[00:00:16] Speaker 00:
on behalf of Mr. Arradondo.

[00:00:18] Speaker 00:
In this escape case, the government alleged that Mr. Arradondo violated directions and limits by leaving a halfway house.

[00:00:26] Speaker 00:
The halfway house supervisor said she directed him to stay.

[00:00:30] Speaker 00:
He said she directed him to leave.

[00:00:32] Speaker 00:
And the prosecutor said, at a bill of particulars hearing, that that's why the factual dispute lies.

[00:00:38] Speaker 00:
the jury sided with the defense on that factual dispute, doubting the supervisor's story.

[00:00:44] Speaker 00:
But at trial, the theory of escape changed.

[00:00:47] Speaker 00:
The court instructed the jury that Mr. Arradondo was guilty if he failed to return to the halfway house, and the prosecutor urged the jury to convict because Mr. Arradondo failed to call BOP.

[00:01:04] Speaker 00:
that constructively amended the indictment and induced Mr.

[00:01:36] Speaker 00:
Your Honor, the constructive amendment here did not arise as a matter of timing, but as a matter of conduct.

[00:01:44] Speaker 00:
We agree escape is a continuing offense.

[00:01:47] Speaker 00:
We agree the government was free to prove offense conduct starting on June 6th and ending at arrest, but the conduct the government proved had to be the same conduct laid out in the indictment.

[00:02:01] Speaker 00:
The failure to remain within the extended limits of

[00:02:11] Speaker 00:
limits.

[00:02:12] Speaker 00:
The problem with

[00:02:33] Speaker 00:
No problem with that.

[00:02:35] Speaker 00:
But then it continues, which means that an escapee can be held liable for the knowing and willful failure to return to custody even after his initial departure.

[00:02:45] Speaker 00:
Total omission of limits, total omission of directions.

[00:02:49] Speaker 00:
It simply says if he willfully and knowingly failed to return after his initial departure, he is guilty.

[00:02:56] Speaker 02:
Was there any evidence presented with regard to events after the June 6th?

[00:03:05] Speaker 02:
day off the anniversary.

[00:03:07] Speaker 02:
Any efforts made by the government or the probation officer or the halfway house people to contact him?

[00:03:18] Speaker 00:
To my knowledge, Your Honor, there was no such evidence in the record.

[00:03:22] Speaker 02:
Was there anything in the record about where he was during that time?

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

[00:03:27] Speaker 00:
As soon as he, you know, from our perspective, and I think the district court agreed with us, as soon as he was told to leave

[00:03:49] Speaker 02:
trail near his mom's house, but that was, what, late October?

[00:03:54] Speaker 02:
That's correct, Your Honor.

[00:03:54] Speaker 02:
Do we know anything?

[00:03:55] Speaker 02:
Is there anything of record other than the inference, which is logical?

[00:03:59] Speaker 02:
he went back to his mom's house as to what he was doing to make himself unfindable or what he was doing to flee the jurisdiction?

[00:04:09] Speaker 00:
I don't believe there's any such evidence, Your Honor.

[00:04:11] Speaker 00:
I believe he, as far as the trial record goes, I believe he went to his mom's house and stayed there until his arrest.

[00:04:19] Speaker 00:
And so, of course, that is why this constructive amendment

[00:04:46] Speaker 00:
it's to uh...

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government made in closing.

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And we know from this court's precedence that even if the court correctly lays out the elements of an offense, a constructive amendment can still arise.

[00:05:07] Speaker 00:
And we have a few different sites for that.

[00:05:09] Speaker 00:
One, there was a case called Hosent where the court correctly instructed the jury about the offense, but then later

[00:05:24] Speaker 00:
convict on unindicted conduct.

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And the court said, quote, the instructions as a whole were both conflicting and misleading.

[00:05:33] Speaker 00:
And then it continued, conviction should not rest on ambiguous and equivocal instructions to the jury on a basic issue.

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Another site I would have is from a case called Ward.

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In that case, the government expressly made the argument the government can't or there is no constructive amendment unless

[00:05:55] Speaker 00:
for uncharged conduct and this court expressly rejected that argument.

[00:06:00] Speaker 00:
The court said no.

[00:06:27] Speaker 00:
So, again, we don't have a problem with the continuing offense part, but then the court said, which means that an escapee can be held liable for the knowing and willful failure to return to custody even after the initial departure.

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And so that omits the key language from the indictment, failure to return as directed and failure to remain within the extended limits of compliance.

[00:06:59] Speaker 00:
That's correct, Your Honor.

[00:07:00] Speaker 00:
But again, even when the other instructions, the original instructions, correctly instruct the jury, this Court has still reversed when the answer to a jury question is wrong or misleading.

[00:07:16] Speaker 00:
And Castillo-Mindas is a great example of that, where the Court correctly instructed on intent, but then incorrectly

[00:07:32] Speaker 00:
situation in walker and in fact in walker the court said

[00:08:10] Speaker 02:
it's a continuing offense.

[00:08:13] Speaker 02:
It's not just June 6, it's what happens the other days where you're outside of custody, you don't go back.

[00:08:20] Speaker 02:
That doesn't seem to take away all the other elements that are in Instruction 10 and would be read in conjunction with it.

[00:08:28] Speaker 00:
Well, a couple points on that, Your Honor.

[00:08:30] Speaker 00:
One, the court itself believed, so we asked the court just stop at the end of continuing

[00:08:44] Speaker 00:
would know have a clue what that meant.

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Or, I mean, the court could have rephrased and said, you may convict for conduct after June 6th.

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But the court itself said that it believed the jury was really asking about conduct.

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So it says, I think my instruction goes to the call of the question.

[00:09:02] Speaker 00:
The call of the question is, look, are we limited just to the 6th, or does it go on after an orge?

[00:09:08] Speaker 00:
Which, of course,

[00:09:16] Speaker 00:
asking about whether they can convict for the failure to return.

[00:09:19] Speaker 00:
At sentencing, the court said something similar.

[00:09:22] Speaker 00:
The court said there was doubt about what happened with respect to that conflict, about permissions, limits, but, quote, when he stayed out after the dust-up, didn't call his lawyer, didn't call probation, this is the government's call to the authorities theory, didn't report to the court.

[00:09:41] Speaker 00:
That's where the escape took place, and that's what the jury was told.

[00:10:30] Speaker 00:
that it has to involve a change of facts.

[00:10:34] Speaker 00:
In fact, we extensively briefed in our reply brief many examples of a change in legal theory.

[00:10:39] Speaker 01:
The elements usually change here.

[00:10:41] Speaker 01:
I mean, it seems like elements didn't change.

[00:10:43] Speaker 01:
I mean, there were just different theories of the case.

[00:11:02] Speaker 00:
question so I think to understand why our defense went to that it's important to remember that there is a mens rea here where you know Mr. Ardondo had to knowingly

[00:11:18] Speaker 00:
case that he did in fact transgress limits or directions he at least had a good defense that when somebody in authority someone with authority to give him directions told him to leave and he obeyed that he at least did not knowingly and willfully transgress

[00:11:34] Speaker 00:
those directions and limits.

[00:11:37] Speaker 00:
And this court has made clear that that kind of change in legal theory, exactly how a crime took place, can give rise to a constructive amendment.

[00:11:50] Speaker 00:
So, for example, in Shipsea,

[00:11:59] Speaker 00:
That didn't change.

[00:12:01] Speaker 00:
But in the indictment, the government said that he committed that theft by fraudulent pretenses, whereas at trial, the government was allowed to say that he took the money based on any theory of wrongful taking that was present under the statute, more similar to what happened here.

[00:12:18] Speaker 00:
And the court said that's a constructive amendment because Shipsey had notice only of the theory of theft by fraudulent pretenses, and the government was obligated to

[00:12:34] Speaker 02:
Mr. Howe.

[00:12:39] Speaker 02:
I plead the court, Zach Howe for the United States.

[00:13:21] Speaker 02:
And his bunkmate calls and says, you ought to escape.

[00:13:25] Speaker 02:
They're packing up your stuff.

[00:13:27] Speaker 02:
So he comes back.

[00:13:29] Speaker 02:
And then the critical element seems to be whether he's turned away or allowed to come back in.

[00:13:36] Speaker 02:
And the government starts with a theory he's allowed to come back in.

[00:13:39] Speaker 02:
Judge Burns makes it pretty clear, nah, the jury's not going to rule that way.

[00:13:44] Speaker 02:
If there wasn't beyond June 6, they weren't

[00:13:52] Speaker 02:
to say, it's been a long time, she may have forgotten, and so forth.

[00:13:55] Speaker 02:
He wasn't accusing her of fabricating.

[00:13:59] Speaker 02:
But he made it pretty clear the jury wasn't going to believe that.

[00:14:03] Speaker 02:
And I look back at the discussion in the context of the bill of particulars, and it seems to me at that point the government makes very clear its argument is that they never told him he could

[00:14:22] Speaker 02:
never told you cannot come back in.

[00:14:25] Speaker 02:
And that's not what Judge Burns at least thinks the evidence showed.

[00:14:31] Speaker 02:
And so the jury note suggests only if we consider what happens after June 6 can we convict.

[00:14:38] Speaker 02:
Judge says you can consider what happens later.

[00:14:40] Speaker 02:
It's a continuing offense, which is a matter of law, is true.

[00:14:43] Speaker 02:
But not the theory that had been presented

[00:14:53] Speaker 02:
made by the government to contact him after June 6th?

[00:14:58] Speaker 02:
And her answer was no.

[00:14:59] Speaker 02:
Do you have a different answer to that?

[00:15:00] Speaker 02:
No, I think that's correct.

[00:15:02] Speaker 02:
Okay.

[00:15:02] Speaker 02:
And I asked, is there any evidence as to where he was?

[00:15:06] Speaker 02:
And I had already guessed, and it appears he was at his mother's house.

[00:15:10] Speaker 02:
And it was like, what, four months later, finally he gets picked up.

[00:15:14] Speaker 02:
Had there been any effort by the government whatsoever to contact him to bring him back in?

[00:15:36] Speaker 02:
that a video we have shows him on the other side of the metal detector not being admitted.

[00:15:42] Speaker 02:
I'm baffled as to what he's supposed to do.

[00:15:45] Speaker 02:
And for that matter, I'm baffled as to how it fits within the indictment language.

[00:15:50] Speaker 02:
What's the boundary that he's not supposed to cross?

[00:15:52] Speaker 02:
If they don't let him in, where is he supposed to go?

[00:15:56] Speaker 02:
And at what direction is he refusing to report?

[00:16:00] Speaker 01:
Sure, Your Honor.

[00:16:00] Speaker 01:
So let me try to address all of that.

[00:16:02] Speaker 02:
So I am baffled by this case.

[00:16:12] Speaker 02:
that Judge Lee referred to.

[00:16:14] Speaker 02:
What I disagree with is that the layup was never pursued or wasn't pursued until trial.

[00:16:20] Speaker 02:
I think it was pursued from the outset of the case all the way through pretrial proceedings and all the way through trial, and I'm happy to give examples of that.

[00:16:28] Speaker 02:
Now, before I get there, I want to answer your specific question, which was, what is he supposed to do?

[00:16:32] Speaker 02:
I think the Bailey case addresses this

[00:16:42] Speaker 02:
to escape out of necessity.

[00:16:46] Speaker 02:
And what the Supreme Court says in Bailey is, well, once the necessity is over, if you've left by your claim of duress, once the duress is over, you don't have a reason to be out anymore.

[00:17:18] Speaker 02:
by the government in the indictment, in the bill of particulars, he failed to respond to our efforts to bring him back.

[00:17:28] Speaker 02:
But there's none of that, because there's no record that there was any effort to bring him back.

[00:17:32] Speaker 02:
He was allowed to stay at his mom's house for four months.

[00:17:36] Speaker 02:
So where is the theory alleged before that contradicts that?

[00:18:14] Speaker 02:
you made any attempt to turn yourself into authorities.

[00:18:17] Speaker 02:
They had some testimony about trying to contact the FBI that was disputed by the government.

[00:18:22] Speaker 02:
But that was the point is that there was no effort to try and turn yourself into authorities, not even necessarily the same facility that was housing them, but authorities who wouldn't threaten you or set fires to your facility.

[00:18:36] Speaker 02:
But at the end of the day, I think all of that would just go to a factual argument about

[00:18:46] Speaker 02:
or potentially whether there was some duress or necessity that remained in place, but none of that has anything to do with the allegations and the indictment.

[00:18:55] Speaker 02:
The indictment says very broadly that he failed to remain within the extended limits of his confinement.

[00:18:59] Speaker 02:
What were the limits?

[00:19:01] Speaker 02:
So the limits of the confinement would certainly include the halfway house itself.

[00:19:05] Speaker 02:
But he was turned away from the halfway house.

[00:19:08] Speaker 02:
So what is the confinement?

[00:19:11] Speaker 02:
I mean, I'm trying to be practical here.

[00:19:19] Speaker 02:
That appears to be what Judge Burns thinks the jury was going to find if it had to answer that question.

[00:19:25] Speaker 02:
And that was the question that the government said is the centerpiece of the case, what it's really about.

[00:19:29] Speaker 02:
So if the jury answers that question, he was turned away.

[00:19:35] Speaker 02:
Where is he supposed to go?

[00:19:36] Speaker 02:
So, Your Honor, again, I think that's a factual argument, but if the question is… It's a factual argument, but there's no evidence whatsoever that's

[00:20:55] Speaker 01:
police officer, any authority, any... Is there anything in the record about obligations when reporting to probation?

[00:21:03] Speaker 02:
Or to probation, no.

[00:21:05] Speaker 02:
Or anything.

[00:21:06] Speaker 02:
So yes, at page 110 and 127 and 128 of the record, as well as some of his own testimony, he has been told that he is in custody of the BOP at Oceanside and there's an intake process, an orientation manual, a meeting

[00:21:49] Speaker 02:
on June 6th or July 6th, he is failing to remain within the extended limits of his confinement as alleged in the indictment.

[00:21:58] Speaker 02:
He can contest all of that factually, but the theory is right there in the plain face of the indictment.

[00:22:05] Speaker 02:
I see I have 30 seconds.

[00:22:06] Speaker 02:
I just want to note that there's some implication that this was a big surprise to defense counsel.

[00:22:12] Speaker 02:
I think the indictment shows otherwise, but I think the bill in particular is in a number of pre-tribes.

[00:22:27] Speaker 02:
The government, two months before trial, a little less than two months before trial, describes as part of the instant offense him being arrested four months later.

[00:22:36] Speaker 02:
That's page five of the supplemental excerpts of record.

[00:22:38] Speaker 02:
At page 20 of the supplemental excerpts of record,

[00:22:59] Speaker 02:
that he was supposed to come back, and he didn't come back on a timely basis.

[00:23:04] Speaker 02:
Only it turns out he did come back on a timely basis.

[00:23:08] Speaker 02:
And again, if we believe Judge Byrne's assessment, it was turned away.

[00:23:13] Speaker 02:
And again, that's all a factual argument.

[00:23:14] Speaker 02:
It's hard for me to say that that articulation in the bill of particulars covers his failure to return on June 7th, 8th, 9th, 10th, or for the next four months, particularly when the government makes no effort to get him.

[00:23:51] Speaker 02:
indictment.

[00:23:52] Speaker 02:
I haven't even got to the second theory that was in the indictment.

[00:24:24] Speaker 02:
in their narrow factual response.

[00:24:26] Speaker 02:
I think the broad response is that anyone who is sentenced to a term of custody is by necessity directed to report to custody for that term.

[00:24:35] Speaker 02:
I don't think anyone would say that a prisoner believes they can walk out of custody because they haven't been, you know, directed in some formal sense to be in custody.

[00:24:43] Speaker 02:
The sentence itself does that.

[00:24:45] Speaker 02:
But if you want a factual answer for this record,

[00:24:52] Speaker 02:
That's where the facility monitor and the residential reentry manager talk about the fact that Arredondo has been transferred from BOP custody to the residential reentry center and that he has a handbook, an intake process, an orientation where he's told that he needs to get permission to be

[00:25:20] Speaker 01:
Possibly troubling.

[00:25:21] Speaker 01:
Seems like, I know it wasn't you at the trial, asked for two points in the sentencing for obstruction.

[00:25:31] Speaker 01:
What is the basis for that?

[00:25:34] Speaker 02:
So I believe it probably was based on what we perceive to be the false testimony at trial.

[00:25:40] Speaker 01:
That just seems, if anything, testimony at trial showed your key witness was the one who wasn't telling the truth.

[00:25:46] Speaker 01:
And she claimed he called him multiple times

[00:25:59] Speaker 01:
it seems you're just like piling on I mean Judge Burns didn't accept that but I mean it's this isn't like a video game we try to get maximum score I mean it just seemed completely gratuitous it was a little bit troubling to me sure that's fair enough your honor and I don't have insights into the exact ins and outs of

[00:26:22] Speaker 02:
described it as a half-court shot, but it did strike us as strange that, you know, when both parties agree, you know, Arradondo himself testified that he was told, come back to the facility from the hospital.

[00:26:35] Speaker 02:
And that's the same thing that the monitor said, was, I told him, come back to the facility from the hospital.

[00:26:41] Speaker 02:
It seems strange that she would have told him to come back to the hospital only to, come back from the hospital only to tell him, okay,

[00:27:13] Speaker 02:
I've got to say, I'm kind of appalled that we're still litigating this.

[00:27:19] Speaker 02:
I thought the piling on was unusually remarkable.

[00:27:23] Speaker 02:
But I don't rule out the possibility that your office might take another look and ask, is this worth pursuing?

[00:27:31] Speaker 02:
I got real problems with the pursuit of the case, even as I understand the legal theories about escaping continuing offense.

[00:27:38] Speaker 02:
And even as I understand reviewing the evidence most favorably and so forth,

[00:28:18] Speaker 00:
discussed, I think an important part of the bill of particulars is that it confined the allegations to defendant, quote, leaving Oceanview without permission and then not returning.

[00:28:32] Speaker 00:
And so I think the government

[00:28:38] Speaker 00:
into probation, that's not leaving Oceanview, that's not failing to return to Oceanview.

[00:28:44] Speaker 00:
So all of those theories are outside of the exact bill of

[00:29:11] Speaker 02:
client have had a defense.

[00:29:14] Speaker 00:
Your honor, I don't, so if I understand the layup correctly, the idea is that Mr. Ardondo would be guilty just simply if he failed to return to Oceanview period.

[00:29:25] Speaker 02:
He failed to call back in contact, he had phone numbers, he had a probation

[00:29:39] Speaker 02:
point he did not take affirmative action to go back the next day or the wait next week or the next month or to contact somebody.

[00:29:47] Speaker 02:
And so if that had been the allegation laid out in the bill of particulars, I'm not sure you would have had a defense.

[00:29:55] Speaker 00:
Well, Your Honor, I do think we would still have a mens rea defense.

[00:29:58] Speaker 00:
A mens rea, okay.

[00:29:59] Speaker 00:
Because actually Bailey says, talks about the potential for this defense.

[00:30:03] Speaker 00:
It says, quote, we need not decide whether a person could be convicted on evidence of recklessness or negligence with respect to the limits of his freedom.

[00:30:11] Speaker 00:
A court may someday confront a case where an escapee did not know, but should have known, that he was exceeding the bounds of his confinement and that he was leaving without permission.

[00:30:19] Speaker 02:
So your argument really is that because

[00:30:30] Speaker 02:
didn't put up the defense that you might have had to offer to the layup.

[00:30:33] Speaker 02:
And there is like nothing in the record about what happened on June 6, in October, whatever the date was.

[00:30:39] Speaker 00:
I think our claim goes slightly beyond that, which is that the indictment did not include the layup.

[00:30:47] Speaker 00:
Or rather, the government could have argued the layup to the extent that the jury was instructed that they had to find some violation of limits or directions.

[00:30:57] Speaker 00:
But that was entirely omitted from the court's instructions.

[00:31:02] Speaker 02:
government's overwhelming.

[00:31:43] Speaker 00:
Well, Your Honor, I wouldn't say it undoes it, but it does conflict with it because it says – You said conflict.

[00:31:51] Speaker 00:
What does it change?

[00:31:52] Speaker 00:
What does it take back from Instruction 10?

[00:31:54] Speaker 00:
The as-directed language and the limits language.

[00:31:57] Speaker 00:
So it says that Mr. Arradondo is liable for the knowing and willful failure to return to custody even after his initial departure.

[00:32:13] Speaker 00:
He did not fail to return to custody, at least not now.

[00:32:59] Speaker 00:
that instruction because again the court said that it was when he stayed out after the dust-up when he didn't call his lawyer didn't call probation that's where the escape took place and that's what the jury was told and I think your your honors your honors point about reading the instructions as a whole this court has expressly said it is

[00:33:23] Speaker 00:
was correct so far as it went or that it was to be read in the light of the original instructions and that these fairly presented the