away from both the court and the government to come off of that speculative order to begin with.

[00:16:06] Speaker 01:
What often happens at trial is you'll have a witness who testifies somewhat differently than what was expected, and it's not worth putting on that evidence to raise the appellate point.

[00:16:17] Speaker 01:
So I think that fits squarely here with Oehler.

[00:16:20] Speaker 01:
And then unless your honors had any additional questions, I don't have any more comments.

[00:16:30] Speaker 02:
Thank you, counsel.

[00:16:33] Speaker 02:
Do you want a minute for rebuttal?

[00:16:41] Speaker 00:
I have two points to make.

[00:16:43] Speaker 00:
One, even if the jury didn't know this was a robbery versus a felony,

[00:16:48] Speaker 00:
The district court felt strongly enough about this prejudicial effect to exclude it as a conviction.

[00:16:53] Speaker 00:
To then allow it to come in as evidence of essentially an uncharged act is just, I think it's irrational.

[00:17:02] Speaker 00:
Because if you think under 403, that's too prejudicial, the fact of the conviction, I don't see how participation, which comes off as an uncharged act, is any less prejudicial.

[00:17:14] Speaker 00:
And for the reason stated in the briefing,

[00:17:17] Speaker 00:
The probative value as to James seemed even smaller as impeachment value against my client because they're brothers.

[00:17:24] Speaker 00:
There's evidence of extensional familiar relationship.

[00:17:27] Speaker 00:
So any possible inference of bias would be minor compared to that evidence.

[00:17:34] Speaker 00:
And my second point would be on the nature of the ruling here.

[00:17:37] Speaker 00:
I mean, the question is not necessarily how many days have passed between ruling and testimony.

[00:17:43] Speaker 00:
The fact is that when you're dealing with eliminate rulings, usually it's couched as preliminary.

[00:17:49] Speaker 00:
There is some contemplation that would be changed at a later time.

[00:17:53] Speaker 00:
I respectfully disagree with counsels.

[00:17:55] Speaker 00:
This ruling was as clear as a bell.

[00:17:57] Speaker 00:
It was coming in.

[00:17:59] Speaker 00:
I can't really see what else my colleague could have done to preserve the record anymore.

[00:18:03] Speaker 00:
It would be frankly unfair to say that, well, he waived the argument anyway, after he litigated it extensively.

[00:18:09] Speaker 00:
Thank you.

[00:18:11] Speaker 02:
Thank you, counsel.

[00:18:12] Speaker 02:
The United States versus McNulty is submitted and we will take