[00:00:00] Speaker 02:
We'll turn to the third argument.

[00:00:07] Speaker 02:
And that is United States versus Scott, case number 23-2234.

[00:00:55] Speaker 04:
Good morning, Your Honours.

[00:00:55] Speaker 04:
May it please the Court?

[00:00:57] Speaker 04:
Kate Morris of the Federal Public Defender's Office on behalf of Foster Lee Scott.

[00:01:01] Speaker 04:
I'd like to reserve three minutes of my time for rebuttal and I'll keep an eye on the clock.

[00:01:07] Speaker 04:
Mr. Scott was convicted of drug trafficking after two law enforcement officers testified that he had the mens rea required for that offense.

[00:01:15] Speaker 04:
That was the only issue in dispute at his trial.

[00:01:18] Speaker 04:
I'd like to start by addressing the expert testimony from Sergeant Helms, who testified that it was absolutely not possible that someone in Scott's shoes would possess the drugs for personal use, and that the only reason someone in Barstow would possess over 280 grams of meth is for the sole purpose of sales.

[00:01:37] Speaker 04:
That testimony is plain error under the Supreme Court's decision in D.S.

[00:01:41] Speaker 04:
Diaz held that while an expert can testify that most people in the defendant's shoes have the requisite mens rea, an expert violates rule 704B if they testify that all people in the defendant's shoes have that mens rea, even if the expert doesn't use the defendant's name.

[00:01:58] Speaker 04:
Because by assigning a mens rea to a class of people that includes the defendant, the expert is necessarily giving an opinion about the defendant's mens rea.

[00:02:07] Speaker 04:
That's exactly what Sergeant Helms did in this case.

[00:02:10] Speaker 04:
Although Helms started out by giving modus operandi testimony about typical practices of drug dealers and drug users in Barstow,

[00:02:19] Speaker 04:
He went beyond the scope of that permissible testimony when he testified that all people who have this quantity of methamphetamine in Barstow would possess it with the intent to distribute.

[00:02:30] Speaker 04:
That's just like the example that the court gave in Diaz of an expert who testifies at an arson trial that all people in the defendant's shoes set fires maliciously.

[00:02:39] Speaker 04:
And that's why it's plain error.

[00:02:43] Speaker 01:
When I read

[00:02:47] Speaker 01:
Holmes' testimony, I mean, he makes sort of fairly broad categorical statements about why a person would have this quantity of methamphetamine.

[00:02:56] Speaker 01:
But I had not noticed that he was really asked to distinguish between, you know, most people or all people.

[00:03:06] Speaker 01:
Where would you point me to as showing that he said all people have this intent?

[00:03:13] Speaker 04:
So, Your Honor, there are four parts of Helms' testimony that we're contesting.

[00:03:18] Speaker 04:
Specifically, number one is when he testifies at pages 423 to 424 of the record that in Barstow, 300 grams of meth is absolutely not for personal use.

[00:03:34] Speaker 04:
Number two is it ER418 to 419.

[00:03:38] Speaker 04:
That's when he testifies that the only reason someone in Barstow would possess over 280 grams of meth is for the sole purpose of sales.

[00:03:46] Speaker 04:
Number three is the mirroring hypothetical.

[00:03:48] Speaker 04:
That's ER422 to 423.

[00:03:52] Speaker 04:
He's asked by the prosecutor,

[00:03:54] Speaker 04:
In Barstow, if a person had 300 grams of meth inside a large Ziploc bag divided equally into five Ziploc bags and over $2,000 in cash, what would your opinion be as to that person's intent?

[00:04:07] Speaker 04:
Yeah, okay.

[00:04:08] Speaker 04:
And then number four is ER 421 to 422.

[00:04:13] Speaker 04:
That's where he's shown the government's photos depicting the evidence in this case, and he gives his opinion that the drugs in this case were possessed for the sole purpose of sales.

[00:04:22] Speaker 04:
So it's opposition, that's him saying.

[00:04:24] Speaker 01:
So just to take that last one, in hearing that and seeing the six baggies, what is that indicative to you, he says, of possessing for the sole purpose of sales?

[00:04:41] Speaker 01:
I'm not sure that saying this is indicative of possession for the purpose of sales is quite the same as saying that all persons who had drugs under these circumstances would have the mens rea required by the statute.

[00:05:01] Speaker 01:
I agree the gap is fairly small.

[00:05:03] Speaker 01:
But Diaz was willing to tolerate a fairly small gap between the kind of expert testimony that it said was impermissible and the kind that it said was okay.

[00:05:17] Speaker 01:
What's your response to that?

[00:05:18] Speaker 04:
Well, on that fourth piece of testimony, I think the problem is the use of the phrase sole purpose of sales.

[00:05:25] Speaker 04:
I think that's pretty unequivocal and categorical as to the mens rea that a person with the evidence in this case would necessarily have.

[00:05:33] Speaker 04:
But I agree that that fourth piece of testimony, the reason I listed it fourth is because I don't think it's quite as clear as the first three pieces of testimony that I identified.

[00:05:42] Speaker 04:
I think the mirroring hypothetical in particular, that's clearly plain error under Diaz.

[00:05:48] Speaker 04:
And in fact, mirroring, I'm sorry.

[00:05:51] Speaker 01:
But that one, I mean, that was on on 423, right?

[00:05:54] Speaker 01:
He's given the hypothetical, what would your opinion be?

[00:05:58] Speaker 01:
He or she is a drug dealer, and they're possessing that amount for the purpose of sales.

[00:06:03] Speaker 01:
I mean, when you're asking, what would your opinion be, he's stating what his opinion would be.

[00:06:09] Speaker 01:
It's not accompanied by a probability.

[00:06:12] Speaker 01:
And so in an ordinary sense, my opinion is X. That doesn't mean my opinion is X with 100% certainty, which is what Diaz proscribes.

[00:06:24] Speaker 01:
So isn't there again?

[00:06:26] Speaker 01:
Small I mean, it's a subtle distinction, but Diaz was willing to tolerate really subtle distinctions, wasn't it?

[00:06:35] Speaker 04:
Your Honor, I disagree with that.

[00:06:36] Speaker 04:
Rule 704b is called opinion on an ultimate issue.

[00:06:40] Speaker 04:
The Supreme Court was clear in Diaz that an expert giving an opinion on the ultimate issue is, that's what's covered by that rule.

[00:06:51] Speaker 04:
So I don't think

[00:06:52] Speaker 04:
Just by an expert saying, well, in my opinion, that person is a drug dealer and they would absolutely not possess the drugs for the purpose of personal use.

[00:07:07] Speaker 04:
Just saying that's my opinion doesn't take you outside of 704B.

[00:07:11] Speaker 04:
The whole point of 704B is to cover expert opinions on an ultimate issue.

[00:07:15] Speaker 04:
So I think that would allow the government to circumvent 704B if all an expert has to do is say, in my opinion,

[00:07:22] Speaker 04:
The drugs in this case were used for- What if- Oh, go ahead.

[00:07:29] Speaker 03:
Can you address the issue of harmlessness?

[00:07:32] Speaker 03:
Because let's assume we agree with you that the prosecutor's statements were improper and the district court erred by failing to give a curative instruction.

[00:07:39] Speaker 03:
Doesn't the other evidence suggest that Scott was lying or at least making inconsistent statements about his Matthews such that the error would be harmless?

[00:07:50] Speaker 04:
I'm sorry, your honor's question is about the misconduct claim.

[00:07:56] Speaker 04:
Well, the evidence doesn't suggest that he was lying about his Matthews.

[00:07:59] Speaker 04:
We transmitted the exhibit to the court where he, this is the 2021 video, where he, according to the government, says that he uses a sixteenth of a gram.

[00:08:10] Speaker 04:
If the court listens to the audio of that video,

[00:08:13] Speaker 04:
He doesn't say he uses a 16th of a gram.

[00:08:15] Speaker 04:
I would just ask the court to listen to that because he doesn't say the word 16th of a gram.

[00:08:22] Speaker 04:
What happens in that video is that

[00:08:25] Speaker 04:
Sergeant Hollister is asking him how much he uses.

[00:08:30] Speaker 04:
My client gives a very confused response, and ultimately Hollister gets him to say that he uses a couple of little nuggets at a time, but he doesn't say he uses a sixteenth of a gram.

[00:08:40] Speaker 04:
So there wasn't evidence that he was lying about that.

[00:08:44] Speaker 04:
He's clear, indirect, that he uses several sixteenths, or tinners, per day.

[00:08:52] Speaker 04:
And then Sergeant Helms, the expert, testifies that Etina is a sixteenth of an ounce.

[00:09:00] Speaker 04:
So it's actually pretty clear that my client was saying he uses several sixteenths of an ounce per day.

[00:09:07] Speaker 04:
In terms of the harm of the misconduct, I have a couple of points on that.

[00:09:13] Speaker 04:
First, the first point is that the misconduct went to the heart of the personal use defense because obviously it's much less plausible if, that defense is much less plausible if the jury thinks that my client was using a 16th of a gram every day because that would have made his stash last about three and a half years.

[00:09:34] Speaker 04:
Whereas if they believe it's a 16th of an ounce, it would have only lost him about a month and a half to three months.

[00:09:40] Speaker 04:
So that's a far more plausible

[00:09:42] Speaker 04:
explanation for the quantity.

[00:09:43] Speaker 04:
I'd also add two more points, which is that this court has recognized that a federal prosecutor's remarks carry a lot of weight with a jury.

[00:09:53] Speaker 04:
And then third, that these comments were made on rebuttal.

[00:09:57] Speaker 04:
So there was no opportunity for the defense to rebut them and point out what I just pointed out to your honor about the fact that in the video, he doesn't say it's the 16th of the gram because it was on rebuttal.

[00:10:07] Speaker 04:
The defense didn't have an opportunity to clarify that.

[00:10:10] Speaker 01:
But you did object to the statement, right?

[00:10:12] Speaker 01:
And the district court sustained the objection.

[00:10:14] Speaker 01:
So I guess the argument has to be that it was plainly erroneous for the district court to not sua sponte what exactly, give an instruction to disregard the statement?

[00:10:30] Speaker 04:
Yes, on the standard of review, our position is that because this is a constitutional violation, the government, so it's not, our position is this isn't plain error, it's a constitutional violation, and so the burden is actually on the government to prove harmlessness beyond a reasonable doubt.

[00:10:48] Speaker 04:
But in terms of what we think the court should have done, yes, we think the court should have stricken the comment and given an instruction that is sufficiently responsive and specific to cure the harm along the lines of that was an improper line of argument, a defendant has every right to consult with and prepare with their counsel, and you're instructed not to draw any adverse inference from that consultation in preparation.

[00:11:14] Speaker 01:
Because the court did give the standard instruction that the statements of the lawyers during argument are not evidence, right?

[00:11:24] Speaker 01:
Yes, it did.

[00:11:25] Speaker 04:
But the court also gave in its preliminary instructions, the instruction, and this is ER 68, it told the jury that even though closings are not evidence, they are very important when it comes to how you weigh the evidence.

[00:11:38] Speaker 01:
I take the point about the standard review, but assuming that I think the plain error standard does apply, what's the best case for the proposition that it is plain or obvious error, having sustained an objection, not to go on to sort of sui sponte, give a lengthy

[00:12:05] Speaker 01:
lengthy instruction to the jury, which you might think would only sort of highlight the comment in the minds of the jurors.

[00:12:12] Speaker 01:
But what case says that the court is supposed to do that?

[00:12:16] Speaker 04:
Well, I'll answer that in two parts.

[00:12:18] Speaker 04:
The first part is that all the court did here was say sustained.

[00:12:24] Speaker 04:
A jury, that's legally, a jury isn't necessarily going to understand what the court has done there.

[00:12:32] Speaker 04:
Often in general instructions to the jury, the court will actually say to the jury, I'm going to make a series of rulings throughout trial.

[00:12:40] Speaker 04:
You're not to draw any inferences from my rulings.

[00:12:43] Speaker 04:
So the idea that by saying that defense counsel pops up and says objection and the district court says sustained, that that cures the prejudice of the misconduct, I just don't think

[00:12:55] Speaker 04:
a jury would understand what sustained means.

[00:12:59] Speaker 04:
In terms of what case is the best case, I would say we cited Nobari, which is Ninth Circuit case from 2009, and Simtob, which is a 1990 Ninth Circuit case.

[00:13:11] Speaker 04:
And they both stand for the position that once the court recognizes that there's a misconduct problem, it has an affirmative duty to remedy the misconduct with an adequate curative instruction.

[00:13:24] Speaker 02:
You want it reserved?

[00:13:25] Speaker 02:
Yes, please.

[00:13:26] Speaker 04:
Thank you.

[00:13:42] Speaker 00:
Good morning, Your Honors.

[00:13:43] Speaker 00:
May it please the court?

[00:13:44] Speaker 00:
David Williams for the government.

[00:13:46] Speaker 00:
Earlier this morning, Judge Nelson suggested that with thorny questions, sometimes the most straightforward option is to just say that things are harmless and to say you don't need to address every nuance because it's harmless.

[00:14:01] Speaker 00:
And this is, I don't know that I would say that questions are thorny, but it is an easy case for harmlessness.

[00:14:06] Speaker 00:
This is a case where the defendant had almost a pound of methamphetamine

[00:14:12] Speaker 00:
It was not barely 50 grams.

[00:14:14] Speaker 00:
It was not sort of on the margins between personal use and dealing quantities.

[00:14:19] Speaker 00:
It was almost a pound of methamphetamine.

[00:14:21] Speaker 00:
in six separately packaged baggies.

[00:14:23] Speaker 00:
He had over $2,000 cash in small bills in his hands when the officers found him.

[00:14:31] Speaker 03:
He addressed the, I think your friend on the other side listed four instances in which Helm's testimony violated the 704B rule set forth in Diaz.

[00:14:44] Speaker 03:
And I'm particularly interested on the one at pages 422 and 23.

[00:14:49] Speaker 03:
where the statement that 300 grams of methamphetamine would quote absolutely not be for personal use.

[00:14:56] Speaker 03:
Doesn't that sound like an unequivocal statement that all defendants have a particular mens rea?

[00:15:01] Speaker 00:
I don't think so.

[00:15:02] Speaker 00:
I think that when you read it in context, it's talking about his belief of what he would infer, but it's not saying that he would say every single defendant would do it.

[00:15:11] Speaker 00:
It's that if he saw this, he would definitely think that it was.

[00:15:15] Speaker 00:
That doesn't mean that nobody

[00:15:17] Speaker 00:
That doesn't mean that there aren't other exceptions to the rule.

[00:15:20] Speaker 03:
Absolutely not sounds pretty unequivocal to me.

[00:15:23] Speaker 03:
And I am reading it in context.

[00:15:24] Speaker 03:
I'm reading all of the lines and the pages around this testimony.

[00:15:28] Speaker 00:
I agree.

[00:15:29] Speaker 00:
Absolutely not is not equivocal as to his belief.

[00:15:32] Speaker 00:
But I think what the absolutely not refers to can be read to talk about his belief as opposed to how many people, the whole universe.

[00:15:41] Speaker 00:
Is he saying, absolutely, most people would do it, or is he saying,

[00:15:45] Speaker 00:
absolutely every single person would do it.

[00:15:47] Speaker 00:
And when you look through the testimony, he never says that his description of who sells drugs is universal.

[00:15:55] Speaker 00:
He never uses the words all.

[00:15:56] Speaker 00:
He never uses the words every.

[00:15:58] Speaker 00:
He never talks about each drug dealer.

[00:16:00] Speaker 00:
What he talks about is that each case is independent and different, needs to be evaluated under the totality of the circumstances.

[00:16:07] Speaker 00:
He uses that phrase.

[00:16:08] Speaker 00:
repeatedly, and he talks about the different things that you would look at.

[00:16:12] Speaker 00:
And so what he's saying, I think in this context when he's saying it, is he would absolutely not believe it, because as a general rule, that's not how it works.

[00:16:21] Speaker 00:
But that doesn't mean that every single person is doing that.

[00:16:25] Speaker 00:
But again, I think a much easier way to deal with this is simply to say it's harmless for a variety of reasons.

[00:16:33] Speaker 00:
the $2,000 in cash, the almost a pound of methamphetamine, the fact that he had no way to have obtained that much methamphetamine.

[00:16:42] Speaker 00:
His story was that he stole money from his girlfriend.

[00:16:45] Speaker 00:
His girlfriend was a waitress whose monthly rent was $500.

[00:16:49] Speaker 00:
Him saying that $2,000 in cash stuffed under the mattress was hers, I think is facially implausible under the circumstances of this case.

[00:16:59] Speaker 00:
He talks about

[00:17:05] Speaker 00:
he talks about how he got a very great deal and his whole story is he got a great deal on this purchase of meth for personal use that comes out to a hundred dollars over the course of three months already implausible on its face also implausible even accepting the defendant's

[00:17:23] Speaker 00:
calculation of the maximum that he, the maximum that he ever actually claimed to use was five grams a day.

[00:17:28] Speaker 00:
That is a more than two month supply of meth and that is, it's just not an amount of meth that any one person could use without distributing it.

[00:17:41] Speaker 00:
There is no evidence whatsoever to suggest that any meth user is personally holding and parceling out five grams per day every day for three months without using significantly more or significantly less on some days.

[00:17:55] Speaker 00:
I think his entire testimony was simply implausible under the circumstances of this case.

[00:18:00] Speaker 00:
So I think that in context the absolutely not refers to the officers beliefs as opposed to the universe of people who do it But the easier way to deal with it is harmlessness for sure And to be clear when you're saying you're saying harmlessness, but it's really and this is on plain error So it's it's prong three prong three and prong four.

[00:18:21] Speaker 00:
It's not just prong three.

[00:18:22] Speaker 00:
It is also prong four that that it's not just prong three is there prejudice it's

[00:18:31] Speaker 00:
as a violation of substantial rights and integrity and fairness to the judicial process.

[00:18:36] Speaker 00:
That under the circumstances of this case, amongst many things, I don't think anyone is surprised that an expert opinion would be that having a pound of meth is consistent with drug sales.

[00:18:48] Speaker 00:
I don't think this is outside the scope of public reputation of judicial proceedings.

[00:18:55] Speaker 00:
I think that this happens, this or things very, very, very close to it happen,

[00:19:00] Speaker 00:
frequently in almost every single drug case, and saying that this is so detrimental that it seriously affects the public reputation of judicial proceedings, I think stretches plain error much further than it can go.

[00:19:19] Speaker 00:
I am happy to talk about any other particular questions the court has, but I would

[00:19:24] Speaker 00:
move to Diaz quickly, because I think it was something that we didn't get the full briefing on.

[00:19:30] Speaker 00:
Diaz is expressly consistent with the circuit's precedent on what the proper subject of expert testimony can be.

[00:19:39] Speaker 00:
And in doing so, I think when you look at the expert testimony here, you compare it with this court's prior cases, Younger, Gonzalez.

[00:19:48] Speaker 00:
I don't think that you can say that Diaz is

[00:19:52] Speaker 03:
And Diaz didn't change the standard.

[00:19:54] Speaker 00:
No, it didn't change the standard in this circuit.

[00:19:58] Speaker 00:
And so to the extent that it talks about this issue, it doesn't talk about hypotheticals.

[00:20:04] Speaker 00:
So it has nothing whatsoever to say about hypotheticals.

[00:20:07] Speaker 00:
That question about the mirroring hypothetical, Diaz can't change the standard because it didn't talk about it.

[00:20:13] Speaker 00:
This circuit's precedent on mirroring hypotheticals

[00:20:16] Speaker 00:
is almost exactly the same as this case.

[00:20:18] Speaker 00:
And so to the extent that there might be some wiggle room and some play between Diaz and this circuit's precedent, which I don't think that there is, even if there is, we come back to the harmlessness question.

[00:20:30] Speaker 00:
This is a bad case for, this is a bad vehicle for addressing that because you have so much meth and so much cash that there's just, even if you reach that issue, I don't think that you come out reversing the case because you still have to come up with

[00:20:45] Speaker 00:
the third and fourth prongs of harmless error.

[00:20:49] Speaker 01:
Can you address the statement in closing argument?

[00:20:53] Speaker 01:
One oddity here of course is that the objection came kind of in the middle of the statement.

[00:20:58] Speaker 01:
I don't really know what the second half of the sentence was going to be, but it kind of sounds like it was leading up to some insinuation that defense counsel had planned with the defendant for the defendant to lie.

[00:21:09] Speaker 01:
So what are we to make of that?

[00:21:12] Speaker 00:
I don't think that it was a plan to lie.

[00:21:13] Speaker 00:
I think that where it was going was, I described this in the briefing, that this is in the middle of a, I think, five or six page discussion of four separate problems with defendant's story of the case.

[00:21:25] Speaker 00:
One of the problems was that on direct, he testified one way.

[00:21:28] Speaker 00:
And on cross, he acknowledged that he said, I think it was a 16th of a gram.

[00:21:34] Speaker 00:
A gram, it is what it is.

[00:21:35] Speaker 00:
He says that.

[00:21:36] Speaker 00:
And so his testimony did change on crosses to that point.

[00:21:40] Speaker 00:
And I think what the prosecutor was saying was his pre-planned testimony went well because he knew what he was going to say.

[00:21:45] Speaker 00:
And on cross, he got flustered and changed his story.

[00:21:48] Speaker 00:
I don't think that it was saying that defense counsel had anything elicited in mind.

[00:21:52] Speaker 00:
I think it was the sort of ordinary slip of the tongue that can happen in a court when you're looking at people across the table, you see two people next to you and you talk about them both, as opposed to malicious intent.

[00:22:04] Speaker 00:
I certainly don't think there's any showing of that.

[00:22:10] Speaker 00:
I think that it was talking about the defendant's changing story is what it was talking about.

[00:22:14] Speaker 00:
And when he picks up, when the prosecutor picks up after the objection, that's the sentence that he completes, is that the defendant's story changed and that the defendant's story made no sense.

[00:22:24] Speaker 00:
And in context, I think that's where that was going.

[00:22:27] Speaker 00:
And the reference to defense counsel was a slip of a tongue.

[00:22:30] Speaker 00:
which an objection is a perfectly appropriate way to address and did thoroughly address.

[00:22:34] Speaker 00:
And I think the court's question earlier to my colleague about whether the district court should have Sue Esponte issued a curative, the curative that she gave as a possibility, I think it goes much too far.

[00:22:50] Speaker 00:
What she's contemplating would be that any time an objection is sustained, the court should always give a curative instructing the jury as to why there was a problem with the evidence.

[00:23:00] Speaker 00:
And that's not the case.

[00:23:02] Speaker 00:
I think that when you instruct the jury as to why there might be a problem with evidence or problem with a statement, you do call attention to what the problem was.

[00:23:11] Speaker 00:
And rightly or wrongly, it can plant seeds in jury's minds that the court wouldn't want to do.

[00:23:16] Speaker 00:
And if the court's going to do that, it should at least come at the request of a defense attorney.

[00:23:21] Speaker 00:
Defense counsel could have done that here, didn't do that, I think, was satisfied with the way the statement was reframed.

[00:23:27] Speaker 00:
I think that's the logical inference from the way this closing statement went forward after that.

[00:23:37] Speaker 00:
She also mentioned briefly that this came up on rebuttal and that defense counsel didn't have a chance to address

[00:23:44] Speaker 00:
the issue of whether it was a 16th of a gram or 16th of an ounce.

[00:23:47] Speaker 00:
Whether it was a 16th of a gram or 16th of an ounce was a huge issue throughout the entire rest of the trial.

[00:23:52] Speaker 00:
It's not like this was the first surprise time it came up.

[00:23:56] Speaker 00:
There was extended cross-examination over the question.

[00:23:59] Speaker 00:
This wasn't a surprise gotcha in rebuttal.

[00:24:03] Speaker 00:
This was part of the case, which I think also diminishes any prejudice that this wasn't

[00:24:11] Speaker 00:
a surprise moment that the jury had never even thought about.

[00:24:14] Speaker 00:
This was what they had been hearing throughout the rest of the case.

[00:24:20] Speaker 00:
Does the court have any further questions?

[00:24:22] Speaker 02:
I don't think so.

[00:24:23] Speaker 02:
We appreciate your argument.

[00:24:35] Speaker 04:
My colleague on the other side said that Diaz had nothing to say about mirroring hypotheticals along the lines of the one that was used in this case.

[00:24:45] Speaker 04:
I disagree with that.

[00:24:46] Speaker 04:
For one thing, it came up at oral argument in Diaz, just as Kagan asked a question of the assistant to the Solicitor General about it.

[00:24:55] Speaker 04:
And the government acknowledged that mirroring hypotheticals

[00:25:00] Speaker 04:
along the lines of the one that Justice Kagan posed in her question, are just a transparent way to circumvent the requirements of 704B.

[00:25:08] Speaker 04:
They're taking an inconsistent position with that in this case.

[00:25:13] Speaker 04:
I would also say that the problem isn't the mirroring hypothetical question, it's the answer.

[00:25:21] Speaker 04:
So a prosecutor is allowed to ask an expert witness a hypothetical that closely tracks the facts of the case, but the expert can't give an unequivocal answer about the mens rea that a person in that situation would have under Diaz.

[00:25:36] Speaker 04:
Diaz makes very clear that you can't use a hypothetical question to create a class of people that necessarily includes the defendant and then give an opinion about the mens rea of a person in that class.

[00:25:50] Speaker 04:
So I think Diaz does functionally say something about the use of mirroring hypotheticals.

[00:25:54] Speaker 04:
Going on to prong three of plain error, I just want to come back to the standard for prejudice under plain error.

[00:26:03] Speaker 04:
This came up earlier today.

[00:26:04] Speaker 04:
The standard for prong three is a reasonable probability of a different outcome.

[00:26:10] Speaker 04:
That certainly doesn't require us to prove an acquittal absent the errors.

[00:26:15] Speaker 04:
It doesn't even require us to prove a reasonable probability of a different outcome by a preponderance.

[00:26:20] Speaker 04:
It's less than 51%.

[00:26:22] Speaker 04:
And applying that standard to, in particular, Helms' testimony, what you have as an expert put on by the United States to talk about drug trafficking, who testifies in a single issue trial, mens reo was the only issue,

[00:26:37] Speaker 04:
that in his expert opinion, it was absolutely not possible that my client possessed the drugs for personal use.

[00:26:44] Speaker 04:
So what he's saying is basically, in his expert opinion, he believes my client is guilty.

[00:26:49] Speaker 04:
This court has recognized that expert opinions carry special weight with juries.

[00:26:55] Speaker 04:
That's particularly the case with Sergeant Helms.

[00:26:58] Speaker 04:
who was presented as highly credentialed and experienced.

[00:27:00] Speaker 04:
He told the jury he'd been on the force for over a decade.

[00:27:03] Speaker 04:
He'd worked over 300 drug investigations.

[00:27:06] Speaker 04:
He said he was in a supervisory role.

[00:27:09] Speaker 04:
He was a watch commander and advised other officers as to whether their drugs cases were more likely personal use or sales.

[00:27:17] Speaker 04:
And the government relied extensively on his testimony.

[00:27:20] Speaker 04:
They previewed it in opening and then they relied on it in closing and in rebuttal.

[00:27:24] Speaker 04:
I just, I know I don't have much time left, I just wanted to say.

[00:27:27] Speaker 02:
You don't have any time left.

[00:27:29] Speaker 04:
Okay.

[00:27:30] Speaker 02:
Okay.

[00:27:30] Speaker 02:
So, no, but look, we appreciate the arguments.

[00:27:32] Speaker 02:
I think we have, you've done a good job of representing your client.

[00:27:36] Speaker 02:
Thank you.

[00:27:37] Speaker 02:
Thank you to both counsel for your arguments in the case.

[00:27:40] Speaker 02:
The case is now submitted.