[00:00:00] Speaker 02: It sounds like Council for Appellants will be splitting time. [00:00:03] Speaker 04: Yes, Your Honor. [00:00:06] Speaker 04: Our plan is I'll argue for eight minutes. [00:00:09] Speaker 04: We'll save four minutes for rebuttal to each, and then Ms. [00:00:13] Speaker 04: Richardson-Brayer will argue for eight minutes. [00:00:16] Speaker 02: OK, so you each want to have rebuttal? [00:00:19] Speaker 04: Yeah, I think that's the plan. [00:00:21] Speaker 02: That's fine. [00:00:21] Speaker 02: OK, please proceed. [00:00:23] Speaker 04: OK, thank you, Your Honor. [00:00:25] Speaker 04: May it please the Court, I'm Karen Landau, and I represent Robert Manning. [00:00:30] Speaker 04: My client came back to the Heritage Center armed, but he didn't shoot anyone. [00:00:35] Speaker 04: He moved past the scene, and he never even drew his gun. [00:00:40] Speaker 04: And on these facts, we have insufficient evidence to sustain his vicar murder conviction, because there's insufficient evidence of murder under California law. [00:00:52] Speaker 04: In particular, there's insufficient evidence of malice of forethought, which is a required element of murder. [00:00:59] Speaker 04: Now I think it's important to recognize that previously California, in cases like this where we're talking about really implied malice, although I know the government addresses expressed malice too and I'll get to that if the court's interested. [00:01:15] Speaker 04: Previously under California law, [00:01:17] Speaker 04: The government, you know, the local prosecutors primarily relied on what's called the natural and probable consequences argument, which is really if you did anything that created a danger, you could be responsible as long as the murder was foreseeable, was foreseeable, reasonably foreseeable. [00:01:36] Speaker 04: That's not the law in California anymore. [00:01:38] Speaker 04: The law requires more. [00:01:40] Speaker 04: For implied malice, an aider and a better can only be convicted of murder if he personally has expressed or implied malice and if he commits an act that has a high probability of causing death. [00:01:52] Speaker 04: It's not enough to create a dangerous situation. [00:01:56] Speaker 04: Here, Mr. Manning [00:02:00] Speaker 04: at most did that. [00:02:01] Speaker 04: He created a dangerous situation. [00:02:03] Speaker 04: He left a scene where an armed man confronted his cousin with a gun, threatened him, and he went and he and his, he and the shooter in this case, Sean Harrison, went back to the car, they got guns, they came back. [00:02:22] Speaker 04: But then they didn't shoot first. [00:02:25] Speaker 03: But what they did do in watching [00:02:29] Speaker 03: the video is go right to Simmons and not listen to the people who are trying to get them not to do it. [00:02:40] Speaker 04: They did do that, although I would point out the point. [00:02:43] Speaker 03: So what was the point of doing that? [00:02:44] Speaker 03: I mean, I understand going to get guns for self-defense because they want to go back to the party or because they were concerned about other people at the party. [00:02:52] Speaker 03: But on the other hand, to actually go confront this guy [00:02:57] Speaker 04: Doesn't that suggest that they were... I don't know that they actually confronted this guy. [00:03:01] Speaker 04: They wanted to go back to the party. [00:03:03] Speaker 03: But they didn't just go to the party. [00:03:06] Speaker 03: That's the point. [00:03:07] Speaker 03: They did not just go to the party. [00:03:10] Speaker 04: No, they tried to. [00:03:10] Speaker 04: They didn't have the chance. [00:03:12] Speaker 04: They got shot at first. [00:03:13] Speaker 03: But they went directly to him. [00:03:16] Speaker 03: He was outside, right? [00:03:17] Speaker 04: He was outside, but he was by the doors. [00:03:21] Speaker 04: So they couldn't get in back to the party unless they went that way. [00:03:24] Speaker 04: Is that right? [00:03:25] Speaker ?: Yeah. [00:03:26] Speaker 04: Yeah. [00:03:27] Speaker 04: So, and he's out there and he, again, he fired first. [00:03:31] Speaker 04: He fired. [00:03:32] Speaker 04: He shot Sean Harrison. [00:03:33] Speaker 04: Sean Harrison returned fire. [00:03:35] Speaker 04: Meanwhile, my client is gone. [00:03:38] Speaker 04: He's gone past the scene. [00:03:41] Speaker 04: He's north on Fillmore Street. [00:03:43] Speaker 04: I don't know if you know Fillmore Street, but he's north on Fillmore Street. [00:03:48] Speaker 04: He's, and you know, and the next they see him is when he gets dropped off. [00:03:52] Speaker 04: Somebody had obviously picked him up because he gets dropped off. [00:03:55] Speaker 04: at his car in the McDonald's parking lot. [00:03:58] Speaker 04: I think the main case that supports this argument is the California Supreme Court case of Peoples versus Reyes. [00:04:07] Speaker 04: That's cited in the briefs. [00:04:09] Speaker 04: It is important because it talks about what is required to be an implied, what's required to be a direct aider and a better on a theory of implied malice, and that's what we have here. [00:04:25] Speaker 04: Another critical point is in these cases, I'm sorry, Your Honor, were you going to ask, you looked like you were going to say something. [00:04:32] Speaker 02: No, please go ahead. [00:04:33] Speaker ?: All right. [00:04:35] Speaker 02: I wear that expression perpetually. [00:04:37] Speaker 04: Well, okay. [00:04:40] Speaker 04: So another, oh, I'm getting low on time. [00:04:42] Speaker 04: So actually, I have a few minutes. [00:04:47] Speaker 04: So I will move to the mutual combat issue and talk about that a little bit. [00:04:55] Speaker 04: In the brief, I argued that mutual combat instruction was legally confusing because it conflated, it said you could have mutual combat if you have a pre-existing intent to agree, if you agree to start or continue the fight. [00:05:11] Speaker 04: And by using that continue the fight language, it essentially negated self-defense. [00:05:17] Speaker 04: If the jury found that, if the jury found that [00:05:23] Speaker 04: self-defense began with Mr. the right to self-defense began when Mr. Simmons pulled out his gun and threatened pointed it at waved at them then if they agreed to continue by coming back that [00:05:38] Speaker 04: negated self-defense. [00:05:39] Speaker 02: Is this an argument that the instruction is just legally erroneous as written? [00:05:43] Speaker 04: I think it's twofold. [00:05:45] Speaker 04: I think it's inappropriate on the facts of this case, and it's legally erroneous. [00:05:50] Speaker 02: Was a legally erroneous argument made to the district court? [00:05:53] Speaker 04: It was not. [00:05:54] Speaker 04: Well, they argued in the sense that it shouldn't have been given because it was not applicable on the facts. [00:05:59] Speaker 04: But the claim about the validity, about the correctness of giving the instruction was made. [00:06:03] Speaker 04: So I think the claim was made even if the precise legal argument was not. [00:06:07] Speaker 04: And that makes it not plain error review. [00:06:11] Speaker 04: The other point about this instruction is that if you look at California cases where it's given, in this kind of context, there is something more. [00:06:18] Speaker 04: There is something more than just people who got into a fight and then they continued the fight. [00:06:24] Speaker 04: You have pre-existing, you have evidence, for example, in Nguyen of pre-existing gang rivalries. [00:06:30] Speaker 04: You don't have that. [00:06:31] Speaker 04: We don't know who Simmons was. [00:06:33] Speaker 04: We don't know what he intended, except that he was aggressive and armed. [00:06:37] Speaker 04: And on those facts, it essentially, by giving this instruction, it deprived the defense of their self-defense. [00:06:47] Speaker 03: I noticed in the transcript that at one point the district judge in rejecting this argument misquoted what Simmons said. [00:07:03] Speaker 03: Simmons said something like [00:07:05] Speaker 03: I'm gonna air out if you don't keep playing me, something like that. [00:07:10] Speaker 04: Yeah, he said something to the effect of, and I'm not, something that, if y'all, and I won't use the N word, keep playing with me, I'm gonna air it out. [00:07:18] Speaker 03: Right, and the district judge, in rejecting the arguments, characterized what he said as, let's go outside and air it out, something like that. [00:07:28] Speaker 03: No, he didn't say that. [00:07:28] Speaker 04: Which he didn't say. [00:07:29] Speaker 04: No, he didn't. [00:07:30] Speaker 03: So to me, the real problem with the mutual combat is really, [00:07:35] Speaker 03: Where are you getting Simmons agreement from? [00:07:37] Speaker 04: Well, exactly, that's right. [00:07:39] Speaker 04: And in addition, I think the government would have had a stronger argument if, for example, they had shown that Simmons was a member of a known rival gang. [00:07:49] Speaker 04: But they didn't. [00:07:51] Speaker 04: And believe me, I'm sure that if they'd had evidence, they would have presented it. [00:07:55] Speaker 04: So I think it's safe to say that Simmons wasn't a member of Page Street. [00:07:59] Speaker 04: And Simmons also was not a member of the other gang about which Johnny Brown had testified, which is called Eddie Rock. [00:08:08] Speaker 04: You know, Your Honor, if there's more questions, I'm happy to answer them. [00:08:12] Speaker 04: Otherwise, I'll save my two minutes for rebuttal and turn it over to Ms. [00:08:15] Speaker 04: Richardson-Royer. [00:08:17] Speaker 02: Okay. [00:08:18] Speaker 02: Thank you. [00:08:34] Speaker 02: Good morning. [00:08:35] Speaker 00: Good morning, Your Honors. [00:08:36] Speaker 00: I'm just doing the math about when I should stop. [00:08:38] Speaker 02: Let me just ask Ms. [00:08:40] Speaker 02: Robinson to please set the clock for 10 minutes. [00:08:42] Speaker 02: That way you'll be able to keep track of it. [00:08:43] Speaker 02: Thank you. [00:08:44] Speaker 02: Sure. [00:08:48] Speaker 02: Thank you. [00:08:49] Speaker 00: May it please the court, Elizabeth Richardson Royer on behalf of Jamari Coates. [00:08:53] Speaker 00: This appeal raises a number of issues, several of which [00:08:56] Speaker 00: concern the district court's treatment of what I call enterprise evidence, or evidence concerning Mack Block and Mr. Coats and Mr. Manning's association with it. [00:09:05] Speaker 00: And this morning I plan to briefly address two of those issues. [00:09:09] Speaker 00: First, the insufficiency of the admissible evidence to show that Mr. Coats shot at Mr. D. Simmons for the purpose, for the substantial purpose of increasing or maintaining his position in a racketeering enterprise. [00:09:21] Speaker 00: And second, the district court's [00:09:23] Speaker 00: erroneous conclusion that it lacked authority to bifurcate the trial into one phase concerning whether a murder occurred and another phase concerning the remaining elements of Vicar murder. [00:09:33] Speaker 00: But I want to start at the top by talking about the limiting instructions given in this case because they matter for both of these claims. [00:09:40] Speaker 00: So the district court in this case severely circumscribed the evidence that the jury was allowed to consider to reach determination about the intent and purpose of the murder. [00:09:52] Speaker 00: The district court told the jury it could not consider any of Johnny Brown's testimony. [00:09:55] Speaker 00: So all of Johnny Brown's testimony about the nature of his own gang and by extension Mac Block couldn't be considered for this reason. [00:10:04] Speaker 00: Sergeant Moran's testimony about Mac Block and the members in it and his experience with that gang couldn't be considered for intent or purpose. [00:10:12] Speaker 00: The racketeering acts, the specific five racketeering acts could not be considered [00:10:18] Speaker 00: to determine whether Mr. Coates acted with an enterprise purpose. [00:10:21] Speaker 00: And so what we're left with is the surveillance video, which shows the conflict. [00:10:26] Speaker 00: It shows Mr. Coates, Manning, and Harrison returning to the Heritage Center. [00:10:30] Speaker 00: It shows Mr. Simmons shooting at them and Mr. Harrison and Mr. Coates returning fire. [00:10:34] Speaker 00: The videos don't have any information about Mack Block. [00:10:38] Speaker 00: And so we're left with then Mr. Harrison's testimony, which talks about Mack Block as a neighborhood, talks about how some members committed violence, some didn't, that it wasn't required, [00:10:47] Speaker 00: There was no, there's nothing in his testimony about having to retaliate. [00:10:51] Speaker 00: And so that's what the jury had before it as admissible evidence and it was simply insufficient. [00:10:57] Speaker 03: And I think- As to what? [00:10:59] Speaker 03: As to the enterprise or as to the purpose of the defendants or what? [00:11:06] Speaker 00: In the briefing, I discussed both that Mack Block was an enterprise, but here I'm focusing on what I think is the much easier question, which is whether Mr. Coase acted with an enterprise purpose when he returned fire. [00:11:19] Speaker 00: Because that's the question on which all of this evidence was excluded. [00:11:23] Speaker 00: And so that's the question on which there was so little admissible evidence concerning Mack Block. [00:11:31] Speaker 00: The evidence was insufficient, and the fact that he was found guilty anyway just shows that the jury was completely unable to divide the evidence in the way that the district court was asking it to do. [00:11:43] Speaker 00: And the district court knew that the jury was going to have a hard time doing that. [00:11:46] Speaker 00: And that leads me to the second claim that I wanted to discuss, which is the bifurcation claim. [00:11:51] Speaker 00: Judge Alsop knew that the jury was not going to be able to put all this gang evidence out of its mind. [00:11:56] Speaker 00: And so what he wanted to do was divide into two phases the trial. [00:12:00] Speaker 00: which he attempted to do through the order of presentation. [00:12:04] Speaker 00: But by the time the jury had to reach its decision, it had all of the evidence before it. [00:12:08] Speaker 00: And the jury had a question about, you know, they asked for the limiting instruction to be repeated. [00:12:14] Speaker 00: The jury was concerned that it might not be able to do what the judge was asking it to do as well. [00:12:20] Speaker 00: And there was no reason that the court couldn't have bifurcated the trial in this way. [00:12:24] Speaker 00: And his decision to the contrary was [00:12:27] Speaker 00: a misunderstanding of United States versus Barker, which did not preclude bifurcation in this case. [00:12:34] Speaker 00: And he felt that his hands were tied by that decision, which they weren't. [00:12:39] Speaker 00: And if he had bifurcated the trial in that way. [00:12:42] Speaker 03: Do you want to explain why? [00:12:44] Speaker 00: Certainly, Your Honor. [00:12:45] Speaker 00: So Barker concerned a 922G charge. [00:12:50] Speaker 00: And the reason that the court and Barker held that bifurcation couldn't [00:12:55] Speaker 00: occur in that case was for essentially two reasons. [00:12:59] Speaker 00: because it felt that it would deprive the government of its ability to present evidence on all the elements. [00:13:03] Speaker 03: I don't understand that. [00:13:04] Speaker 03: That seems totally circular. [00:13:06] Speaker 03: I mean, I don't understand that explanation. [00:13:08] Speaker 03: The explanation is that the government should be able to present evidence on matters that turn out not to matter if we bifurcate it. [00:13:19] Speaker 03: Why does the government have a right to, I didn't understand it. [00:13:23] Speaker 03: Have you seen any explanation of this? [00:13:25] Speaker 00: I agree, Your Honor. [00:13:26] Speaker 00: I don't understand it either. [00:13:27] Speaker 00: And I think, you know, [00:13:28] Speaker 00: So the other piece was nullification, which also doesn't apply. [00:13:31] Speaker 00: But in terms of the government's right to present evidence on everything, Barker was decided before Old Chief. [00:13:38] Speaker 00: And I think that Old Chief really undercut that part of Barker, where the Ninth Circuit decision at Old Chief, which the Supreme Court overturned, relied on Barker and its progeny to say, really, we can't accept stipulations to a felon status, because the government has the right to present evidence on all the elements of his case. [00:13:58] Speaker 00: And old chief disagreed. [00:14:01] Speaker 00: And so I think that old chief really undercuts that rationale of Barker. [00:14:04] Speaker 00: And then you have the jury nullification piece, which doesn't apply here because you're asking the jury to consider whether all of the elements of murder have been proven. [00:14:13] Speaker 00: There is no risk of jury nullification if you bifurcate. [00:14:16] Speaker 02: How was this going to be bifurcated? [00:14:18] Speaker 02: What was going to be in phase one and what was going to be in phase two? [00:14:22] Speaker 00: I think that the court delineated the two [00:14:27] Speaker 00: phases of trial, but did not ask for a jury verdict in the middle. [00:14:30] Speaker 02: But what do you propose should have been done in a hypothetical phase one, and what was supposed to be reserved for a second follow-on proceeding if there was a guilty verdict in phase one? [00:14:44] Speaker 00: So where the court divided it, I think, is the appropriate place. [00:14:49] Speaker 00: So when the court gave its limiting instruction, that was the dividing line. [00:14:52] Speaker 00: And everything that happened before then had to do with the events at the Heritage Center. [00:14:57] Speaker 00: on the night of the offense, and all of the video surveillance came in, Harrison's testimony came in, all of the evidence about that night and what happened came in. [00:15:11] Speaker 00: Then the judge basically cut that off and said, now we're going to hear about the enterprise evidence, and you can't consider it for intent. [00:15:18] Speaker 02: But in your hypothetical phase one, would Vicar purpose be tried in phase one? [00:15:25] Speaker 00: No, Your Honor. [00:15:26] Speaker 00: So we would try just the murder under California law. [00:15:30] Speaker 00: We would have the jury decide whether the elements of murder had been proven. [00:15:34] Speaker 00: And if they found that there had been a murder under California law, then we would consider the additional three vicar murder elements in the second phase, which is what the judge wanted to do and felt he was unable to do. [00:15:45] Speaker 00: And his reason for not doing it was based on an erroneous conclusion of law. [00:15:52] Speaker 02: I guess I'm having trouble seeing why it's erroneous under Barker. [00:15:58] Speaker 00: Well, Barker deals with a totally different statute. [00:16:01] Speaker 00: And so I think [00:16:02] Speaker 00: When you have a statute where the only thing that criminalizes the possession of a firearm is the status as a felon, then you really do run the risk of jury nullification if you try the possession. [00:16:13] Speaker 02: That piece of Barker, I think everyone agrees, is kind of not in play here. [00:16:17] Speaker 02: But there's another piece of it which goes to whether you're essentially redefining the offense that's been drafted by Congress. [00:16:25] Speaker 02: And I think the concern with your position is that you're essentially breaking into, too, a statute that is the sum of its parts. [00:16:33] Speaker 00: Well, I think that, you know, that is the other piece of barker, but respectfully, I think that there are ways to deal with that. [00:16:38] Speaker 00: And so one of the ways was proposed by the Second Circuit in a case that I cited in the briefing, United States versus Kunin, where the court proposed perhaps we have just, you know, the evidence of the RICO predicates and then we have a special interrogatory in the middle where we find, we discover whether the jury finds that these predicates have been proven. [00:16:55] Speaker 00: And if so, [00:16:56] Speaker 00: then we move on. [00:16:57] Speaker 00: And so maybe at the end you still have a general verdict, but you can deal with it through special interrogatories in the middle that then reduce the risk that the jury returns a guilty verdict on murder because of this deeply prejudicial gang evidence that isn't relevant to those elements. [00:17:10] Speaker 02: Is some of this not relevant to just the circumstances of how the murder took place and perhaps the motive? [00:17:16] Speaker 02: In other words, how would you try the first part of this without any knowledge really of who these people were and why they were together? [00:17:23] Speaker 00: Well, I think one of the things that's interesting about this case is the district court's circumscription of the evidence that goes to intent and purpose, because the court said that none of the enterprise evidence could be considered for that anyway. [00:17:36] Speaker 00: And so whether that was legally necessary, I don't take a position on. [00:17:40] Speaker 00: But in this case, that evidence wasn't admissible on intent. [00:17:46] Speaker 00: So you don't need it. [00:17:47] Speaker 00: You can't have it. [00:17:48] Speaker 03: As to Barker. [00:17:50] Speaker 03: I think Barker itself cited cases from other circuits, but they were all felon in possession cases. [00:17:57] Speaker 00: Is that right? [00:17:57] Speaker 03: That's correct, Your Honor. [00:17:59] Speaker 03: I tried to find whether there was any instance in which Barker had been applied outside of felon in possession. [00:18:06] Speaker 03: Do you know of any? [00:18:08] Speaker 00: I don't remember a case like that. [00:18:12] Speaker 00: I will reserve the rest of my time. [00:18:13] Speaker 02: Yeah, we'll put two minutes on the clock when you return. [00:18:16] Speaker 00: Thank you, Your Honor. [00:18:28] Speaker 05: Good morning. [00:18:28] Speaker 05: May it please the court, Annie Shea for the United States. [00:18:34] Speaker 05: I will start with the points that my friends on the other side began with, which is insufficiency of the evidence and then bifurcation. [00:18:40] Speaker 05: And then I'll move on to the other issues. [00:18:42] Speaker 05: I'm sure the court have questions. [00:18:44] Speaker 05: With regards to the evidentiary sufficiency challenges, I think the bottom line is that both appellants are misapplying the legal standard here. [00:18:52] Speaker 05: They're asking the court to essentially [00:18:55] Speaker 05: not view the evidence in the light most favorable to the prosecution, but in the light most favorable to their theories. [00:19:02] Speaker 05: And the second step under Nevels and Jackson is determining whether viewing it in the light most favorable to the prosecution, whether any trial or a fact could have found the essential elements of the crime met. [00:19:15] Speaker 05: With regard to Mr. Manning's arguments regarding the insufficiency of evidence of malice aforethought under California law, the government did argue and prove here the elements of both expressed and implied malice. [00:19:33] Speaker 05: I think the bottom line is the jury could have found from the facts here the concerted action of Manning and his co-defendant [00:19:41] Speaker 05: as well as Mr. Harrison, that when he returned, when he responded to Mr. Simmons' disrespect by tapping on Mr. Harrison's shoulder, sprinting out of the Heritage Center to their cars, grabbing their weapons, and then returning to the scene, and again, it's not just they were returning to the party, they were clearly pushing past these SVIP workers who were trying to stop Mr. Manning [00:20:09] Speaker 05: and telling him everything is cool, just calm down. [00:20:13] Speaker 05: There was plenty of evidence from Mr. Harrison that Mr. Manning throughout this entire time was clearly very upset. [00:20:21] Speaker 05: And the words that he used was, if that dude whipped out on me, which both Mr. Brown and Harrison explained meant brandishing his weapon. [00:20:34] Speaker 05: So he's clearly triggered by the disrespect here by Mr. Simmons. [00:20:38] Speaker 05: I'm sorry. [00:20:38] Speaker 05: Who was prejudicing his weapon? [00:20:40] Speaker 05: Mr. Simmons. [00:20:42] Speaker 05: I see. [00:20:42] Speaker 05: OK. [00:20:42] Speaker 05: Yes, Your Honor. [00:20:46] Speaker 05: From these facts, a jury, a rational juror, could absolutely infer that he either, when he returned, had the intent to kill Simmons, or he had those four elements for implied malice that he [00:21:00] Speaker 05: that his actions had a natural probable cause of creating a dangerous situation and that he had deliberately disregard for this risk to human life that he was creating by returning to an armed man who had just threatened him with more weapons. [00:21:18] Speaker 05: With regard to Mr. Coates' challenge regarding the Vicar purpose, I think it's important to see here that there's essentially two [00:21:29] Speaker 05: Categories of evidence from which the rational jury could find that essentially the Vicar purpose existed here. [00:21:37] Speaker 03: What about the mutual combat instruction? [00:21:42] Speaker 05: The mutual combat? [00:21:43] Speaker 05: Yes, Your Honor. [00:21:44] Speaker 05: I can move through that. [00:21:48] Speaker 05: So first of all, as far as Judge Brecht's question regarding whether or not this was raised properly to preserve it for an abuse of discretion, harmless error review, it was not. [00:21:58] Speaker 05: I think rule 30 is clear that you have to raise with adequate specificity your objection to an instruction before the jury rests. [00:22:06] Speaker 03: But the question whether it should have been given was certainly raised. [00:22:09] Speaker 05: Absolutely, Your Honor, yes. [00:22:10] Speaker 05: So I think as far as whether or not it should be given, whether or not it's supported by the evidence is one question that the court certainly should review for abuse of discretion. [00:22:17] Speaker 05: And based off of the evidence here, there was evidence of a mutual combat situation. [00:22:24] Speaker 05: You had Mr. Simmons making the statement. [00:22:26] Speaker 05: He said, if you don't stop playing with me, I'll air it out, which Harrison testified meant I'm going to start shooting. [00:22:33] Speaker 05: And the response at that point, it was essentially an offer to fight. [00:22:39] Speaker 05: And a rational juror could infer that Manning and Coase and Harrison accepted that agreement when they ran back to their cars, retrieved their weapons, and returned back to actually confront Mr. Simmons. [00:22:57] Speaker 03: Was there any evidence about what, if you don't stop playing with me, meant? [00:23:01] Speaker 05: Yes, Your Honor. [00:23:02] Speaker 05: Mr. Harrison testified. [00:23:03] Speaker 05: I suppose maybe not as far as those particular words. [00:23:09] Speaker 05: He explained what it meant, what Mr. Simmons meant to air it out. [00:23:13] Speaker 05: He said that that was disrespectful and threatening. [00:23:17] Speaker 05: And a rational juror could perceive a very blatant threat like that with the brandishing of a weapon as essentially an invitation to fight, especially when you look at the evidence of just the enterprise [00:23:30] Speaker 05: functioning and the expectations that the defendants and other MACBloc members had as members of MACBloc that when you were confronted with disrespect like this, when someone whipped out a weapon or disrespected you in this sort of way, the expectation as a MACBloc member is to retaliate with violence. [00:23:53] Speaker 03: But I still don't really understand where Mr. Simmons' agreement [00:23:59] Speaker 03: to a gunfight with these people comes from. [00:24:02] Speaker 03: He said, if you don't stop playing with me, I'll air it out. [00:24:04] Speaker 03: He didn't say, I'm agreeing to have you come back with guns and we'll have a gunfight. [00:24:13] Speaker 05: Your Honor, the statement, if you don't stop playing with me, I'll air it out, could also have been construed by the fence here as if we keep playing with him or messing with him or whatever, [00:24:25] Speaker 05: If we continue this altercation with him, this verbal altercation, a shooting will occur. [00:24:30] Speaker 03: My understanding with the mutual combat is he has to agree to have a combat with them, as well as them having to agree to have a combat with him. [00:24:38] Speaker 05: Yes, Your Honor, it has to be an agreement, but it can be expressed or implied. [00:24:42] Speaker 03: Okay, and is he agreeing to have them come back with guns and shoot him? [00:24:46] Speaker 05: He made a very clear threat that if they came back, he would start shooting. [00:24:51] Speaker 03: He would start shooting, but not that he was agreeing that that could then start shooting too. [00:24:57] Speaker 03: I think this all comes from a duel, as I understand, from duels, right, where everybody agrees that both people are going to be in combat. [00:25:04] Speaker 03: What is the evidence that Simmons agreed that they could attack him? [00:25:11] Speaker 05: Your Honor, the evidence, there was very slim evidence about Simmons before the jury. [00:25:16] Speaker 05: that largely because it was precluded by defense motions at trial. [00:25:21] Speaker 05: Simmons was, and this was not before the jury, of course, a gang member. [00:25:25] Speaker 05: What was before the jury, however, was the fact that Simmons was standing there with three or four other men around him. [00:25:31] Speaker 05: They were having a verbal altercation, a very visible one, with four other members of the Mack Block gang, either members or associates. [00:25:41] Speaker 05: And Simmons made a very clear threat to them and pulled out a weapon. [00:25:46] Speaker 05: And so I think the question really is, is this enough to actually give rise to a mutual combat instruction? [00:25:53] Speaker 05: And I think it is. [00:25:54] Speaker 05: It's not a very high standard. [00:25:56] Speaker 05: A rational juror could infer from this situation that this was indeed a gang shootout situation, that you had outsiders in MacBlock territory making threats to MacBlock members, and they responded to a very expressed threat by returning with their weapons and engaging in a gunfight. [00:26:18] Speaker 05: Now, I wanted to move next to the bifurcation question, because I realize the court has probably a number of questions about that. [00:26:28] Speaker 05: So I'd say, first of all, I think Barker seems fairly clear that a bifurcation in this case would have been legal error. [00:26:36] Speaker 05: So really, the question... Has Barker ever been applied outside as a felony? [00:26:44] Speaker 05: Your honor, there has never been a case in which the elements of a single crime have been bifurcated in a federal trial. [00:26:53] Speaker 05: I think the most recent case to have conducted a survey of this actually came from a Maryland case from 2019, Hemming versus State, 459 Maryland 219. [00:27:03] Speaker 05: And that court also stated, our research reveals no federal precedent that authorizes [00:27:07] Speaker 05: this sort of bifurcated trial procedure. [00:27:10] Speaker 05: And then it goes on, and several of these cases since Barker, again, Barker's from several decades ago at this point, but every circuit, and I think I've seen at least six or seven circuits, including the ninth circuit, have held that this sort of bifurcation would be error. [00:27:26] Speaker 05: And so I think the question really is, is there still discretion to do it? [00:27:29] Speaker 05: There are some circuits, such as I think the Second Circuit has said there might be very, very extraordinary circumstances in which you might be able to bifurcate in this sort of way. [00:27:40] Speaker 05: But by and large, in general, this would be legal error. [00:27:44] Speaker 03: Can you explain to me, and I just may be really missing something, this concern that the government isn't going to get to [00:27:52] Speaker 03: put on evidence about an element that may be unnecessary to put on evidence about. [00:27:58] Speaker 03: Well, I think it's... First of all, just to start. [00:28:03] Speaker 03: Barker was going to have a stipulation. [00:28:08] Speaker 03: So it's a different situation because in either instance, whichever way the first prong went out, the issue wasn't going to get to the jury as to [00:28:22] Speaker 03: the felony conviction. [00:28:25] Speaker 03: And it seems to me a lot of the comments in Barker were about that. [00:28:28] Speaker 03: That is, it wasn't going to get to the jury. [00:28:30] Speaker 03: But here, both pieces are getting to the jury. [00:28:33] Speaker 03: So what's the concern? [00:28:35] Speaker 05: Well, I think the concern is twofold. [00:28:38] Speaker 05: And it's not just about the government's presentation of the evidence, but it is also about... Just a positive, though. [00:28:44] Speaker 02: My understanding is that they would not necessarily both get to the jury. [00:28:47] Speaker 02: The theory being that you would try the murder first, and if there was an acquittal on that, that it wouldn't proceed. [00:28:55] Speaker 02: Yes, Your Honor. [00:28:56] Speaker 03: Right, but why does the government have some vested interest in trying something that turns out to be unnecessary because it's not no longer at issue? [00:29:08] Speaker 05: Well, I think, one, I think it's largely a structural concern, right? [00:29:11] Speaker 05: This is a statute that Congress has written and prescribed certain elements to it. [00:29:15] Speaker 05: The government has an obligation to prove those elements beyond a reasonable doubt. [00:29:19] Speaker 05: And so in addition to that, the jury, [00:29:22] Speaker 05: also is supposed to deliberate on that entire offense with all its elements and find whether or not the government has proven to be on a reasonable doubt. [00:29:30] Speaker 05: And so what we're inviting here with this process is something I think that is problematic. [00:29:36] Speaker 05: In addition to essentially cutting the government's ability to present its case and meet its burden with regard to any single count, you're getting into jury deliberations. [00:29:47] Speaker 05: To ask the jury to stop in the middle of trial or however it looks like and make essentially [00:29:52] Speaker 05: half a finding on a part of an offense rather than whether or not there is guilt or innocence based off of all the evidence before of those elements. [00:30:02] Speaker 05: It's just something that, one, there's no precedent for, and two, I think, invites a number of issues even outside of the 922-G content. [00:30:10] Speaker 02: You mentioned earlier that there may be some situations where a court has discretion. [00:30:15] Speaker 02: Is that like an Erlinger-type situation? [00:30:17] Speaker 02: What would be the types of situations in which there is discretion? [00:30:22] Speaker 05: So, Your Honor, I think bifurcation, that idea obviously reaches into a number of different areas. [00:30:28] Speaker 05: And so, as my colleague, Mr. Coates' counsel has pointed out, bifurcation does occur when it comes to separating different accounts that are in an indictment into different trials. [00:30:40] Speaker 05: We, in capital phases, separate the guilt phase from the sentencing phase. [00:30:45] Speaker 05: We often have a separate finding when there's a sentencing enhancement from the guilt phase. [00:30:50] Speaker 05: So there's a number of situations in which bifurcation of a case, which is defined as having the same jury look at different pieces of a trial, is permitted. [00:30:59] Speaker 05: What is not permitted under all the existing case law and all the circuits right now is bifurcating a single count and separating its elements into separate proceedings. [00:31:12] Speaker 05: Now there, understandably, the judicial court had this [00:31:18] Speaker 05: had, you know, was concerned about the prejudice problem that the defendants kept raising. [00:31:22] Speaker 05: And so the district court essentially asked the government, you know, present it in essentially what looked like a bifurcated manner. [00:31:32] Speaker 05: Present the evidence of the murder first, and then you can present your vicar purpose after that. [00:31:35] Speaker 05: And the government did indeed do that. [00:31:39] Speaker 03: The problem here, and I don't know enough about these trials to know whether this is usual, is that the way they were proving the enterprise crimes, or to show that there wasn't enterprise, was using crimes that these same defendants committed. [00:32:05] Speaker 03: I mean, some of them weren't. [00:32:07] Speaker 03: I mean, I think this robbery of the marijuana thing, the defendants were not involved, as I understand it. [00:32:14] Speaker 03: That seems to me to be a different problem. [00:32:16] Speaker 03: But when you're using the actual crimes as the enterprise crimes, the crimes that the same people committed, you're essentially [00:32:27] Speaker 03: and this was the problem here, you're running into intent and purpose in 404B. [00:32:32] Speaker 03: And in fact, the government ended up running into it itself. [00:32:35] Speaker 03: It was using that evidence that the judge said that it could use in its closing argument. [00:32:40] Speaker 03: It just seemed for intent and purpose purposes, it's very hard to keep them apart. [00:32:46] Speaker 03: when that's the case. [00:32:47] Speaker 03: Now, I have no idea whether there are other cases. [00:32:51] Speaker 03: This is true in this run of cases in general and in which there's a particular problem as to the prior actions of the particular people. [00:33:05] Speaker 05: Your Honor, and I completely understand the concern here. [00:33:10] Speaker 05: I think this is something that exists. [00:33:13] Speaker 05: in essentially any RICO and Vicar case. [00:33:16] Speaker 05: Because what the government has to prove in those cases is four elements, essentially, when it comes to the Vicar offense, which is the existence of the enterprise. [00:33:23] Speaker 05: The enterprise engages in racketeering activity that there was a Vicar crime committed. [00:33:28] Speaker 05: In this case, it was murder. [00:33:30] Speaker 05: In that, it was for a Vicar purpose. [00:33:32] Speaker 05: And then it was what? [00:33:33] Speaker 03: I'm sorry. [00:33:33] Speaker 05: What's the fourth? [00:33:34] Speaker 05: The fourth is the Vicar purpose. [00:33:36] Speaker 05: I'm using a shorthand for the purpose of maintaining. [00:33:38] Speaker 03: But you don't have to prove the first two through the same people. [00:33:42] Speaker 05: You do not necessarily, Your Honor, but you can. [00:33:45] Speaker 05: And I think Banks is a great case that shows this. [00:33:48] Speaker 05: Rodriguez. [00:33:49] Speaker 05: I mean, all this court's cases on vicar murder and Rico shows that perpetually in order to prove the enterprise. [00:33:57] Speaker 05: And again, here an association in fact, Enterprise, has three elements that the Supreme Court has stated. [00:34:02] Speaker 05: And that you have to have purpose. [00:34:05] Speaker 05: You have to have, I'm sorry. [00:34:12] Speaker 05: You have to, there's essentially three structural elements and they are, [00:34:20] Speaker 05: their purpose, their relationships between those individuals, and the longevity. [00:34:25] Speaker 05: And so to prove that, if you only had, for example, a RICO enterprise in which the particular defendants had not committed anything in the past, you would have to rely on acts by other people. [00:34:37] Speaker 05: If you had a RICO enterprise in which, to show that longevity piece, for example, you only had incidents in which those very members had been committing prior racketeering acts, that might be the evidence that you have in order to [00:34:50] Speaker 05: in order to prove that rocketeering enterprise. [00:34:54] Speaker 02: There were limiting instructions that were given about the Enterprise Act's evidence and how it was not to be used for purpose. [00:34:59] Speaker 02: I think Ms. [00:35:02] Speaker 02: Richardson-Royer didn't take a position on whether those were necessary, but in the government's view were those excessive? [00:35:09] Speaker 05: It went above and beyond what the law requires, Your Honor. [00:35:13] Speaker 02: Why do you say that? [00:35:14] Speaker 05: I would say just based off of Banks is a very clear case in which that is a proper use in order to infer from the proof of the enterprise. [00:35:22] Speaker 05: Essentially, so what occurred here, what the district court stated was that you can't consider these enterprise acts or John D. Brown's testimony, for example, for the intent and purpose elements of Mr. D. Simmons' murder. [00:35:39] Speaker 05: What you could consider it for was the existence of an enterprise. [00:35:42] Speaker 05: You can consider it for the functioning of the enterprise. [00:35:46] Speaker 05: So again, that comes with how this enterprise operates and what its expectations are of its members, and as well as the defendant's associations and understanding of how the enterprise operates. [00:35:58] Speaker 05: And so a juror could infer from Johnny Brown's testimony, Enterprise Acts, each of these things, the enterprise [00:36:04] Speaker 05: existed and operated for so long was indeed an enterprise under the statute, and that the defendants were members of it and understood what the expectations were here, which is when you encounter disrespect in these sort of ways, you retaliate with violence. [00:36:20] Speaker 05: And from that, they could infer further that on the day of the murder, [00:36:24] Speaker 05: looking at completely separate evidence that came from Mr. Harrison and the video footage and everything else that the government presented, that these defendants, when they acted in the way that they did in murdering Mr. Simmons, were acting consistent with those expectations. [00:36:39] Speaker 05: And thus, they could further infer that indeed they had, that these defendants had possessed that by-car purpose. [00:36:49] Speaker 05: And so, [00:36:50] Speaker 05: So to answer your question in brief, Your Honor, the government's perspective is that the district court gave a limiting instruction that I think was above and beyond what this court would require. [00:37:01] Speaker 05: But even with that instruction in place, the jury followed it. [00:37:04] Speaker 05: There's no evidence in the jury to not follow that. [00:37:07] Speaker 05: And the government was still able to prove each of the elements of the vicar murder beyond a reasonable doubt. [00:37:12] Speaker 03: Now, again, the reason you think it's above and beyond is because [00:37:18] Speaker 03: the evidence is relevant to intent and purpose, even though an ordinarily absent the Vicar context would not come in for intent and purpose. [00:37:31] Speaker 03: In other words, for intent and purpose, you couldn't ordinarily put in evidence that Coates shot somebody years ago. [00:37:41] Speaker 03: But in this instance, in order to prove the enterprise crime, you could. [00:37:47] Speaker 05: Your Honor, for 404B there are some exceptions and intent is one of them. [00:37:53] Speaker 05: So of course there may be a situation in which a prior incident could be brought in under 404B. [00:38:00] Speaker 05: Here, the crime has what is not in most crimes, it has a motive element. [00:38:06] Speaker 05: That's what the Vicar Purpose is. [00:38:07] Speaker 05: Improving motive [00:38:10] Speaker 05: at least in this particular circumstance, requires proof of entire set of elements in which bringing a prior, you know, active conduct [00:38:19] Speaker 05: could essentially be proper if it survives a 403 test. [00:38:23] Speaker 05: And so that essentially is what it comes down to here. [00:38:26] Speaker 03: This is a 403 instruction, not a 404B instruction. [00:38:30] Speaker 05: Absolutely. [00:38:31] Speaker 05: I think there's a 404B problem, but the way that you figure out how you work around that is 403. [00:38:37] Speaker 05: You figure out whether or not the probative value here [00:38:41] Speaker 05: is or is not substantially outweighed by the danger of unfair prejudice. [00:38:46] Speaker 05: And not just prejudice, Your Honor. [00:38:48] Speaker 05: And so I think really the question is, was the evidence that was put before here, was the way that the district court limited all this evidence, did it invite the jury to essentially convict based off of these prior acts? [00:39:01] Speaker 05: And I don't think there's really any evidence that that occurred here. [00:39:04] Speaker 05: I think the district court was extremely limiting with his instruction, repeated that limiting instruction throughout trial, ensured that the jury understood it, but still permitted the government some limited ability to prove its enterprise case. [00:39:26] Speaker 02: We've taken you over your time. [00:39:28] Speaker 02: I want to see if our colleagues have questions for you. [00:39:32] Speaker 02: Okay, I'm gonna ask you to just go ahead and briefly wrap up. [00:39:36] Speaker 05: Okay, well, if there are no further questions, the government asked at this quarter firm. [00:39:40] Speaker 05: Thank you. [00:39:41] Speaker 02: Thank you. [00:39:43] Speaker 02: Okay, so we'll have two rebuttals and we'll hear first from Ms. [00:39:45] Speaker 02: Landau. [00:39:48] Speaker 02: Let's make sure two minutes are on. [00:39:49] Speaker 02: Yeah, thank you. [00:39:52] Speaker 04: Well, I just have a few points. [00:39:55] Speaker 04: So I want to point out one of the things that the prosecutor said in discussing the evidence of implied malice and arguing that the jury's verdict should be construed to have, you know, that there's enough evidence is that she herself said that, you know, that the defendants created a dangerous situation, but that's not the test. [00:40:13] Speaker 04: The act that the defendant commits has to create a high probability, to have a high probability of risk to life. [00:40:20] Speaker 04: It's not enough to create a dangerous situation. [00:40:23] Speaker 04: And that's a critical difference. [00:40:25] Speaker 02: Why couldn't a jury conclude it was a high probability when they went to retrieve firearms that they then used to confront somebody with? [00:40:35] Speaker 04: I think that, again, first of all, my client didn't shoot anyone. [00:40:40] Speaker 04: So he has to be convicted on an aiding and abetting theory. [00:40:44] Speaker 04: And so you have to look at the act that he committed, which is he provided a gun and he went back to the scene. [00:40:50] Speaker 04: So that in itself may have increased the danger, but it didn't necessarily [00:40:56] Speaker 04: create a high probability of death. [00:40:58] Speaker 04: He didn't know Sean Harrison was going to shoot. [00:41:01] Speaker 01: That's not the standard. [00:41:02] Speaker 01: It didn't necessarily, right? [00:41:03] Speaker 01: I mean, I think you played into her argument that the standards actually has to go the other way. [00:41:10] Speaker 04: But I think here again, and this is really, it's an argument of legal, I mean what I'm making is an argument of legal insufficiency. [00:41:17] Speaker 04: I think legally that's just not enough. [00:41:20] Speaker 04: I think they have to show more. [00:41:22] Speaker 01: But what more would they need to show? [00:41:24] Speaker 04: I think he could have said additional things. [00:41:27] Speaker 01: Somebody threatens to shoot me and I go back and I give a gun to somebody else and send them, with the understanding that they're going to go back and face somebody [00:41:36] Speaker 04: But they're going to go back, but you don't know that they're going to shoot. [00:41:39] Speaker 04: He knew that his cousin was a licensed firearms owner. [00:41:47] Speaker 04: When you look at the cases that this is decided in, there's always a lot more. [00:41:52] Speaker 04: There's something where the defendant gives a gun [00:41:55] Speaker 04: to somebody who has a history of shooting at other people or has been known to be kind of a crazy person. [00:42:03] Speaker 04: Sean Harrison wasn't that. [00:42:05] Speaker 04: That's probably, you know, Sean Harrison was, he worked. [00:42:08] Speaker 04: He was licensed. [00:42:10] Speaker 04: There's always more and there's just not that more here. [00:42:13] Speaker 04: And I understand your point, your honor, but that here, that's lacking. [00:42:18] Speaker 04: I was gonna- Go ahead and please continue. [00:42:24] Speaker 04: Yeah. [00:42:26] Speaker 04: What was this point? [00:42:29] Speaker 04: Oh, you know, I did just want to mention an express. [00:42:32] Speaker 04: There's clearly not enough for express malice. [00:42:34] Speaker 04: You really need more. [00:42:35] Speaker 04: You need an express intent to kill. [00:42:36] Speaker 04: And that's just lacking, especially since my client didn't shoot. [00:42:41] Speaker 04: And I think with that, I'll submit. [00:42:45] Speaker 02: Thank you very much, Ms. [00:42:46] Speaker 02: Landau and Ms. [00:42:47] Speaker 02: Richardson-Royer. [00:42:57] Speaker 00: My opponent argues that we have misapplied the legal standard and the sufficiency arguments, and that's not true. [00:43:04] Speaker 00: I am asking the court to look at all of the admissible evidence on the issue of purpose and intent. [00:43:11] Speaker 00: And I specifically ask the court to look at the limiting instructions and the district court's instructions to the jury at ER 1975 to 1976, 2882 to 2883, and 2009 to 2013. [00:43:24] Speaker 00: Those are the pages where the district court at length instructs the juries [00:43:26] Speaker 00: about what it cannot consider. [00:43:28] Speaker 00: And I ask the court to put that evidence out of its mind when it looks at the sufficiency. [00:43:32] Speaker 00: So once again, my opposing counsel has argued that Johnny Brown's testimony would lead the jury to be able to infer that Mr. Manning and Mr. Coats thought that they had to retaliate because of an expectation. [00:43:48] Speaker 00: But Johnny Brown's testimony was inadmissible. [00:43:52] Speaker 00: And without it, the evidence is insufficient. [00:43:54] Speaker 00: I think that United States versus Banks is a really helpful case for us. [00:43:58] Speaker 00: The government pointed it out. [00:44:00] Speaker 00: But in that case, there was so much more than just a possible association or membership, which is all that we have in the admissible evidence. [00:44:07] Speaker 00: In that case, there was evidence that, lots of evidence about the expectations of gang members who were in that particular set of the crypts. [00:44:14] Speaker 03: There was evidence that- You're saying Johnny Brown's evidence was inadmissible because of the instruction that the district court gave? [00:44:23] Speaker 03: That's correct, Your Honor. [00:44:24] Speaker 03: That's because you've also argued that it was just inadmissible. [00:44:27] Speaker 03: It should not have been admitted, but that's not what you're arguing here. [00:44:29] Speaker 00: That's not the argument here. [00:44:30] Speaker 00: And the specific instruction given about Johnny Brown's testimony is at ER 2882 to 2883. [00:44:36] Speaker 00: And it simply was not admissible for this purpose. [00:44:39] Speaker 00: And so in Banks, there was evidence that the defendant's girlfriend had mocked him for not retaliating in the past and told him, you know, what kind of crip are you? [00:44:47] Speaker 00: There's nothing like that here. [00:44:48] Speaker 00: So Banks really undercuts the insufficiency of the evidence here. [00:44:52] Speaker 00: And then just quickly on bifurcation, there's the concern about the government's rights to present its case and the government's ability to present everything at once. [00:45:02] Speaker 00: The concern historically about special verdicts and special interrogatories is to protect the defendant's rights. [00:45:09] Speaker 00: think that the government's right to present the case in the way that it wants should somehow be prioritized over the right of a criminal defendant to be free from this incredibly prejudicial evidence that is necessary in these Vicar prosecutions. [00:45:21] Speaker 00: Vicar is a unique statute. [00:45:23] Speaker 00: Bifurcation may only be appropriate in Vicar cases. [00:45:25] Speaker 03: In order to agree with you, do we have to disagree with the government and maybe with you that this [00:45:33] Speaker 03: that the district court did not actually have to exclude this evidence from consideration with regard to the murder. [00:45:43] Speaker 03: In other words, the government's position was that the limiting instruction was overkill and that there was no reason for it. [00:45:52] Speaker 03: Do we have to decide that in order to agree with you? [00:45:54] Speaker 00: No, Your Honor, no. [00:45:55] Speaker 00: But the court could decide in any case to bifurcate without [00:46:01] Speaker 00: without giving that limiting an instruction. [00:46:04] Speaker 00: And you don't have to decide whether, you know, there's no allegation that that was an abuse of discretion. [00:46:09] Speaker 00: That issue was not before the court. [00:46:13] Speaker 00: Did that answer your question? [00:46:14] Speaker 00: I'm not sure I understood it properly. [00:46:16] Speaker 02: Let me see if there's further questions for you. [00:46:17] Speaker 02: I know we've taken you over. [00:46:18] Speaker 02: OK. [00:46:20] Speaker 02: I want to thank you, Ms. [00:46:21] Speaker 02: Richardson-Royer, Ms. [00:46:21] Speaker 02: Landau, Ms. [00:46:22] Speaker 02: Shee. [00:46:22] Speaker 02: Thank you very much for your presentations this morning. [00:46:25] Speaker 02: This matter is submitted. [00:46:26] Speaker 02: And the court will stand in recess until tomorrow morning.