[00:00:04] Speaker 00:
Each side will have 15 minutes for argument, and you will keep your own time.

[00:00:10] Speaker 00:
Ms.

[00:00:10] Speaker 00:
Hughes, whenever you're ready.

[00:00:12] Speaker 04:
Good morning, and may it please the court, Christy Hughes, on behalf of Mr. Manuelito.

[00:00:16] Speaker 04:
I'm going to attempt to reserve three minutes for rebuttal, but I'll keep my time.

[00:00:21] Speaker 04:
Your Honor, the 8034 hearsay exception for statements made for medical diagnosis or treatment didn't apply to essay statements at the ER.

[00:00:30] Speaker 04:
This court in Coutts-Watawa and other cases has explained that what underlies this hearsay exception is the incentive to be truthful when seeking medical treatment.

[00:00:40] Speaker 04:
And so what's determinative is the declarant's view of the purpose in making the statement.

[00:00:46] Speaker 04:
And here, SA's purpose in making the statements at the ER was to document her injuries and preserve evidence for law enforcement.

[00:00:53] Speaker 01:
But that was not her only purpose.

[00:00:56] Speaker 01:
The medical professionals testified and it seems to me that the testimony falls pretty much within the case of US versus Latu where the medical professionals talked about why they wanted this information to, and in fact it was used in this case to decide on what tests to do and how to, what kind of treatment, mental health or physical.

[00:01:26] Speaker 01:
was required.

[00:01:28] Speaker 01:
So isn't it still permissible, even if there's a dual purpose, so long as one of the purposes is actually to receive accurate medical diagnosis and treatment?

[00:01:41] Speaker 04:
Well, I have two responses, Your Honor.

[00:01:43] Speaker 04:
First is the government has relied on Lukashov and on the Memdisco and Nez to argue that there is a dual purpose analysis to apply.

[00:01:51] Speaker 04:
And

[00:01:52] Speaker 04:
If you look at Lukashov and if you look at Nez, there was no dual-purpose analysis there.

[00:01:57] Speaker 01:
Well, that is actually not entirely my question, because we do have cases that say that context can be determined not just from one piece of evidence, but also in particular from what the medical professionals did and why they did it.

[00:02:14] Speaker 01:
I mean, this person went through physical testing as a result of all of this.

[00:02:20] Speaker 01:
It was not just, I'm here to

[00:02:22] Speaker 01:
Blame someone.

[00:02:24] Speaker 04:
Well, again, two responses, Your Honor.

[00:02:26] Speaker 04:
I think part of that physical testing was to document injury.

[00:02:29] Speaker 04:
She got the CT scan to see, for instance, if she had bleeding or swelling on her brain to document whether there was a concussion.

[00:02:35] Speaker 04:
But to Your Honor's first point, this court has said that the medical professional's view of the encounter is informative.

[00:02:41] Speaker 04:
But what it stressed, and Coots-Watwats stressed it twice is,

[00:02:45] Speaker 04:
You look at that context and you make an inference from that, as long as there isn't any evidence in the record that negates that inference that it was for a medical purpose.

[00:02:52] Speaker 00:
So let me ask you this.

[00:02:53] Speaker 00:
Doesn't the fact that SA testified to the same information that was in the medical records and was cross-examined about the credibility of those statements suggest that any error in admitting them was harmless?

[00:03:05] Speaker 04:
No, Your Honor.

[00:03:06] Speaker 04:
So the entire defense hinged on attacking her credibility.

[00:03:10] Speaker 04:
And so Mr. Manuelito had pointed out

[00:03:12] Speaker 04:
all of these discrepancies in Essay's timeline of the events.

[00:03:17] Speaker 04:
Her mother said she showed up on Monday.

[00:03:19] Speaker 04:
Essay said she wasn't there on Monday.

[00:03:21] Speaker 04:
Her mother pointed out that when she came on Monday to get clothes for the kids, she saw bruises on Essay's face already.

[00:03:27] Speaker 04:
But Essay said the assault happened Monday afternoon, Monday evening.

[00:03:31] Speaker 04:
He pointed out that she could have sustained these injuries other ways by jumping into a fight, et cetera.

[00:03:39] Speaker 04:
Keep in mind that the three assault charges were only for the events that occurred on Monday.

[00:03:43] Speaker 04:
And so when this evidence comes in, the testimony from the nurse and the doctor and the medical record, and it says right on there multiple times, she says that she was strangled on Monday, and this assault occurred on Monday, that bolstered her credibility.

[00:03:58] Speaker 04:
The only real evidence of the strangulation, and again, one of the assault charges was specifically for strangulation, the evidence was because

[00:04:07] Speaker 04:
there wasn't really physical evidence of strangulation.

[00:04:09] Speaker 04:
So one of the doctors said, or I'm sorry, the doctor said the popped blood vessels were consistent with, but it was also consistent with blunt force trauma.

[00:04:16] Speaker 04:
So her testimony was really what supported that strangulation charge.

[00:04:20] Speaker 04:
And when she is making those statements to the nurse and the doctor, and then they're essentially relying on those statements, repeating them in court, the exhibit comes in, that bolsters her credibility, which was the entire defense was on attacking that.

[00:04:36] Speaker 04:
I want to point the court to the numerous instances in the record, because we were talking a little bit about the dual purpose.

[00:04:43] Speaker 04:
And so in Coutts-Wattua, again, the court says, if there's no evidence otherwise, then you can rely on the medical provider's view of this.

[00:04:52] Speaker 01:
I can't hear.

[00:04:53] Speaker 01:
Counsel, there certainly are cases in other circuits and in various states recognizing a dual purpose, that it doesn't destroy the

[00:05:04] Speaker 01:
admissibility of evidence of this kind.

[00:05:08] Speaker 01:
And I agree with you that our circuit hasn't weighed in on that.

[00:05:12] Speaker 01:
But I'm aware of very few cases going the other way.

[00:05:19] Speaker 01:
So should our court adopt the view that is prevalent elsewhere and say that a dual purpose is still one purpose being for medical treatment and diagnosis?

[00:05:35] Speaker 04:
No, Your Honor.

[00:05:36] Speaker 04:
I don't think the court should.

[00:05:37] Speaker 04:
I think it should look at the declarant's view of the purpose in making those statements.

[00:05:41] Speaker 01:
Right.

[00:05:42] Speaker 01:
And if the person has two ideas in mind and one of them is medical treatment, why doesn't that suffice?

[00:05:49] Speaker 01:
I guess that's what I'm getting at.

[00:05:50] Speaker 04:
Well, I don't think this is the case to reach out and make that ruling because here the evidence is clear that that was not

[00:05:57] Speaker 04:
even part of her purpose.

[00:05:59] Speaker 04:
She didn't go to the emergency room Monday, Tuesday, Wednesday, Thursday, even though she had a number of family members at her house.

[00:06:06] Speaker 04:
The law enforcement officers offered her an ambulance.

[00:06:08] Speaker 04:
She didn't go.

[00:06:09] Speaker 04:
She went as she testified on cross and as exhibit 22 says, she went when the FBI requested her to go for documentation.

[00:06:17] Speaker 04:
And then while she's there, she has Dr. Young asking her to sign a release and SA did sign a release.

[00:06:22] Speaker 04:
For just to release the records to the FBI that's a five year eight forty eight doctor young is noting that she gives copies of everything all of her test results which were for documentation and to preserve evidence of the injuries that we're going to disappear.

[00:06:35] Speaker 04:
She gives copies of those to essay for the prosecutor in the court hearing.

[00:06:39] Speaker 04:
And so when SA is there, all of this is informing her view of why she's there.

[00:06:44] Speaker 04:
She's there to get documentation of her injuries.

[00:06:46] Speaker 04:
And the forensic nurse, I think, backs all that up.

[00:06:49] Speaker 04:
Unlike a normal ER visit, the forensic nurse is measuring and photographing all of her bruises, all of her scrapes, and she testifies that she does that.

[00:06:58] Speaker 01:
But they also say that knowing the identity of the perpetrator is important for both figuring out if the patient is going to be safe and also for mental health treatment.

[00:07:09] Speaker 01:
Correct?

[00:07:10] Speaker 01:
So, I mean, there's a reason why medical professionals want to know who did whatever they did to you.

[00:07:17] Speaker 04:
And we're not quibbling with that particular piece of information.

[00:07:21] Speaker 04:
I think that if this court finds that essay statements were made for medical treatment or diagnosis, then Mr. Mammolito's name comes in.

[00:07:29] Speaker 04:
It's not that piece of information wasn't for medical treatment.

[00:07:31] Speaker 04:
It's that all, oops, excuse me, it's that all of these statements made at the ER were made to document her injuries.

[00:07:37] Speaker 01:
And you think the fact that she got pain medication and was told to follow up didn't mean that she wanted the pain medication?

[00:07:45] Speaker 01:
She just went there for only one purpose?

[00:07:50] Speaker 04:
I believe so.

[00:07:51] Speaker 04:
Again, we have to look at what happened while she was there.

[00:07:53] Speaker 04:
The nurse and the doctor are telling her, we're giving you copies of this.

[00:07:56] Speaker 04:
It says for the court and the prosecutor.

[00:07:58] Speaker 04:
It notes her next court date.

[00:08:00] Speaker 04:
It notes the arresting officer.

[00:08:02] Speaker 04:
All of this is with an eye towards future prosecution.

[00:08:05] Speaker 04:
And she knows that because, in fact, she went there to document her injuries at law enforcement's request.

[00:08:10] Speaker 04:
And that's what Nurse Lennox testified to, is that I use my training to document, she said, so that someone could tell in the future, like in a trial, what the injuries looked like that day.

[00:08:20] Speaker 04:
So this is evidence preservation.

[00:08:22] Speaker 04:
And SA is aware of that.

[00:08:24] Speaker 01:
So if she had gone on her own on day one, what would have been different about these notes?

[00:08:31] Speaker 01:
Presumably, if she had said, this person beat me up and caused all these injuries, wouldn't have the results of the discussions with the medical professionals have been the same?

[00:08:47] Speaker 04:
I think we would have a very different case, Your Honor.

[00:08:49] Speaker 04:
I think combined with waiting until the FBI asks her to go for documentation is a major part of this.

[00:08:56] Speaker 04:
all of the indications in the ER records.

[00:08:59] Speaker 04:
I mean, it's right at the top, right after they triage her.

[00:09:02] Speaker 04:
This is the first reason they give is why she's there.

[00:09:04] Speaker 04:
She's there to come into the FBI for documentation.

[00:09:07] Speaker 04:
So when they're talking to her, the medical professionals know that.

[00:09:10] Speaker 04:
They know that they're supposed to be documenting her injuries.

[00:09:13] Speaker 04:
And she knows that she's there to get her injuries documented as well and to preserve them.

[00:09:17] Speaker 04:
So I think it would be a different case if she had gone the first day on her own.

[00:09:25] Speaker 04:
I want to turn to the, unless your honors have further questions on the hearsay exception, I want to turn to the supervised release condition that barred Mr. Manuelito from contacting his daughter.

[00:09:35] Speaker 01:
I have a question about that as well.

[00:09:38] Speaker 01:
The court clearly did not follow the procedure set out on Wolf Child, but I wonder whether that is because your client affirmatively waived that argument before sentencing occurred.

[00:09:52] Speaker 01:
I mean, at some point he said essentially, I don't have custody, but I have some parental rights.

[00:09:58] Speaker 01:
And then he said, I relinquish my parental rights and essentially said, I hope someday in the future that, you know, we can reconnect.

[00:10:09] Speaker 01:
But given that, didn't he waive this issue and therefore the court didn't need to address it in the manner that Wolf Child prescribes?

[00:10:19] Speaker 04:
I disagree, Your Honor.

[00:10:20] Speaker 04:
I think given the stringent protections that Wolf caught that are in Wolf Child, the district court had a duty to clarify as part of its individualized review of that particular relationship, a duty to clarify what Mr. Mammolito said.

[00:10:33] Speaker 04:
Even the prosecutor expressed confusion because it didn't line up with the record.

[00:10:37] Speaker 04:
SA had testified at trial that the whole reason she and Mr. Mammolito had reacquainted in December 2017 was because he had been released from prison and he wanted to work on his relationship with his daughter and get reacquainted.

[00:10:50] Speaker 04:
And he had been.

[00:10:50] Speaker 04:
He'd been staying with them.

[00:10:51] Speaker 04:
He went to her recital or a concert a few days before this incident.

[00:10:55] Speaker 01:
Yes, but none of that takes away from what he actually said in court, which is very clearly, I relinquish my parental rights.

[00:11:07] Speaker 01:
sort of crystal clear.

[00:11:08] Speaker 01:
And indeed, the prosecutor was surprised, but there was no backtracking when the prosecutor asked for clarification.

[00:11:17] Speaker 04:
I think with respect to Mr. Mammolito, I think he's not well-educated.

[00:11:22] Speaker 04:
I think he used the incorrect word.

[00:11:24] Speaker 04:
I think he was trying to say, I do not relinquish my parental rights.

[00:11:28] Speaker 00:
So I'll tell you that I have more of a question than my colleague

[00:11:33] Speaker 00:
Judge Graber about the clarity of the statement.

[00:11:36] Speaker 00:
And so I want to ask you about Wolf Child, which we held that the defendant had a substantial liberty interest in his relationship with his child.

[00:11:46] Speaker 00:
Is this a per se rule?

[00:11:49] Speaker 04:
For a parent-child relationship?

[00:11:50] Speaker 04:
Yes.

[00:11:51] Speaker 04:
I believe it is, Your Honor.

[00:11:52] Speaker 04:
Wolf Child, I know the government has brought up that this wasn't a close relationship that Mr. Manuelito had, but there's nothing in Wolf Child that gets into the fact that

[00:12:01] Speaker 04:
The type of relationship is what gives you this due process.

[00:12:04] Speaker 04:
Right.

[00:12:05] Speaker 04:
And in fact, and not believe there's the same procedural requirements that are there and that the this court said

[00:12:11] Speaker 04:
We don't even know the type of relationship.

[00:12:13] Speaker 04:
It was an intimate life partner relationship.

[00:12:15] Speaker 04:
They said, we don't know if this is a damaging relationship like the district court claims or a supportive relationship like the defendant claims.

[00:12:23] Speaker 04:
That's for the district court to determine during its individualized review.

[00:12:26] Speaker 00:
Did the district court engage in any of that discussion either prior to offering Mr. Menolito the opportunity to make his statement or after when the court imposed the condition?

[00:12:39] Speaker 04:
No, there was no mention of his, other than imposing the condition and referencing this restraining order, there was no reference about his relationship with his daughter.

[00:12:49] Speaker 00:
And did the government in this case ever claim that the statement that was made by Mr. Manuelito constituted a waiver?

[00:13:00] Speaker 04:
No, Your Honor, they did not.

[00:13:01] Speaker 04:
In fact, they're arguing that it's a forfeiture and the plain error review should apply, right?

[00:13:07] Speaker 04:
Correct.

[00:13:08] Speaker 04:
Nor did they make any comment about that in the district court.

[00:13:11] Speaker 04:
The prosecutor asked to clarify it.

[00:13:13] Speaker 04:
And I think that makes sense.

[00:13:14] Speaker 04:
In the PSR at PSR 20, Mr. Manuelito had told the probation officer that his release plan was to get back into the community and work to support his daughter.

[00:13:22] Speaker 05:
Did he have counsel present at the time?

[00:13:24] Speaker 05:
He did, Your Honor.

[00:13:25] Speaker 05:
And does that counsel have any obligation to ensure that his client is making

[00:13:32] Speaker 05:
you know, correct statements?

[00:13:33] Speaker 05:
Does he have to say, hey, wait a second.

[00:13:35] Speaker 05:
I'm not sure we understand here.

[00:13:36] Speaker 05:
Your Honor, may I please have a moment to confer with my client?

[00:13:41] Speaker 05:
Possibly.

[00:13:42] Speaker 04:
I wasn't trial counsel.

[00:13:45] Speaker 04:
I don't know that it affects this argument, given the district court's affirmative duty to inquire about the relationship.

[00:13:52] Speaker 04:
Was there anything stated by his counsel?

[00:13:56] Speaker 04:
No, that just wasn't responded to.

[00:13:57] Speaker 04:
I think part of the problem was Mr. Manuelito had a different attorney for the revocation.

[00:14:02] Speaker 04:
And if you look at the sentencing transcript at the end, the district court asks whether they're going to go forward, which violation Mr. Manuelito has admitted to because there were a number on the revocation.

[00:14:13] Speaker 00:
At the end of the day, what you're saying is that there was no objection made either by Mr. Manuelito or his counsel who represented him.

[00:14:20] Speaker 00:
And that sort of goes to, and I think there's agreement here that the standard of review for us on appeal is a plain error standard.

[00:14:27] Speaker 00:
Is that right?

[00:14:28] Speaker 00:
Yes.

[00:14:28] Speaker 00:
Thank you, Your Honor.

[00:14:29] Speaker 00:
Yes.

[00:14:29] Speaker 00:
You wanted to reserve three minutes.

[00:14:31] Speaker 00:
You're under a minute now.

[00:14:32] Speaker 00:
We'll put two minutes on the clock for you for rebuttal.

[00:14:34] Speaker 00:
Thank you very much.

[00:14:34] Speaker 00:
Thank you.

[00:14:38] Speaker 00:
Ms.

[00:14:38] Speaker 00:
Clapper.

[00:14:47] Speaker 02:
May it please the court, my name is Monica Clapper and I represent the United States in this appeal.

[00:14:54] Speaker 02:
Given the prior discussion, I'll start with the hearsay issue and then move on to the Wolf Child issue unless the court would like me to do that in reverse.

[00:15:05] Speaker 02:
Starting with the hearsay issue then, there are a couple of things I want to emphasize.

[00:15:11] Speaker 02:
One is what is really in the record factually?

[00:15:16] Speaker 02:
And just as important, what is not in the record factually about the underpinnings of this issue.

[00:15:22] Speaker 02:
And then the second is the context within which this issue is presented to this court.

[00:15:31] Speaker 02:
Factually, the victim in this case, SA, never said that she only went to the ER to have her injuries documented.

[00:15:43] Speaker 02:
She never said

[00:15:45] Speaker 02:
that she only went to the ER because the FBI requested her to.

[00:15:50] Speaker 02:
She never said that she did not have a choice in whether she went to the ER or not.

[00:15:57] Speaker 02:
She never said that she did not believe that she needed medical intervention.

[00:16:03] Speaker 02:
And she never said that she would not have otherwise gotten that medical intervention at some point.

[00:16:13] Speaker 02:
There were some total of six questions asked to her during her period of testimony over two days.

[00:16:25] Speaker 02:
The prosecutor asked her on direct, so did you seek medical attention on that day, that day being Wednesday?

[00:16:33] Speaker 02:
And she said no.

[00:16:35] Speaker 02:
On cross-examination, I want to make sure I get these right, on cross-examination,

[00:16:42] Speaker 02:
The defense counsel asked three questions.

[00:16:47] Speaker 02:
You didn't go to the ER that day?

[00:16:48] Speaker 02:
No.

[00:16:49] Speaker 02:
You went two days later?

[00:16:51] Speaker 02:
Yes.

[00:16:52] Speaker 02:
You went because the FBI requested?

[00:16:54] Speaker 02:
Yes.

[00:16:57] Speaker 02:
On redirect, the United States elicited that she did not go right away because she was afraid, she was ashamed, she was embarrassed.

[00:17:09] Speaker 02:
She testified, sorry,

[00:17:12] Speaker 02:
that it was hard for her to show her face in public because she was beaten.

[00:17:21] Speaker 02:
That's all of the evidence that comes from SA on this issue.

[00:17:26] Speaker 02:
The defense attorney, the defense was in the unique position to elicit more of the evidence that I think they now wish was in the record if that evidence existed.

[00:17:41] Speaker 02:
The government noticed, if the court is okay with this, can I grab my water?

[00:17:47] Speaker 02:
Thank you.

[00:17:54] Speaker 02:
The government noticed that it would seek to admit this evidence under 803 for almost a year before trial.

[00:18:04] Speaker 02:
And of course it provided the medical records within which the statements were contained.

[00:18:11] Speaker 02:
The defense never raised the issue until just moments before the first medical expert was getting on the stand.

[00:18:21] Speaker 02:
So when the very first witness was testifying, that being SA, there had been no objection noticed about these statements.

[00:18:34] Speaker 02:
And certainly the government had no opportunity to elicit more evidence from her on those.

[00:18:41] Speaker 02:
And the defense themselves did not either.

[00:18:45] Speaker 02:
And secondly, the context of this evidence at the trial is important as well.

[00:18:56] Speaker 02:
for a couple of reasons.

[00:18:58] Speaker 02:
First, the evidence that came out through the medical professionals was moderated.

[00:19:03] Speaker 02:
And by that I mean the statements were made by the, testified to by the medical professionals briefly.

[00:19:15] Speaker 02:
They weren't parsed out word by word.

[00:19:19] Speaker 02:
They weren't unduly emphasized.

[00:19:22] Speaker 02:
They were just part of a very tight,

[00:19:26] Speaker 02:
examination of both medical witnesses.

[00:19:32] Speaker 02:
Dr. Young being the first one, she testified to two statements in which, the two brief statements in which SA identified Manuelito and then later towards the end of trial, Nurse Lennox testified to three brief statements that SA made

[00:19:55] Speaker 02:
that included references to Manuelito.

[00:20:00] Speaker 02:
That was it from the medical professionals.

[00:20:06] Speaker 02:
That's part of the context.

[00:20:08] Speaker 02:
The other is there was other evidence admitted identifying Manuelito as her abuser.

[00:20:18] Speaker 02:
Other evidence of her statements, excuse me, made to others identifying

[00:20:25] Speaker 02:
Manuelito as her abuser.

[00:20:28] Speaker 02:
For instance, she made a statement to Housing Authority Security Officer Baja on that Wednesday after the second assault.

[00:20:43] Speaker 02:
She was running to him from her home, where Manuelito still was in the driveway,

[00:20:51] Speaker 02:
and yelling, pointing at Manuelito, saying, he's attacking me.

[00:20:57] Speaker 02:
He's trying to kill me.

[00:20:59] Speaker 02:
That statement came in.

[00:21:03] Speaker 02:
Her statement to another housing authority employee, also her cousin, made on the phone, also referring to Manuelito by name, where it was during the assault

[00:21:19] Speaker 02:
And she said on the phone, he's here, he's here, he's trying to break into my house.

[00:21:25] Speaker 02:
That came in, identifying Manuelito.

[00:21:28] Speaker 02:
Her statements to the supervisor, housing authority supervisor, Crocker, who testified.

[00:21:36] Speaker 02:
He testified to exactly what she told him after the assault, the second assault on Wednesday when he broke into her home.

[00:21:49] Speaker 02:
He was one of the ones who responded there.

[00:21:51] Speaker 02:
And he talked about her statements to him about what happened, how it happened, and who did it.

[00:21:59] Speaker 02:
And that was also identifying Manuelito.

[00:22:03] Speaker 02:
Then in addition to that, and this sort of goes to some harmless error analysis as well, in addition to kind of the cumulativeness of these out of court statements, there were statements from the neighbors who heard Manuelito yelling at her house, at SA's home, and saw Manuelito

[00:22:25] Speaker 02:
kicking in the door went over to her home, and they were the ones actually who flagged down the housing authority security officers, I believe.

[00:22:38] Speaker 02:
And they were able to identify Manuel Lido as the abuser.

[00:22:46] Speaker 02:
And in fact, two of the boys, young, I think teenagers, stood in front of Manuelito as he attempted to lunge at SA.

[00:22:58] Speaker 02:
At that very time, there was a video of Manuelito sitting in the driveway next to the door that he ripped off the hinges and the hinges that he ripped off the house.

[00:23:14] Speaker 02:
Obviously, he was identified in that video.

[00:23:18] Speaker 00:
And there was- I'm going to stop you for a second.

[00:23:20] Speaker 00:
I have some questions on, I think, the second issue that you were going to go to.

[00:23:23] Speaker 00:
And I'm a little worried that you're going to run out of time.

[00:23:25] Speaker 00:
So I want to ask you, if the Wolf Child standard applies, where in the record does the district court explain why the no contact condition was necessary to accomplish the goals of sentencing?

[00:23:37] Speaker 02:
OK.

[00:23:38] Speaker 02:
I will tell you that.

[00:23:40] Speaker 02:
And it is the government's position that the heightened standard in Wolf Child doesn't apply in this case because of the nature of the relationship between Manuelito and his daughter, and that there is support in Wolf Child, and it is cited in the brief, and I can go through it again now, too, but I want to answer your question first, but there is support for the

[00:24:07] Speaker 02:
proposition that wolf child only applies when there is the type of parental relationship with a child that is kind of deserving of that fundamental, extra fundamental protection in recognition.

[00:24:26] Speaker 00:
Where in the record does the district court undertake this analysis?

[00:24:30] Speaker 02:
Okay, let me get, sorry your honor.

[00:24:34] Speaker 02:
First of all, procedurally

[00:24:37] Speaker 02:
The record does reveal that the district court did comply with Wolf Child, albeit in various sections.

[00:24:46] Speaker 02:
1ER12, the district court reads the letter from the child, AA.

[00:24:53] Speaker 00:
Okay, so I understand from reading your brief that sort of after the fact, the government has

[00:24:58] Speaker 00:
piece together this puzzle to say this over here, reading the letter, and then at the end, enforcing the no contact condition and sort of in between the statement by Mr. Manolito, all of this together meets the requirement under Wolf Child.

[00:25:16] Speaker 00:
But as I read the record, what we have is a very unclear statement from Mr. Manolito that kind of is a rambling statement of a number of things, including his desire

[00:25:28] Speaker 00:
to rebuild his relationship with his daughter, that he would like to have an opportunity to stay in the facility that he's in so that he can work on resolving his tribal warrants.

[00:25:40] Speaker 00:
And then sort of in this kind of very long and unclear and unsophisticated statement that he says, he makes a reference to relinquishing parental rights but then says,

[00:25:52] Speaker 00:
in due time.

[00:25:53] Speaker 00:
I'm hoping she'll come around.

[00:25:55] Speaker 00:
He's devastated by the letter that was read for the first time in court.

[00:25:59] Speaker 00:
And it's so unclear, in fact, that the government at trial says addressing the confusion on the government's part, and I'm at ER 46,

[00:26:11] Speaker 00:
Addressing the confusion on the government's part was when Mr. Manuelito was speaking to the court.

[00:26:17] Speaker 00:
I thought I heard him say he intended to rescind his parental rights, but I could have been mistaken.

[00:26:22] Speaker 00:
I didn't quite understand it.

[00:26:25] Speaker 00:
And then goes on to say, as the court knows, the Wolf Child case does provide that if a person has significant liberty interests in their relationship with their child,

[00:26:35] Speaker 00:
than lesser restrictions can be made.

[00:26:37] Speaker 00:
And I'll tell you that it's a little bothersome to me that at trial, the government is saying, look, I don't really understand what this means.

[00:26:45] Speaker 00:
I'd like the court to sort of engage in some analysis here.

[00:26:48] Speaker 00:
It ought to apply Wolf Child.

[00:26:51] Speaker 00:
And it raises this, and yet in the government's brief to this court, it does an about face and cites to the statement out of context that Mr. Manuelito made 10 times in its brief.

[00:27:04] Speaker 00:
and says, oh, it's so clear that Mr. Manolito was relinquishing his parental rights because he said, I relinquish my parental rights, and quotes that one section out of context 10 times as if there was never any confusion at trial, that the government's own lawyer didn't actually say that they were unclear about what was said.

[00:27:26] Speaker 00:
And then later on, the sentencing, the district court with no discussion whatsoever says,

[00:27:33] Speaker 00:
you will have no contact in any way with the following victims, including the daughter.

[00:27:38] Speaker 00:
So I'd like you to point me to where in the record the district court engages in the very analysis that the government itself indicated needed to happen with respect to the no contact order.

[00:27:51] Speaker 02:
And I'm happy to do that.

[00:27:55] Speaker 02:
Admittedly, the district court did not take a separate section of the sentencing hearing

[00:28:02] Speaker 02:
where he was going through the entire analysis for imposing sentence and say, now we're going to separately consider Wolf Child and this one of 25 supervised release conditions that are being imposed.

[00:28:17] Speaker 02:
What the court did is he addressed it along the way.

[00:28:22] Speaker 02:
There is nothing in Wolf Child or any of this court's precedents that disallow that.

[00:28:28] Speaker 02:
The court did an individualized analysis of the relationship.

[00:28:33] Speaker 02:
It did that by reading the letter, referencing the lifetime restraining order that the tribal court had already issued, hearing this statement in context that the defendant made about relinquishing his rights.

[00:28:53] Speaker 02:
And I think this court is, pardon me,

[00:28:58] Speaker 02:
wrong about its interpretation of the government's response at a later time.

[00:29:06] Speaker 01:
Regardless of that, would it have been sufficient?

[00:29:09] Speaker 01:
Let's leave aside the statement about relinquishment.

[00:29:14] Speaker 01:
The district court basically, it seemed to me, relied on the violent nature of the crime, the lifetime restraining order, and

[00:29:25] Speaker 01:
as the judge said, what they've articulated to the court, which I took to be a reference, at least in part, to the letter.

[00:29:31] Speaker 01:
Would those reasons suffice, regardless of this other, the relinquishment statement?

[00:29:42] Speaker 02:
Yes, and by the way, the court itself did not reference the relinquish with statement.

[00:29:47] Speaker 01:
No, it did.

[00:29:48] Speaker 01:
That's why I'm asking you.

[00:29:48] Speaker 02:
It only heard that statement.

[00:29:51] Speaker 02:
The violence against the mother, as you cite Judge Graber, but also that some form of violence was being inflicted on the mother.

[00:30:01] Speaker 00:
Well, how do we know any of this when the district court does not actually engage in any discussion on

[00:30:09] Speaker 00:
whether or not the no contact order is more restrictive than necessary to accomplish the goals.

[00:30:15] Speaker 00:
It's possible that all of these things, when considered in light of the requirement under Wolf Child, that it does.

[00:30:25] Speaker 00:
But that wasn't done here.

[00:30:27] Speaker 02:
Because no objection was ever made.

[00:30:30] Speaker 00:
So that means, you're right, no objection was made.

[00:30:33] Speaker 00:
So the standard for this court is to review this under a plain error standard, correct?

[00:30:38] Speaker 00:
Sure.

[00:30:39] Speaker 00:
I mean, that's the government's argument in its brief, correct?

[00:30:42] Speaker 02:
Absolutely.

[00:30:43] Speaker 02:
And under the plain error standard, and by the way, I just want to interject for a moment that there are several instances that the court

[00:30:54] Speaker 02:
itself puts in the record at the sentencing hearing where he says, I can't understand you.

[00:31:00] Speaker 00:
I just want to make you aware of the fact that you're out of time now, but I would like you to be able to finish your statement, so please finish your statement.

[00:31:07] Speaker 02:
The court says to the defendant, Mr. Manuelito, I can't understand you.

[00:31:12] Speaker 02:
You're mumbling.

[00:31:13] Speaker 02:
There are three instances in the record at that sentencing hearing

[00:31:19] Speaker 02:
at the same time that they've been saying, I couldn't understand it.

[00:31:22] Speaker 00:
He brings counsel up and he says that this is unclear, that, you know, is he on medication?

[00:31:28] Speaker 00:
So I think you're absolutely right.

[00:31:31] Speaker 00:
It is very unclear what he's saying and whether or not he understands the condition and whether or not there is an opportunity to have a less restrictive condition to meet the goals, correct?

[00:31:45] Speaker 02:
And it explains, I was bringing it up to give some context to the prosecutor's argument.

[00:31:50] Speaker 02:
I think that's what I heard, but I'm not sure.

[00:31:55] Speaker 03:
Does the court want me to go on?

[00:31:57] Speaker 03:
I don't have any other questions.

[00:31:58] Speaker 03:
I don't either.

[00:31:59] Speaker 03:
OK.

[00:31:59] Speaker 00:
Thank you very much.

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

[00:32:07] Speaker 04:
I want to make two quick points, Your Honors.

[00:32:09] Speaker 04:
The first is regarding the government's characterization of Wolf Child.

[00:32:14] Speaker 04:
it's insufficient for the district court to, at various pieces in the record, just cite to things that perhaps might justify this condition.

[00:32:21] Speaker 04:
At 1093 of Wolf Child, the court says, oh, I just lost my point, oh, sorry, 1092, it says the sentencing court, at the time it imposes the restrictive condition, must itself point to the evidence in the record on which it relies and explain how on the basis of that evidence the condition is justified.

[00:32:41] Speaker 04:
So it's not sufficient

[00:32:42] Speaker 04:
to sort of piece together portions of the record, and it's not sufficient.

[00:32:45] Speaker 01:
But the court does say the things at the time it's imposed that I mentioned.

[00:32:51] Speaker 01:
There's a prohibiting contact with the daughter considering the violent nature of the offense, what that was said in the letter, and the restraining order.

[00:33:05] Speaker 01:
Those are all mentioned at ER 55 and 56 at the time.

[00:33:09] Speaker 01:
So the only thing I gather that's missing is to say, and for that reason, I am imposing this condition.

[00:33:19] Speaker 01:
I mean, the court says, here are the building blocks.

[00:33:24] Speaker 01:
And so it seems like kind of a, I don't know, it seems to me that it is an explanation of why.

[00:33:33] Speaker 04:
I don't see on

[00:33:35] Speaker 04:
page 55 where he goes through all of that.

[00:33:37] Speaker 04:
I think he mentions the TRO, but he never explains why.

[00:33:40] Speaker 04:
Given that the violence was directed at SA, there's no evidence on the record that Mr. Mammolito had ever been violent towards his own child or other children.

[00:33:49] Speaker 01:
He relies also on the letter from the daughter.

[00:33:54] Speaker 04:
Correct.

[00:33:55] Speaker 04:
And that's one view of the relationship.

[00:33:56] Speaker 04:
He never goes into Mr. Mammolito's view of the relationship.

[00:33:59] Speaker 00:
But is it really sufficient to just say, for this reason, I mean, I take

[00:34:05] Speaker 00:
the point that I don't think that there's like the semantics requirement.

[00:34:08] Speaker 00:
It's a substantive requirement, right?

[00:34:12] Speaker 00:
He needs to explain why a no-contact provision is necessary to accomplish the sentencing goals.

[00:34:18] Speaker 00:
and why the condition is no more restrictive than reasonably necessary to accomplish those goals.

[00:34:22] Speaker 00:
I mean, it wouldn't have been enough to simply say, and for these reasons, after citing two various things that were introduced at the sentencing, right?

[00:34:30] Speaker 04:
Correct.

[00:34:30] Speaker 04:
Because part of Wolf Child is the district court has to justify, as Your Honor said, the severity and the breadth of this condition and why, for instance, he couldn't have phone contact or email contact with his daughter.

[00:34:40] Speaker 04:
That's much less restrictive.

[00:34:42] Speaker 04:
but it could still help him preserve the relationship.

[00:34:45] Speaker 04:
I want to make one really, can I have 10 seconds?

[00:34:47] Speaker 04:
You're out of time, so please make your final statement.

[00:34:49] Speaker 04:
Okay.

[00:34:49] Speaker 04:
Just the government went through a lot of evidence of other statements about Mr. Mammolito being the attacker.

[00:34:56] Speaker 04:
That was all from Wednesday, every single piece of evidence.

[00:34:59] Speaker 04:
That's not relevant to the assault charges, all of which had to do with Monday.

[00:35:04] Speaker 04:
Thank you, your honor.

[00:35:05] Speaker 04:
Thank you very much, counsel.

[00:35:06] Speaker 04:
This case is submitted.