[00:00:23] Speaker 01:
the lack of probable cause for the search warrant, the misleading ballistics testimony, and the jury's special finding on the sentencing allegation of the brown murder.

[00:00:34] Speaker 01:
Your voice drops off quite a bit.

[00:00:36] Speaker 01:
Oh, I apologize.

[00:00:37] Speaker 01:
So what was number three?

[00:00:40] Speaker 01:
The jury's special finding on the sentencing allegation.

[00:01:00] Speaker 01:
We argue there was no probable cause to support the search warrant for the firearm, that there was at most reasonable suspicion for the officers to briefly investigate whether this was an illegal assault weapon.

[00:01:14] Speaker 01:
And that's because in California, it's not necessarily illegal to have

[00:01:38] Speaker 01:
I saw it.

[00:01:40] Speaker 01:
I guess there's no description of the flash suppressor.

[00:01:42] Speaker 01:
There's no explanation of his, you know, he says I've been an LAPD officer for 20 years, but there's no description of training, how many assault rifles or flash suppressors he's seen.

[00:01:52] Speaker 01:
There's nothing of that.

[00:01:53] Speaker 01:
But I think our other point that we raised is you can't tell by looking whether this gun is registered.

[00:01:59] Speaker 01:
You also can't tell whether it has a detachable or a fixed magazine.

[00:02:03] Speaker 01:
So those things, because it can be converted and the officer can't see that.

[00:02:07] Speaker 01:
And so the officer essentially assumed that it was unregistered, assumed that it hadn't been converted, and manufactured probable cause that way.

[00:02:15] Speaker 01:
When at most, he had, again, reasonable suspicion to briefly investigate whether this was registered.

[00:02:22] Speaker 01:
We've analogized to the cases

[00:02:26] Speaker 01:
driver is unlicensed or a car is unregistered, and in those circumstances, the officers have reasonable suspicion for a brief investigatory search to determine the licensing status, but not probable cause for a full search.

[00:02:42] Speaker 03:
He put in his affidavit, didn't he, that it looked like an assault weapon?

[00:02:46] Speaker 01:
He does, and then he basically just cut and paste the statutory definition.

[00:03:09] Speaker 01:
Correct.

[00:03:11] Speaker 01:
And so he just he made those assumptions and that's why we're arguing, you know, he assumed it was unregistered.

[00:03:16] Speaker 01:
He assumed this was fixed.

[00:03:19] Speaker 01:
I observed in plain view and the other officers told him they observed in plain view in the storage area behind the seat through the rear window an assault weapon.

[00:03:28] Speaker 01:
And then he says, I observed the assault weapon.

[00:03:30] Speaker 01:
It appeared to be a semi-automatic center fire rifle with a detachable magazine, a pistol grip, and a flash suppressor.

[00:03:35] Speaker 01:
That's literally just a cut and paste from the California statute that outlines the features test for an assault weapon.

[00:03:45] Speaker 01:
I don't know, I'm assuming this is an illegal assault weapon.

[00:03:48] Speaker 01:
I'm assuming it's been unregistered.

[00:03:50] Speaker 01:
And so I want to go and dig around in the car.

[00:03:52] Speaker 01:
But that gives him a reasonable suspicion for a brief investigatory search, not probable cause to search the entire car.

[00:04:24] Speaker 04:
interpretation of that.

[00:04:28] Speaker 04:
So my question is this.

[00:04:30] Speaker 04:
The officer says he saw the rifle.

[00:04:35] Speaker 04:
He says he saw some features that would indicate it was an assault weapon.

[00:04:43] Speaker 04:
Why isn't it reasonable for the officer to get a search warrant so they can take a closer look at the rifle?

[00:04:53] Speaker 01:
Well, I think if he needs a closer look at the rifle to verify, which is what he said he wanted the search warrant to verify that it was an assault weapon, that's just a brief investigatory search rather than probable cause to search the entire car.

[00:05:07] Speaker 01:
So I think that's the distinction.

[00:05:10] Speaker 01:
And again, California has sort of these specific ways that an assault rifle can be legal.

[00:05:19] Speaker 01:
And it could have been registered.

[00:05:20] Speaker 01:
It could have been purchased before this certain time and registered before a certain year.

[00:05:24] Speaker 01:
And instead of him searching to determine the registration status or briefly getting the gun to determine whether it was illegal, he assumed it was unregistered and therefore illegal.

[00:05:34] Speaker 01:
He assumed it had these features.

[00:06:09] Speaker 01:
it an illegal assault rifle but you can still have those features and have registered it before a certain date there's this grandfather clause and so he assumed that it was illegal or he found he concluded that it was illegal by assuming that it was unregistered which is something that you

[00:06:38] Speaker 01:
correct for the for the full search I think unless you unless you know the registration status you can keep referring to the full search what other evidence was on the search mr. Wallace had his rental car agreement with his name on it in there they searched the

[00:07:00] Speaker 01:
was they found identifying information in the car.

[00:07:03] Speaker 01:
I know there were water bottles that they tried to get DNA evidence off of, but it was mainly that they had his rental car agreement with his name on it, and then they got the fingerprints.

[00:07:16] Speaker 01:
I'll turn to the ballistics testimony regarding Daniel Rubin.

[00:07:23] Speaker 01:
So when there is ballistics evidence and testimony at trial, judges are supposed to be on the alert for the potential

[00:07:32] Speaker 01:
would be misleading to the jury about how reliable and how accurate ballistic testimony is.

[00:07:37] Speaker 01:
And so judges have to put up these safeguards to ensure that the expert only testifies to a reasonable degree of ballistic certainty.

[00:07:46] Speaker 01:
And that comes from this court's case in Johnson.

[00:07:50] Speaker 01:
And the judge here was aware of this.

[00:07:51] Speaker 01:
There was a pretty extensive pretrial discussion after the defense filed an preliminary motion.

[00:07:57] Speaker 01:
And the judge said,

[00:08:00] Speaker 01:
that testifying that this was the same gun implied too much certainty.

[00:08:04] Speaker 01:
And that's why he ruled that Daniel Rubin couldn't testify to that.

[00:08:07] Speaker 01:
The judge said it gave him heartburn for Rubin to say this was the same gun.

[00:08:12] Speaker 01:
Too much certainty, the most that Rubin could say was the bullet's characteristics matched, but not the ultimate conclusion that this was the same gun.

[00:08:20] Speaker 01:
And then, of course, at trial, Rubin testified twice that this was the same firearm

[00:08:31] Speaker 01:
And that testifying that they were the same firearm just doesn't leave room for the jury to doubt or question this evidence.

[00:08:40] Speaker 01:
In the court's prior cases of Johnson and Cazares, there was room left for the jury to sort of doubt the ultimate conclusion.

[00:08:47] Speaker 01:
Both of those experts had testified that this was a subjective conclusion that they were making, that this was not to a scientific certainty.

[00:08:55] Speaker 01:
And so that was why the court found that that testimony was either admissible

[00:09:05] Speaker 01:
This is the same firearm, and there's no room for doubt.

[00:09:09] Speaker 03:
Was there an objection made at that time as to his testimony?

[00:09:15] Speaker 01:
There was not.

[00:09:16] Speaker 01:
There was an objection made later when Detective Hernandez sort of picked up on it and kept referring to it as the same gun in the murder weapon.

[00:09:22] Speaker 01:
So is there a plain error?

[00:09:26] Speaker 01:
No, Your Honor.

[00:09:26] Speaker 01:
So the government has argued that.

[00:09:28] Speaker 01:
But if you look at the Archdale and the Louis cases,

[00:09:36] Speaker 01:
addressed it, ruled on it, and said this comes in.

[00:09:39] Speaker 01:
And so it was a clear ruling.

[00:09:42] Speaker 01:
We didn't have to take an exception to that ruling later at trial.

[00:09:47] Speaker 01:
I want to talk about the harmlessness of this or the prejudicial impact of Rubin's testimony.

[00:09:55] Speaker 01:
This court said in Vera that scientific experts have the imprimatur of validity.

[00:10:00] Speaker 01:
And I think the government is discounting how the jury would have

[00:10:08] Speaker 01:
that the court certified as an expert.

[00:10:14] Speaker 01:
He said he had been an expert for over 31 years.

[00:10:18] Speaker 01:
He testified over 250 times.

[00:10:20] Speaker 01:
So this was the sort of irrefutable evidence that the government put forth that the gun was linked to Mr. Wallace.

[00:10:27] Speaker 01:
The other evidence was the cooperating witness testimony that was heavily in dispute, and I think

[00:10:35] Speaker 01:
acquitted on the Pickett special sentencing allocation, but found Mr. Wallace guilty of the Brown murder.

[00:10:42] Speaker 01:
So the difference between those two was this gun that Rubin testified was the firearm used there.

[00:10:50] Speaker 01:
The government has also argued that Mr. Wallace admitted in jail calls and in interrogations that this was the Brown

[00:11:03] Speaker 01:
1222 to 1225.

[00:11:04] Speaker 01:
In 2016, he told Agent Kane that another gang member had told him that this AK-47 was good for a hot one, meaning it had been used in a murder.

[00:11:15] Speaker 01:
Nothing was said that it was the Brown murder.

[00:11:18] Speaker 01:
He said again in a 2016 jail call, 6 ER 1217, that this was when he was in custody on an earlier weapons charge.

[00:11:27] Speaker 01:
He was saying, oh, they're trying to charge me with

[00:11:30] Speaker 01:
with the little K that was found on the rental van, they're saying there's a homicide on it.

[00:11:33] Speaker 01:
Again, nothing about the Brown murder.

[00:11:36] Speaker 01:
The only, I think, evidence that came in talking about this AK-47 being used to kill Red was at 6 ER 1168.

[00:11:43] Speaker 01:
That's during a 2020 interrogation.

[00:11:46] Speaker 01:
But when the officer says, well, how do you know that?

[00:11:48] Speaker 01:
He says, oh, the prosecutor and my attorney told me this, or I heard it on the streets.

[00:11:52] Speaker 01:
That's not an admission that he knows that this gun was used to kill Reginald Brown.

[00:11:59] Speaker 01:
that he's been told that from other people, but he's not conceding that's necessarily true.

[00:12:04] Speaker 05:
Is it an adoptive admission?

[00:12:07] Speaker 01:
I don't think so, Your Honor.

[00:12:07] Speaker 01:
I mean, I think he clearly – he clearly – especially when the government played this – He didn't say they were wrong.

[00:12:12] Speaker 01:
He just said he accepts it.

[00:12:17] Speaker 01:
I don't know that he accepts it.

[00:12:18] Speaker 01:
I think he's explaining where he heard that from, so it's not necessarily that it's true.

[00:12:23] Speaker 01:
But I understand Your Honor's point.

[00:12:45] Speaker 01:
In terms of him conveying hearsay in those interrogation statements, I'd have to go back and check.

[00:12:52] Speaker 01:
I don't believe there was an objection to hearsay, but I can double check and let you know on rebuttal.

[00:13:18] Speaker 01:
Is your honor piggybacking on Judge Bea's point about the adoptive admission?

[00:13:27] Speaker 04:
Yeah, I think that's related.

[00:13:32] Speaker 04:
I thought there's just a different doctor than you.

[00:13:46] Speaker 04:
Council, government council, was that, were you at the video, right?

[00:13:55] Speaker 01:
I wasn't, that wasn't council below.

[00:13:58] Speaker 04:
Okay, well some council was there.

[00:14:00] Speaker 04:
Yes.

[00:14:02] Speaker 04:
And did they object to the hearsay statement?

[00:14:06] Speaker 01:
I don't believe so, but I can double check and let you know and rebuttal your honor.

[00:14:12] Speaker 01:
Thank you.

[00:14:13] Speaker 01:
Um, our last argument was,

[00:14:16] Speaker 01:
finding about the special sentencing allegation for the Brown murder.

[00:14:21] Speaker 01:
And so there in the verdict, and this is at 1ER 66, the jury found that Mr. Brown was woefully, deliberately, with premeditation, and malice aforethought, murdered Reginald Brown.

[00:14:32] Speaker 01:
So that is the definition of first degree murder.

[00:14:34] Speaker 01:
There's the premeditation.

[00:14:36] Speaker 01:
There's the deliberation.

[00:14:38] Speaker 01:
And there's nothing in that finding about the elements of any conspiracy liability.

[00:14:43] Speaker 01:
There's no overt acts.

[00:14:44] Speaker 01:
There's no agreement, nothing.

[00:14:46] Speaker 01:
And the problem is there wasn't evidence of any principal liability or first degree murder presented at trial.

[00:14:52] Speaker 01:
All of the evidence, all the argument at trial was that he was guilty of conspiring to kill Brown.

[00:14:57] Speaker 01:
And this I think is clear from the government's closing argument at 10 ER 2110.

[00:15:03] Speaker 01:
The government said, you know that Reginald Brown was murdered.

[00:15:07] Speaker 01:
There is no question.

[00:15:08] Speaker 01:
And this is first degree murder.

[00:15:09] Speaker 01:
Again, there is no question.

[00:15:11] Speaker 01:
Those men were murdered in cold blood.

[00:15:13] Speaker 01:
Reginald Brown for being a Hoover.

[00:15:14] Speaker 01:
Conspiracy to commit murder.

[00:15:16] Speaker 01:
And then they go on and talk about conspiracy law.

[00:15:20] Speaker 01:
They again talked about conspiracy at 10 ER 2114, 10 ER 2204.

[00:15:30] Speaker 01:
instruction that would have allowed the jury to make this special sentencing finding that he was guilty as a principal.

[00:15:57] Speaker 01:
Well, the problem is the jury wasn't instructed on aiding and abetting liability for this count, for this question.

[00:16:05] Speaker 01:
They were instructed on aiding and abetting liability for the 924 charge, but not count one.

[00:16:11] Speaker 01:
And so again, there was no basis for the jury to find aiding and abetting liability for this count.

[00:16:16] Speaker 01:
Did defense counsel object to that procedure?

[00:16:20] Speaker 01:
To the verdict form?

[00:16:22] Speaker 01:
Yes.

[00:16:22] Speaker 01:
They did not, Your Honor.

[00:16:26] Speaker 01:
We've argued this under a sufficiency challenge, and they did make a Rule 29 at the close of the evidence, however.

[00:16:32] Speaker 01:
I'll reserve the remainder of my time unless the Court has further questions.

[00:17:09] Speaker 02:
with her primary issue on appeal, which is the warrant issue.

[00:17:13] Speaker 02:
I think the notion that police officers did something wrong by obtaining a warrant for a rifle, which appeared to be an assault rifle in plain view in the back of a car unsecured in the

[00:17:30] Speaker 02:
somewhat far-fetched.

[00:17:32] Speaker 02:
Even if the rifle had not been an assault rifle, it would have been improperly and illegally stored in the car under California law.

[00:17:38] Speaker 02:
And the rifle had obvious and visible characteristics of an assault rifle under California law, such as a pistol grip and a flash suppressor, which are a registered assault rifle.

[00:17:52] Speaker 02:
It has to be unloaded, Your Honor, and this one had a visibly detachable magazine inserted into the rifle, which at the very least raises probable cause that it's loaded.

[00:18:03] Speaker 02:
You normally don't put a magazine into a rifle.

[00:18:26] Speaker 02:
that's probable cause that they're trespassing even if there might be an

[00:19:01] Speaker 02:
was really they took the more conservative, more careful route.

[00:19:21] Speaker 02:
the Supreme Court want them to take even when they would have been justified breaking into the car to take a look at the rifle to determine that in fact it was an assault rifle under California law and that it wasn't registered once they could read the serial number and run it through the database.

[00:19:38] Speaker 02:
There's certainly no requirement that there's no authority for the proposition that police are required to determine that an assault rifle under California

[00:20:01] Speaker 02:
It certainly authorizes the search of the car to the, again, particularity requirement, and this is, I should clarify no one thing, that this issue of probable cause was not raised below, and we think under Carrero it's barred.

[00:20:16] Speaker 02:
It's a new theory of suppression.

[00:20:18] Speaker 02:
The particularity issue was raised below.

[00:20:35] Speaker 02:
of ownership of the gun, which would include the rental papers and the car.

[00:20:40] Speaker 02:
The defense raises some issue about drugs or other evidence that was mentioned in the warrant affidavit, which is not an issue here.

[00:20:48] Speaker 02:
And even if that were a problem, it would be separable at any event.

[00:20:51] Speaker 02:
But the only issues that we care about here are the gun itself and the papers in the van.

[00:20:59] Speaker 03:
They need to have the papers in the van to see if that's

[00:21:13] Speaker 02:
There were other ways of finding out who owns a rental van.

[00:21:16] Speaker 02:
The van itself has a license plate on the outside.

[00:21:19] Speaker 02:
That's going to be a matter of public or readily available record that the police could figure out.

[00:21:26] Speaker 02:
It might take a little longer to do it.

[00:21:28] Speaker 02:
I'm sorry?

[00:21:29] Speaker 02:
It might take a little longer to go through that route.

[00:21:32] Speaker 02:
It might take a little longer, but it was information that was there and available to them.

[00:21:36] Speaker 02:
But again, it's not necessary to make an inevitable discovery.

[00:21:47] Speaker 02:
directly, that the police were justified in investigating the gun, which would have required them to go into the car physically to touch the gun or at least get close enough to look at the serial number.

[00:21:59] Speaker 02:
And here they took the more conservative step of actually getting a warrant in the middle of the night for it, which is what we want police to do.

[00:22:05] Speaker 02:
That was entirely appropriate and amply supported by probable cause.

[00:22:10] Speaker 02:
The cases that my colleague relies on about guns,

[00:22:15] Speaker 02:
not being presumptively illegal, which is true.

[00:22:19] Speaker 02:
Guns are not presumptively illegal in this country.

[00:22:21] Speaker 02:
We have a second amendment.

[00:22:45] Speaker 02:
That's entirely a field from what we have here, because here we have something that not only is a particular type of weapon as defined under state law, but on top of that, had a detachable magazine that appeared to be loaded, that in fact was loaded, that was 13 rounds, was longer than a fixed magazine would have been allowed in any event, that was in the back of a car in the middle of the night.

[00:23:14] Speaker 02:
authority to enter the car to investigate the gun that was improperly stored, regardless.

[00:23:23] Speaker 05:
Did the defendant and our appellant raise the Bruin case at all?

[00:23:29] Speaker 02:
No, Your Honor.

[00:23:30] Speaker 02:
And again, it would not have mattered under High End.

[00:23:32] Speaker 02:
The Supreme Court's decision in High End says that a sort of a constitutional challenge doesn't defeat the probable cause standard.

[00:23:39] Speaker 02:
That's H-E-I-E-N.

[00:23:41] Speaker 02:
It's cited in our brief.

[00:23:42] Speaker 02:
So even if it turns out that California's special treatment of assault, of what's defined as assault weapons under California law was completely and utterly unconstitutional, it wouldn't affect the probable cause of termination in this case.

[00:23:58] Speaker 02:
And also just as a side note, the notion that you can't tell whether something is a detached magazine

[00:24:20] Speaker 02:
officer would know what a detachable magazine looks like, and the notion that you could superglue a detachable magazine to a gun, I don't know how you would load it then, and magically transform it into something that wouldn't fit California's definition, that doesn't really make any sense, in any event, would not defeat probable cause.

[00:24:42] Speaker 02:
If the court has questions on this issue, I turn to the expert issue.

[00:24:47] Speaker 02:
about the expert.

[00:24:49] Speaker 02:
My colleague focused on the ballistics expert Rubin, so I'll start there.

[00:24:55] Speaker 02:
The notion that it violates casaras to state no degree of certainty at all, I think is just wrong and inconsistent with the opinion.

[00:25:10] Speaker 02:
What casaras says, what this court said in casaras, is that an expert cannot

[00:26:10] Speaker 02:
So that would be allowable under this court's case law.

[00:26:12] Speaker 02:
What the expert here did is used no certainty language whatsoever, just gave his opinion, which is exactly what the rule on expert testimony allows.

[00:26:24] Speaker 02:
And, I think importantly, gave the basis for his opinion.

[00:26:27] Speaker 02:
This wasn't a situation where the expert came in and just said,

[00:26:33] Speaker 02:
I know everything about guns, and I looked at the bullets that were fired, the exemplar shell casings, and I looked at the bullets from shell casings

[00:27:05] Speaker 02:
part of the report, to describe to the jury how he matched up the marks on the shell casings that were the exemplars with the shell casings that were recovered from the crime scene, in the same way that a handwriting expert might go through and talk about the loops on someone's F and the way they do their B, the way they write certain letters.

[00:27:26] Speaker 02:
Or a fingerprint expert will show pictures of fingerprints

[00:27:37] Speaker 02:
I haven't been inborn at them with nothing else.

[00:28:02] Speaker 02:
matching up the different marks.

[00:28:04] Speaker 02:
He goes through the different parts of the gun that would make different marks.

[00:28:07] Speaker 02:
He talks about the action, the bolt, the mark that the bolt, the shell case he makes when it's ejected.

[00:28:14] Speaker 02:
He talks about all these different things and gives examples to the jury.

[00:28:18] Speaker 02:
He laid it out.

[00:28:19] Speaker 02:
He showed his work, in other words.

[00:28:22] Speaker 02:
That, I think more than anything,

[00:28:43] Speaker 02:
The claim, and that's why I think this case doesn't match Cazares at all.

[00:28:48] Speaker 02:
The problem in Cazares was the expert used the phrase, scientific certainty.

[00:28:52] Speaker 02:
The expert here did not use the phrase, scientific certainty.

[00:28:56] Speaker 02:
What the defense is claiming here is that by not using any phrase at all, that somehow violates Cazares, and there's no support for it.

[00:29:26] Speaker 02:
fingerprint matching.

[00:29:28] Speaker 02:
There's no authority for the proposition that somehow violates rules of evidence to not use the phrase reasonable degree of certainty versus just offering the opinion.

[00:29:40] Speaker 02:
That doesn't make any sense.

[00:29:42] Speaker 02:
If the defense were right about this, there would be a legion of case law, but magic words that experts had to say in order for their opinion to be valid with their matching handwriting or matching art pieces or fingerprints.

[00:29:54] Speaker 02:
That's simply not the case here.

[00:30:02] Speaker 05:
to make a finding that the expert's methodology was correct.

[00:30:08] Speaker 02:
And we concede, under Holguin, which was decided six months after this trial, that under Holguin, express findings were required.

[00:30:17] Speaker 02:
And that's why we can see that that was an error under Holguin.

[00:30:21] Speaker 02:
The case we point out in our 28-J letter recently decided, Jimenez-Chavez, is, I guess, the most recent published case.

[00:30:37] Speaker 02:
but lack of express findings.

[00:30:40] Speaker 02:
And Jimenez-Jadez explains that there are two ways, sort of two steps, two ways that a Holguin error might be harmless.

[00:30:49] Speaker 02:
One is, if the expert opinion itself was reliable, then the lack of express findings are harmless.

[00:31:18] Speaker 02:
came in erroneously, would it have affected the outcome?

[00:31:23] Speaker 02:
Jimenez Chavez says it at the end of the opinion, and I think pretty clearly, and then I guess the third step is, even if there were a reversible, potentially reversible error under the Bacon case, that we cite, the Anban case, the correct remedy would be a remand to allow the district court in the first instance

[00:31:49] Speaker 02:
either of the two steps that it would need to, to show prejudicial error.

[00:31:53] Speaker 02:
Because this was perfectly reliable testimony, and the record bears that out.

[00:31:57] Speaker 02:
He described exactly what he did in matching up these bullets, shell casings, sorry, in matching up the shell casings that he recovered from the scene with the examples that he test fired.

[00:32:08] Speaker 02:
And to the extent that there was a problem with that, or there was some potential mistake, or a lack of thoroughness,

[00:32:28] Speaker 02:
because that would take an unreasonable amount of time.

[00:32:55] Speaker 02:
of the excerpts of record, it lays out the form itself.

[00:33:09] Speaker 02:
So, the form does not specify principal liability or aiding and abetting liability or Pinkerton liability.

[00:33:26] Speaker 02:
of the two decedents, either Pickett or Brown.

[00:33:31] Speaker 02:
And the jury decided that he did murder Brown.

[00:33:37] Speaker 02:
That was the finding.

[00:33:38] Speaker 02:
The case law, or federal law and California law, is that aiding and abetting liability and picketing liability are just different theories

[00:33:57] Speaker 02:
There's nothing wrong with the verdict form.

[00:33:59] Speaker 02:
The verdict form is correct on this face.

[00:34:01] Speaker 02:
And, in fact, the jury did find that the defendant murdered Reginald Brown.

[00:34:08] Speaker 02:
There was an instruction on aiding and abetting, correct?

[00:34:11] Speaker 02:
There was an instruction on aiding and abetting in Pinkerton as to count two, which actually came right after the discussion of this

[00:34:28] Speaker 02:
That's, let's see, it's at 2052 to 2054 of volume 9 of the excerpts.

[00:34:38] Speaker 02:
And it was referred to by the government in closing.

[00:34:40] Speaker 02:
I think one of my colleagues said something about the government's closing argument.

[00:34:46] Speaker 02:
I understand the government can't instruct the jury on the law closing argument.

[00:34:57] Speaker 02:
in co-conspirator liability and abetting liability generally and said the defendant doesn't need to be the one who pulled the trigger as the court instructed you.

[00:35:08] Speaker 02:
It didn't limit that to count two.

[00:35:10] Speaker 02:
There was no attempt by the defense to sort of make some distinction between the theories of liability on count one versus count two.

[00:35:18] Speaker 02:
Everybody understood that you could be guilty of murder even if you didn't pull the trigger, which is correct legally and the court instructed the jury on it.

[00:35:28] Speaker 02:
this form of the verdict?

[00:35:30] Speaker 02:
No, I think this was an agreed upon verdict form of recollection.

[00:35:35] Speaker 02:
Certainly there was no objection to this piece of it that they're complaining about now.

[00:35:38] Speaker 02:
And as my colleague said, their procedurally, their approach to dealing with that lack of

[00:35:57] Speaker 02:
because even if there were an error under Masaccio, the Supreme Court's decision in Masaccio, sufficiency isn't affected by overly narrow or heightened instructions.

[00:36:11] Speaker 02:
So even if the verdict form had said, you find him guilty as a principal because he pulled the trigger of murdering Reginald Brown, if he even had said that, the evidence would still be sufficient to support

[00:36:28] Speaker 02:
guilt on murder under Rico because he was guilty under, because the defense admits the evidence was sufficient under a Pinkerton-Coconspire liability theory.

[00:36:42] Speaker 02:
Because Masaccio says that you evaluate sufficiency against the evidence and the correct law, not erroneously heightened or narrowed law.

[00:36:55] Speaker ?:
Thank you very much.

[00:36:55] Speaker 02:
I think your time is finished.

[00:36:56] Speaker 02:
Most of the court has any questions.

[00:37:07] Speaker 01:
Thank you, Your Honor.

[00:37:08] Speaker 01:
Judge Gould, I double checked.

[00:37:10] Speaker 01:
There was no hearsay objection when the government played that video about Mr. Wallace's interrogation.

[00:37:19] Speaker 01:
In terms of the warrant, the government brought up that this is waived under Guerrero, and I just want to address that quickly.

[00:37:31] Speaker 01:
requires a finding of waiver.

[00:37:33] Speaker 01:
It doesn't say waiver anymore about the amendment.

[00:37:35] Speaker 01:
Three other circuits apply the plain error standard, which the Guerrero panel said is more familiar, a more workable standard.

[00:37:42] Speaker 01:
But this court, on April 1st, decided Sopolisan.

[00:37:46] Speaker 01:
That's an inventory search case.

[00:37:48] Speaker 01:
And what the court did there is they asked the defendant to brief a theory of suppression that was not raised below.

[00:37:55] Speaker 01:
And the court addressed that, dismissed it, ultimately.

[00:37:59] Speaker 01:
But the dissent

[00:38:07] Speaker 01:
wasn't even raised in the opening brief, and the court still considered that theory.

[00:38:11] Speaker 01:
And what the dissent notes is, the defendant there raised a Fourth Amendment claim below in district court, and so he now can raise a different theory of suppression on appeal, and that's what we've done.

[00:38:24] Speaker 01:
And I'm happy to 28-J that for the court, if your honors would like.

[00:38:30] Speaker 01:
In terms of Daniel Rubin's testimony about the firearm,

[00:38:36] Speaker 01:
He didn't say scientific certainty.

[00:38:37] Speaker 01:
That's correct.

[00:38:38] Speaker 01:
But I think, and as your honor noted, Judge Bayer, this sort of dovetails with the lack of a reliability finding.

[00:38:44] Speaker 01:
He did explain his methods.

[00:38:49] Speaker 01:
never addressed whether ballistics testimony is reliable or sort of one of those subjective forensic analysis that we're now learning are actually not as accurate as we've been led to believe in the past.

[00:39:01] Speaker 01:
The judge never went through any of that.

[00:39:03] Speaker 01:
He just said, oh, I leave it up to the jury to determine if they agree with his conclusions.

[00:39:07] Speaker 01:
But ballistics testimony is different.

[00:39:09] Speaker 01:
That's what this court said in Casales and Johnson.

[00:39:12] Speaker 01:
The judge has to be alert so this is not misleading and when the judge doesn't make the reliability finding upfront to actually look at the science and the jury is presented with this that it doesn't really have the capacity to understand it listens to his ultimate conclusion which is same firearm, same source.

[00:39:28] Speaker 03:
Did this counsel ask for a special instruction at that point?

[00:39:33] Speaker 01:
During the trial your honor?

[00:39:52] Speaker 01:
No, because they had filed an eliminate motion on this saying we don't think he's reliable.

[00:39:56] Speaker 01:
They had submitted the PCAST report saying ballistics testimony has an actually substantial likelihood of being inaccurate.

[00:40:05] Speaker 03:
They lost on that, but they still could have asked for instruction.

[00:40:12] Speaker 01:
They could have.

[00:40:12] Speaker 01:
I mean, that would have required them, I think, to take exception to the district court's ruling to ask, you know, to formulate a specific instruction about Daniel Rubin.

[00:40:21] Speaker 01:
So, Your Honor's correct, they did not.

[00:40:26] Speaker 01:
One last point on this jury special finding.

[00:40:29] Speaker 01:
The aiding and abetting instruction went to count two.

[00:40:33] Speaker 01:
It never informed the jury that they could find aiding and abetting as to count one.

[00:40:37] Speaker 01:
And that, I think, is important for the court to take into