[00:00:00] Speaker 04:
May it please the court, my name is Anne Voits and I've been appointed to represent Mr. Garcia.

[00:00:06] Speaker 04:
I'd like to reserve, if I can, three minutes for rebuttal.

[00:00:10] Speaker 04:
I intend to address at argument three sets of issues, the lay opinion issue, the admission of the co-conspirator statements, and vouching.

[00:00:18] Speaker 04:
I'm certainly happy to answer any other questions a court might have.

[00:00:21] Speaker 04:
It's my understanding that counsel for Mr. Jasso intends to address the specific unanimity issue.

[00:00:26] Speaker 04:
If, however, the court has questions that are specific to Mr. Garcia on that issue, I'm certainly happy to answer those as well.

[00:00:33] Speaker 04:
This court should reverse in this case for all the reasons set forth in the party's briefing, and we join in Mr. Jasso's arguments as well, but in particular for three issues that I'd like to discuss here.

[00:00:43] Speaker 04:
First, the court's decision to allow over-objection, repeated objection, testimony from low-level gang members that was not based on percipient knowledge, but based on their training or education, was not

[00:00:56] Speaker 04:
appropriate and it was error.

[00:00:58] Speaker 04:
It allowed those witnesses to testify unhampered by the limits that apply either to lay witnesses when they're offering opinions or the restrictions on expert witnesses and that was error.

[00:01:09] Speaker 04:
Second, the court admitted co-conspirator statements at the end of trial that should not have been admitted at all.

[00:01:16] Speaker 04:
even those admitted for a limited purpose were not so limited at trial.

[00:01:20] Speaker 04:
And many of them went to a discussion of past events without an appropriate or adequate showing that they were in furtherance of the conspiracy, or that for the statements that included layer upon layer of hearsay, that the underlying statements were also admissible.

[00:01:34] Speaker 04:
Third, I'd like to address the question of vouching.

[00:01:37] Speaker 04:
In this case, the government told the jury, essentially, that they could trust what was being said.

[00:01:43] Speaker 04:
They said that in the entire scope of the trial, did any cooperating witness testify to anything?

[00:01:49] Speaker 04:
Affirmatively testified to something that was then proved to be untrue?

[00:01:51] Speaker 04:
No.

[00:01:52] Speaker 04:
And the government backed that up by saying, by making statements that were in fact untrue, by saying that in this case, the cooperatives don't know the other evidence in the case, they weren't even allowed to review their own reports, and clearly they weren't allowed to review the statements of anybody else.

[00:02:07] Speaker 04:
But as a record at trial made clear, that was not true.

[00:02:09] Speaker 04:
First, Delgado testified that he only realized he'd been given false grand jury testimony when he was going over his transcripts.

[00:02:17] Speaker 04:
He'd had those transcripts.

[00:02:19] Speaker 04:
And second, all three of the cooperators, Aguilera, Delgado, and Zavala, testified that they discussed the information they shared with the government in building its case.

[00:02:32] Speaker 02:
The expert, the first issue.

[00:02:34] Speaker 02:
So why do you think they were testifying as experts when they were members of the gang and were talking about things that they experienced in that capacity?

[00:02:44] Speaker 04:
Because what they were talking about was not simply things that they'd experienced, but things that they had no knowledge of.

[00:02:49] Speaker 04:
For example, speaking about Mr. Garcia in particular, these witnesses had remarkably little information about him.

[00:02:55] Speaker 02:
For example, Mr. Is that an expert issue, or is that just a foundation issue?

[00:03:02] Speaker 04:
I think it's a both, Your Honor, because they were offering opinions.

[00:03:04] Speaker 04:
For example, to give one example of one of the opinions that they gave, they testified about why a kite skipped going to Mr. Garcia's cell.

[00:03:12] Speaker 04:
And they offered the opinion that it was because either he'd authorized the action in question or that he knew about it already.

[00:03:19] Speaker 04:
That was an opinion.

[00:03:20] Speaker 04:
It wasn't based on their personal knowledge.

[00:03:22] Speaker 04:
It was based on their experience and their training and education as gang members.

[00:03:26] Speaker 04:
And as the Eighth Circuit found in Turner.

[00:03:28] Speaker 01:
I still have trouble seeing how that is.

[00:03:31] Speaker 01:
expert testimony as opposed to, I've been a gang member, we have rules, we have a constitution, we have other things, just as examples, and this is how the system works.

[00:03:46] Speaker 01:
If it's going to pass by someone at this level, there are only two explanations.

[00:03:52] Speaker 04:
Well, I think, Your Honor, Turner is instructive on this.

[00:03:55] Speaker 04:
If you look at the way the Eighth Circuit approached it, they said they're not testifying on personal knowledge or perceptions.

[00:04:00] Speaker 04:
They aren't a participant in, for example, many of these conversations.

[00:04:05] Speaker 04:
They were interpreting them and providing a gloss on them.

[00:04:08] Speaker 04:
That gloss was based on their experience in the gang.

[00:04:11] Speaker 04:
and their education, they went through training to be gang members.

[00:04:14] Speaker 04:
They were basing, as the government repeatedly emphasized, they were basing their opinions on that training.

[00:04:20] Speaker 04:
That's precisely what an expert does.

[00:04:23] Speaker 04:
And by contrast, this was not a lay opinions witness because this was based on specialized knowledge.

[00:04:31] Speaker 04:
And so I think this court, like Turner, should conclude that this was, in fact, expert testimony, but unlike Turner, should conclude that it was reversible error.

[00:04:40] Speaker 04:
In that case, it was deemed harmless.

[00:04:43] Speaker 04:
In this case, it was not, because the evidence as to Mr. Garcia was very thin.

[00:04:48] Speaker 04:
There was no testimony of someone saying that he had ordered them to commit a removal.

[00:04:54] Speaker 04:
Much of this was based on assumptions about what his position was, but was also contradicted by other testimony.

[00:05:00] Speaker 04:
The cooperator who knew the most about Mr. Garcia, in fact, testified that at various points he'd been frozen out, that there was channel jumping, meaning that people were sort of freelancing.

[00:05:10] Speaker 04:
and not doing things as part of the gang, but doing things separately, which means that some of these actions could also then part of that.

[00:05:18] Speaker 04:
And so in light of that testimony, we think that the error in admitting this was both it does go as a court said to foundation, it goes to whether this was speculative, but it also goes to whether this was properly admitted.

[00:05:30] Speaker 04:
And these were all the grounds on which counsel objected to trial and why the court should have excluded this testimony but did not.

[00:05:37] Speaker 05:
Coming to the vouching issue, my understanding of the record is that it was the defense that brought up the cooperator witnesses' agreements and the requirement, well, just brought up their agreements and that they might have a benefit in testifying.

[00:05:55] Speaker 05:
So with the defense bringing that issue up, why was it improper for the government to respond to that and address the credibility attack?

[00:06:05] Speaker 04:
But at first, I think the answer is the government certainly can respond.

[00:06:08] Speaker 04:
The question is how it responds.

[00:06:10] Speaker 04:
And the way it chose to respond here was incorrect in two respects.

[00:06:13] Speaker 04:
First, it made factually erroneous statements.

[00:06:16] Speaker 04:
Second, it didn't sort of say to the jury, take these pieces of evidence and you can draw the conclusion.

[00:06:21] Speaker 04:
These are the things, you know, that you can look at to see if it corroborates what has been testified to here or not.

[00:06:26] Speaker 04:
What it said was, it made an affirmative personal statement, government counsel said, in the entire scope of this trial, did any cooperating witness testify to anything, and then answered that question for the jury.

[00:06:37] Speaker 04:
That's what a prosecutor cannot do.

[00:06:39] Speaker 04:
That crosses the line.

[00:06:41] Speaker 04:
So some responses from this, well, this response was not.

[00:06:49] Speaker 04:
I think the 23 seconds I have left of the time that I was trying to reserve, if I could briefly address the co-conspirator statements quickly.

[00:06:55] Speaker 04:
I think the court was faced with essentially an avalanche of co-conspirator statements.

[00:07:00] Speaker 04:
And while the court did its best, I think, to try and address those, if you go through the order that appears at the table at ER 51 through ER 56,

[00:07:09] Speaker 04:
Time and time again, we're talking about past events.

[00:07:12] Speaker 04:
But as this court and others have held, describing past events isn't necessarily in furtherance of the conspiracy.

[00:07:19] Speaker 04:
And what the government needed to show and what the court needed to find was that these statements were actually in furtherance.

[00:07:25] Speaker 04:
And I see that I'm very short on time, so the court does not have questions on that issue.

[00:07:29] Speaker 04:
I'm happy to reserve the balance of my time.

[00:07:31] Speaker 04:
Thank you.

[00:07:32] Speaker 04:
Thank you, Your Honor.

[00:07:54] Speaker 03:
Good morning.

[00:07:55] Speaker 03:
May it please the Court, Mark Flanagan on behalf of Jorge Josso.

[00:08:00] Speaker 03:
Your Honours, and I would like to reserve three minutes as previously noted.

[00:08:04] Speaker 03:
I would like to start with the evidentiary issues, the admission of the unauthenticated and hearsay Champ and Poyokites

[00:08:12] Speaker 03:
the admission of evidence regarding the circumstances of Mr. Josso's arrest, including the district court's statement in open court that there was a warrant for alleged bank robberies, and the admission of evidence of the fight at North Kern State Prison, which even the district court recognized was outside the scope of the charged conspiracies.

[00:08:33] Speaker 03:
The actual admissible evidence against Mr. Josso, the most fit player among the individuals charged in the indictment, defendant number 15 of 15, was exceptionally thin.

[00:08:43] Speaker 03:
It consisted in its entirety of the testimony of two cooperating co-defendants who were cousins, were inappropriately housed together, and with a third cooperator while preparing to testify, and one of whom demonstrably lied to the grand jury, as well as improperly admitted evidence that I'll go into further.

[00:09:03] Speaker 03:
and the jury deliberated for four full days before reaching a verdict reflecting how close the case was even with the erroneous admission of the improper evidence.

[00:09:13] Speaker 03:
Now, because the government's principal evidence came from the testimony of biased cooperating witnesses, it heavily relied upon evidence that it claimed corroborated their testimony, along with extrinsic, highly prejudicial evidence having nothing to do with the crimes with which Mr. Josso was charged.

[00:09:31] Speaker 03:
Let's start with the so-called Champ and Pollo Kites, handwritten notes that purported to recount the removals that Mr. Josso was accused of taking part in.

[00:09:40] Speaker 01:
They're at ER 3182 and 3183.

[00:09:43] Speaker 03:
I think that's correct.

[00:09:46] Speaker 01:
Exhibits 309 and 310?

[00:09:48] Speaker 03:
Yes.

[00:09:49] Speaker 01:
Okay, that's fine.

[00:09:50] Speaker 01:
Go ahead.

[00:09:52] Speaker 03:
Unfortunately, I don't have the ER version.

[00:09:54] Speaker 03:
That's fine.

[00:09:54] Speaker 03:
Go ahead.

[00:09:55] Speaker 03:
Yes.

[00:09:55] Speaker 03:
They're two-page documents.

[00:10:00] Speaker 03:
The declarants for the information in these kites did not testify.

[00:10:03] Speaker 03:
And therefore, there was no opportunity to cross-examine them as to the basis of their alleged knowledge.

[00:10:08] Speaker 03:
And so it is entirely possible that even these non-witness authors didn't actually observe or otherwise have personal knowledge of the Wolfie removal.

[00:10:17] Speaker 03:
So it could very well be the product of hearsay upon hearsay upon hearsay.

[00:10:21] Speaker 03:
We just don't know.

[00:10:22] Speaker 03:
And with respect to the Ernesto Rodriguez removal, there was no corroboration of the cooperator's testimony in a kite or otherwise at all.

[00:10:31] Speaker 03:
Now we acknowledge the admissibility of co-conspirator statements, but only where the requirements of the hearsay exception are established, which they were not here.

[00:10:40] Speaker 03:
And the hearsay exception does not exempt the government from authenticating the kites, that is establishing what they purport to be.

[00:10:47] Speaker 03:
The government failed to authenticate the champ kite.

[00:10:50] Speaker 03:
The sponsoring witness, Mr. Cota, admitted that he was not the author, but claimed it was written by one Alexander Montano, aka Champ.

[00:10:59] Speaker 03:
Cota could not identify the handwriting as being Champ's, nor did he even recall seeing the kite before preparing for trial.

[00:11:06] Speaker 03:
He could not rely on the name of the alleged author within the kite itself as a guarantor

[00:11:12] Speaker 03:
that it was reported to be for at least two reasons.

[00:11:15] Speaker 03:
First, there was testimony that some kites are so-called Xeroxes, which are manually handwritten copies of an original kite, or even a potentially copy of a copy.

[00:11:24] Speaker 03:
Because Alexander Montano, champ, did not testify, we have no way of knowing whether he was the true author of the kite that came into evidence, or whether it was a Xerox, and therefore whether any errors were introduced into it during the recopying.

[00:11:38] Speaker 03:
Moreover, if there were Xeroxes, the Xeroxers were unidentified and unidentifiable.

[00:11:44] Speaker 03:
And yet, under the Muzin case, the identity of the declarant is essential to a determination that the declarant is a co-conspirator.

[00:11:52] Speaker 02:
Where was this Champ-Kite note found?

[00:11:57] Speaker 03:
It was found in a search of a residence, as I recall.

[00:12:01] Speaker 02:
Whose residence do you know?

[00:12:03] Speaker 03:
I don't recall offhand, Your Honor.

[00:12:05] Speaker 03:
It was not Mr. Josso's.

[00:12:06] Speaker 03:
I know that.

[00:12:08] Speaker 02:
And not Mr. Garcia's either?

[00:12:09] Speaker 03:
That I can't say.

[00:12:11] Speaker 03:
I'm sorry.

[00:12:12] Speaker 02:
I mean, the rule of evidence on this doesn't say you have to authenticate it 100%.

[00:12:17] Speaker 02:
You have to have sufficient to support a finding.

[00:12:21] Speaker 02:
So it's true that Mr. Cota didn't write the note.

[00:12:26] Speaker 02:
But he gave some indication that these are the kinds of notes we use.

[00:12:30] Speaker 02:
He recognized the events that were discussed in the note.

[00:12:33] Speaker 02:
He knows who Chomp is.

[00:12:34] Speaker 02:
So why would that not be enough for a jury to conclude that this is an authentic kite?

[00:12:41] Speaker 03:
I don't think it's enough, Your Honor.

[00:12:42] Speaker 03:
He had never seen it before.

[00:12:44] Speaker 03:
He didn't recognize the handwriting.

[00:12:47] Speaker 03:
It was not information that was uniquely in the possession of Mr. Montano, aka Champ, which is another way that you can authenticate something if the statement is of something that the person who it's claimed to have written

[00:13:02] Speaker 03:
uniquely has that information.

[00:13:03] Speaker 03:
The mere fact that it looks like a kite, that the subject matter is something that he was aware of, that doesn't go to, one of those issues go to authentication.

[00:13:14] Speaker 03:
The authentication asks the question, did Mr. Montano write this kite?

[00:13:22] Speaker 03:
All we have is what's written in the kite itself, which is not enough.

[00:13:26] Speaker 03:
You have to authenticate beyond the mere document itself, which is similar under the co-conspirator exception as well.

[00:13:32] Speaker 03:
You can't rely only on the intrinsic content of the document that's being authenticated unless it's actually signed and handwriting is recognized by the sponsoring witness, which they couldn't do.

[00:13:47] Speaker 02:
Were you going to address the unanimity instruction?

[00:13:49] Speaker 02:
Was that something?

[00:13:50] Speaker 02:
Can you go ahead and talk about that?

[00:13:54] Speaker 02:
Sure.

[00:13:54] Speaker 03:
Let me go to my notes.

[00:14:09] Speaker 03:
Your Honor, our position is the government erred by failing to give a specific unanimity instruction regarding the two Vicar conspiracy counts.

[00:14:18] Speaker 03:
Based on Ninth Circuit precedent, a Vicar conspiracy to attempt murder requires unanimity among the jurors as to the underlying conspiracy if there is a potential to find more than one possible conspiracy, and that's the Gonzales and Lapierre cases.

[00:14:33] Speaker 02:
Is it your position that

[00:14:35] Speaker 02:
Here the argument is, by the government, we have a conspiracy of attempted murder, generally.

[00:14:44] Speaker 02:
And there are several attempted murders that are listed as examples of that.

[00:14:51] Speaker 02:
Do you think each one of those require its own separate instruction in the context of a Vicar case like this?

[00:14:56] Speaker 03:
I think specifically with the Vicar conspiracy counts, the district court was obliged, given that there were two potential victims.

[00:15:09] Speaker 02:
I'm just kind of wondering what the rule is that you want us to adopt here, and I recognize it's plain error, and that creates some additional questions for your position.

[00:15:16] Speaker 02:
But just in terms of the rule you would want, if there's a vicar conspiracy with multiple murders or attempted murders, you think there needs to be a unanimity instruction just sort of as a matter of law in that context?

[00:15:29] Speaker 03:
I do, Your Honor.

[00:15:30] Speaker 03:
I think in that particular context, and I think the Lapierre case is instructive there, that Lapierre didn't say in all cases we must do that, but under the facts of Lapierre, which I think follow through in most circumstances under the hypothetical the court has posed, which is where there are multiple possible victims who are identified in the evidence during the case, whether

[00:15:54] Speaker 03:
to ensure that the jury has agreed that the defendant was a part of a conspiracy to remove that particular individual as opposed to six of them think that he was guilty of

[00:16:07] Speaker 03:
of being part of the conspiracy to murder or remove victim one and six of them thinking that he was part of the conspiracy to... Is this statement from Braverman still good law?

[00:16:20] Speaker 01:
The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one?

[00:16:34] Speaker 05:
I'm not sure to be perfectly honest, Your Honor.

[00:16:43] Speaker 05:
to attack other gang members in the jail.

[00:16:48] Speaker 05:
There's different victims and maybe you have different people involved with the different victims, but what in the evidence tells us that sort of the structure and why they're having these conversations about removing particular people are completely independent from each other?

[00:17:05] Speaker 03:
Well, we don't know, and frankly, part of the problem is that the evidence of Mr. Josso's participation in the conspiracy was very thin.

[00:17:16] Speaker 05:
All we really have is that... I mean, the government presented evidence that...

[00:17:21] Speaker 05:
sort of the structure of how these removals were happening was a gang-wide practice.

[00:17:26] Speaker 05:
So there's some evidence that it's an overall practice, not that it's individualized to particular victims.

[00:17:34] Speaker 05:
So that's some evidence in the record.

[00:17:37] Speaker 05:
What else is there to suggest that the opposite is true, which needs to be there for your argument to work?

[00:17:43] Speaker 03:
Well, I think that the reason why I don't think the government's position works is that

[00:17:50] Speaker 03:
The government's position regarding Mr. Josso's conspiracy appears to be that there was an agreement to kill or assault members who in the future violated NF rules.

[00:18:04] Speaker 03:
Our position is that does not as a matter of law work for the two Vicar conspiracies because they require a specific intent to kill or assault a specific individual.

[00:18:14] Speaker 03:
And under a government stated theory, the hypothetically intended victims in this overall overarching, you shall remove someone if you're asked to, those victims do not yet even exist at the time of this alleged agreement because they haven't yet broken any rules.

[00:18:29] Speaker 03:
That's why

[00:18:31] Speaker 03:
The government was obliged to prove, under the two Vicar counts, that Mr. Josso was part of a specific conspiracy to remove either Wilfy or Ernesto Rodriguez.

[00:18:42] Speaker 03:
It's not enough for them to say, under the Vicar rules, and it's why we challenge under Vicar not to count one RICO conspiracy, but under Vicar, because you have to have a specific intent to

[00:18:53] Speaker 03:
harm or assault a specific individual, you can't, the government cannot rely on some overarching conspiracy that if in the future you're ever asked to assault or kill somebody, you shall do it.

[00:19:06] Speaker 03:
That's not good enough because you don't have the specific intent at that time, at the time of that hypothetical agreement to kill or assault a specific individual.

[00:19:15] Speaker 03:
That's why the government's theory just doesn't work with respect to the Vicar conspiracies sort of full stop.

[00:19:22] Speaker 03:
And that's why as well,

[00:19:23] Speaker 03:
The court was obliged to or should have instructed the jury that you need to be unanimous as to which conspiracy Mr. Josso was, what was the object of the conspiracy that he was a part of.

[00:19:38] Speaker 03:
Was it with respect to Wolfie?

[00:19:40] Speaker 03:
Was it with respect to Ernesto Rodriguez or both?

[00:19:43] Speaker 03:
But we can't have a situation, and this was the fear that the Gonzales District Court actually addressed by requiring unanimity as to the intended victims.

[00:19:57] Speaker 01:
All right, counsel, you're over your 10 minutes, but we'll give you some time on rebuttal.

[00:20:01] Speaker 03:
Thank you very much, Your Honor.

[00:20:12] Speaker 00:
morning may please the court and a show for the United States.

[00:20:17] Speaker 00:
This court should affirm the convictions and sentences in these cases for three reasons.

[00:20:22] Speaker 00:
First, Mr. Garcia and Mr. Jasso were charged and convicted of three conspiracy counts that rested on the same underlying factual basis.

[00:20:32] Speaker 00:
And these facts, as proven at trial, showed a single overarching conspiracy, which was to conduct and participate in the affairs of the Nuestra Familia racketeering enterprise.

[00:20:44] Speaker 00:
As part of that enterprise, those defendants agreed to murder and assault in aid of racketeering by removing fellow gang members who violated NF rules.

[00:20:54] Speaker 00:
Mr. Garcia was a leader in this enterprise with the authority to direct these removals, and Jasso was a foot soldier who participated in several other removals.

[00:21:04] Speaker 00:
These same facts and crimes that were charged in the indictment were proven at trial, and so there was no constructive amendment or fatal variance in this case.

[00:21:15] Speaker 00:
furthermore, because there was no evidence of multiple unrelated conspiracies, the district court did not plainly err in not to respond to issuing a specific unanimity instruction.

[00:21:28] Speaker 00:
Second, the district court did not plainly err in its evidentiary rulings in this case.

[00:21:33] Speaker 00:
These cooperators did not testify as unnoticed experts, but as percipient witnesses describing their personal experiences growing up and being members of Nuestra Familia and the Nortonios gangs in the Salinas area.

[00:21:46] Speaker 00:
The kites and the other statements that are challenged by the appellants were properly admitted as co-conspirator statements because they were made in furtherance of this enterprise and its purposes.

[00:21:58] Speaker 02:
Can you address the authentication of the CHAMP kite?

[00:22:01] Speaker 00:
Yes, Your Honor.

[00:22:03] Speaker 00:
With regard to the Champ Kite, that came during the co-operator Kota's testimony.

[00:22:13] Speaker 00:
And the witness there testified that he knew Champ as the son of Mr. Garcia's girlfriend.

[00:22:21] Speaker 00:
He was able to identify

[00:22:24] Speaker 00:
the champ as Alexander Montano and how he knew him.

[00:22:28] Speaker 00:
He also discussed essentially that he provided testimony about his knowledge of kites in general and why he recognized this.

[00:22:37] Speaker 00:
I will also say that he provided much testimony about both of the- Did he recognize it?

[00:22:42] Speaker 02:
I mean, he hadn't seen it before, right?

[00:22:45] Speaker 00:
Yes, he did, Your Honor.

[00:22:47] Speaker 00:
And so he did testify as far as with the with the welfare removal when it occurred.

[00:22:51] Speaker 00:
The first time he said he had heard some shuffling, he saw it happen, and he was suspicious about it.

[00:22:58] Speaker 00:
And so he actually ordered, he was in jail at the time and ordered Magdaleno and others to

[00:23:03] Speaker 00:
submit incident reports about what happened because he was suspicious.

[00:23:07] Speaker 00:
He received those incident reports and he actually called Mr. Garcia about it shortly thereafter.

[00:23:11] Speaker 00:
Then he left jail.

[00:23:13] Speaker 00:
When he came back, he said there were two other members that had come out and there was a lot of

[00:23:18] Speaker 00:
essentially accusations that what Magdaleno and Cervantes did with the Wolfie removal were wrong.

[00:23:24] Speaker 00:
And so those kites were written during that time and he said.

[00:23:27] Speaker 02:
They were wrong in that they were unauthorized or why were they wrong?

[00:23:31] Speaker 00:
There was, according to Cota's testimony, he stated that he was not sure if the removal of Wolfie was actually something that was authorized by the Carnale or if Magdaleno had essentially authorized it himself.

[00:23:47] Speaker 00:
But Magdaleno had said that it was essential at the time to remove Wolfie because he was there on a rape charge.

[00:23:55] Speaker 00:
Some of the kites that CODA had received and tried to verify this contradicted that.

[00:24:01] Speaker 00:
And so he did provide sufficient

[00:24:05] Speaker 00:
testimony about how he and why he recognized those kites based off of their substance and under this court saw that is enough to meet that minimal standard for authentication.

[00:24:18] Speaker 01:
He testified about format too, not just substance, right?

[00:24:21] Speaker 00:
Yes, Your Honor.

[00:24:22] Speaker 00:
Yes, Your Honor.

[00:24:22] Speaker 00:
He did.

[00:24:23] Speaker 00:
He testified to certainly some length about how he signed, how he started with certain greetings, and what these kites were used for, and what they were written on, and so forth.

[00:24:38] Speaker 00:
So he certainly had more than sufficient knowledge of kites and provided sufficient testimony to show that these were what he claimed them to be.

[00:24:49] Speaker 05:
What about the co-conspirator statements that seem to be about just past events?

[00:24:53] Speaker 05:
And I'm thinking mostly of Zavala's testimony regarding the Gonzales removal and then Aguilera's testimony about that same topic.

[00:25:01] Speaker 05:
Seems like that subject matter is just something in the past that happened.

[00:25:06] Speaker 05:
How is that in furtherance of the conspiracy going forward?

[00:25:09] Speaker 00:
Well, I think that

[00:25:11] Speaker 00:
With a lot of these co-conspirator statements, I think what matters here is what the evidence shows that this gang was about and how it operated.

[00:25:20] Speaker 05:
And I think with both the kites and a lot of these statements that- I get that's the government's reason for introducing it into the record, but in order to get out of the hearsay,

[00:25:29] Speaker 05:
bar for a co-conspirator statement, you have to show that the evidence coming in was in furtherance of the conspiracy in terms of the speaker, and that was their purpose.

[00:25:40] Speaker 05:
I'm not quite sure how you meet that for statements that are just purely stuff that has happened in the past that don't relate, unlike some of the other pieces of evidence, don't relate to

[00:25:52] Speaker 05:
a concern the speaker had about being disciplined for something or other things related to ongoing activity?

[00:25:59] Speaker 00:
Well, honor, these sort of communications that were a hearsay were indeed statements that were made in furtherance of conspiracy to keep order and discipline in this gang.

[00:26:10] Speaker 00:
I mean, this is how the gang operated, right?

[00:26:12] Speaker 00:
They communicated with each other through sign language or kites or just talking to each other about incidents that occurred about

[00:26:22] Speaker 00:
There was a whole, there was a due process mechanism by which gang activities were reported and investigated.

[00:26:29] Speaker 00:
Again.

[00:26:30] Speaker 05:
Let me make sure I understand you.

[00:26:33] Speaker 05:
So the argument is that by talking about a past removal or attempted removal, that it's in furtherance of the conspiracy because it's sort of furthering the message, you better stay in line, you better follow the rules or this will happen to you.

[00:26:48] Speaker 00:
Yes, Your Honor.

[00:26:49] Speaker 05:
If that's your theory, then how is it that

[00:26:52] Speaker 05:
I mean, wouldn't essentially everything that they're talk about related to the gang would be in furtherance of the conspiracy in your mind?

[00:26:59] Speaker 00:
With the facts in this case, yes.

[00:27:01] Speaker 00:
Most things, if it has that purpose of essentially keeping order and discipline in the gang.

[00:27:05] Speaker 00:
Now, I think this court's case in Layton strongly supports this.

[00:27:10] Speaker 00:
I think the line is drawn where in Eubanks, you had the defendant speaking to his wife about something that happened.

[00:27:18] Speaker 00:
And this court in Eubanks found that there was no

[00:27:21] Speaker 00:
essentially enterprise or conspiracy purpose there.

[00:27:24] Speaker 00:
However, Sears was another case in which this court found that I think there was a woman and her husband who were harboring the defendants or essentially co-conspirators who made statements with essentially the intent to dissuade them from calling the police.

[00:27:43] Speaker 01:
Counsel, for what you're talking about right now, was there any objection made that there was, in addition to the

[00:27:50] Speaker 01:
problem that there was a 403-404 problem that the probative value was significantly outweighed by the prejudice?

[00:27:58] Speaker 00:
I think this the judge in this case was very careful about her 403 analysis and I think did keep out a significant amount of the statements and I think you see this in the pre-trial proceedings.

[00:28:09] Speaker 01:
On this one was that objection made as well?

[00:28:12] Speaker 00:
With which specific statements?

[00:28:14] Speaker 01:
You're just answering the question about about

[00:28:18] Speaker 01:
past incidents admitted for the purpose that it was in furtherance because it's showing we need to keep people in line.

[00:28:28] Speaker 01:
This is the way things worked on those.

[00:28:31] Speaker 01:
Was there ever an objection made that the particular subject matter was so prejudicial it should be kept out because that outweighed its probative value?

[00:28:40] Speaker 00:
I think there were some general objections to the subject matter, Your Honor.

[00:28:44] Speaker 00:
I don't remember if there were specific objections to these specific statements there.

[00:28:48] Speaker 00:
However, with regards to the guardrail.

[00:28:51] Speaker 00:
Absolutely, Your Honor, and it was a guardrail that was used in this case by the district court.

[00:28:55] Speaker 00:
I would say that as far as affirmative value, those sort of statements showing, again, both the truth of the matter.

[00:29:03] Speaker 00:
A lot of the statements pertained to past remittals that were part of the charge conduct, but also helped to show the enterprise and how this enterprise operated.

[00:29:10] Speaker 00:
This was a very militaristic gang that operated off very strict rules and imposed

[00:29:20] Speaker 00:
by the severe forms of discipline when it came to violating those rules and kept that order discipline by instilling fear throughout its ranks and part of that was essentially the communications that were.

[00:29:33] Speaker 00:
Spread throughout that enterprise.

[00:29:36] Speaker 05:
Can we shift gears a little bit and I have a question for you about the Brady issue.

[00:29:41] Speaker 05:
How did the government concede to the district court that the information about the false grand jury testimony should have been provided to defense counsel pre-trial?

[00:29:51] Speaker 05:
And I guess a sort of a companion question to that is, should we consider the fact that the government made that statement in assessing the issue?

[00:29:59] Speaker 00:
Your Honor, I think the government's concession here

[00:30:05] Speaker 00:
was essentially that, yes, there was a late disclosure in the sense that as soon as that statement was made, and again, we're talking about the second statement, which was when during witness prep, Mr. Delgado and the government realized or said something along the lines that he had misspoke during his grand jury interview.

[00:30:28] Speaker 00:
The government, I think, during the litigation later said that,

[00:30:33] Speaker 00:
In hindsight, at the time, it should have made a note of that statement and provided it to the defense.

[00:30:39] Speaker 00:
And I think that's a fair characterization.

[00:30:42] Speaker 00:
I think it doesn't ultimately affect the Brady issue, because the three elements, you know, materiality still has to be met.

[00:30:48] Speaker 00:
And there was no prejudice here by that late disclosure, I think, as the record clearly shows.

[00:30:55] Speaker 00:
So I don't, for your question on whether it should have any impact for this court's ruling, I don't think it does on that Brady issue.

[00:31:03] Speaker 02:
Can you turn to the unanimity instruction?

[00:31:06] Speaker 02:
I guess the question I have here, there is a plain error overlay to this, but just in terms of what the law is, can you just give a case where you have an attempted murder as the object of the conspiracy and you have multiple attempted murders?

[00:31:22] Speaker 02:
Are there ever situations in which a more specific instruction is going to be required or is it always going to be sufficient what we have here?

[00:31:29] Speaker 00:
Well, I think what's important in this particular case is that the overarching conspiracy to charge her is regal conspiracy.

[00:31:37] Speaker 00:
And regal conspiracy, as the Supreme Court has made very clear, does not require overt acts as an element.

[00:31:46] Speaker 00:
Beneath that you have counts two and three, and I think that's what the specific unanimity instruction challenge is based on.

[00:31:52] Speaker 00:
Those are the Vicar conspiracies.

[00:31:54] Speaker 00:
Those Vicar conspiracies are based again on the same facts, which is essentially the removals that occurred as part of these enterprise activities.

[00:32:08] Speaker 00:
And there's not an issue under this court's law.

[00:32:13] Speaker 00:
I would say that there are a few cases, United States versus Biblio, which is some 49F2D581, and essentially,

[00:32:23] Speaker 00:
If there's no evidence of multiple, meaning unrelated and separate conspiracies, there's really no genuine issue or risk of confusion that the jury might convict on multiple or different conspiracies.

[00:32:41] Speaker 02:
Does it just depend on the evidence?

[00:32:45] Speaker 02:
Someone could say, well, these removals were disconnected, had nothing to do with each other.

[00:32:49] Speaker 02:
Your position is that's not true.

[00:32:50] Speaker 02:
They were all part of a common scheme and plan to remove members of the gang who had acted out of line.

[00:32:58] Speaker 02:
But does it just depend on every case on what the evidence shows, or are there any kind of legal rules that undergird this?

[00:33:04] Speaker 00:
Well, it depends on the evidence in any certain case.

[00:33:08] Speaker 00:
But I think the legal rules, I think Judge Beto, what you were mentioning earlier with the Braverman case, it is certainly still a law that essentially you can have a single overarching conspiracy.

[00:33:21] Speaker 01:
Yeah, I mean, but to go to Judge Bress's question, I mean, it can't be one size fits all.

[00:33:28] Speaker 01:
You have to look at what the evidence is, what the claims are.

[00:33:31] Speaker 01:
Is there something under which a reasonable jury could find?

[00:33:34] Speaker 01:
that there were actually multiple conspiracies here.

[00:33:39] Speaker 01:
And I mean, then you might get to a question on appeal about harmless error, but it would have to depend on what the evidence is, right?

[00:33:48] Speaker 01:
Absolutely.

[00:33:48] Speaker 00:
Absolutely, Your Honor.

[00:33:50] Speaker 00:
And I think that's why, in this case, the evidence clearly showed one overarching conspiracy.

[00:33:55] Speaker 00:
And again, it was part of this gangs operation to

[00:33:59] Speaker 00:
enforce its own rules through these violent removals.

[00:34:03] Speaker 00:
And therefore, within this overarching conspiracy was essentially sub-conspiracies, these sub-agreements to commit the Vicar murder and commit the Vicar assaults.

[00:34:16] Speaker 02:
With respect to defendant Jasso, if you take out for the moment the Champ Kite, what is the evidence supporting his convictions here?

[00:34:27] Speaker 00:
Well, Your Honor, there were all the co-conspirators, or four co-conspirators, who discussed JASO's involvement.

[00:34:34] Speaker 00:
Three of them were actually in the same K-Pod area as JASO was, saw him on a daily basis, saw him at trainings.

[00:34:43] Speaker 00:
report Jasso actually, I think he did intake for, I believe it was Aguilera, and he was a squad leader for Delgado.

[00:34:52] Speaker 00:
And so they had, they testified to their daily experiences about Jasso's involvement in both removals and the conspiracy.

[00:35:00] Speaker 02:
How about the specific two removals, I think it's two, that are setting aside the Kern, the North Kern state prison one, but the other, the two removals that he was allegedly involved in.

[00:35:12] Speaker 00:
And so the both Delgado and Aguilera testified as did actually as did Zavala about those removals and witnessing essentially just his involvement in them.

[00:35:43] Speaker 00:
No further questions.

[00:35:44] Speaker 00:
The government respectfully requests that this quarter firm.

[00:35:48] Speaker 00:
Thank you.

[00:36:04] Speaker 04:
Your Honours, I'd like to address three points, if I may.

[00:36:07] Speaker 04:
First, I think there's a really interesting admission that the government made when they admitted that the Wolf Hill removal was about freelancing, that Magdaleno did something because he thought it was essential.

[00:36:16] Speaker 04:
And as the testimony at trial established, people could act independently in those circumstances.

[00:36:21] Speaker 04:
And there was testimony, in fact, from Mr. Cota, among others, that there was freelancing, that people were doing what they wanted.

[00:36:27] Speaker 04:
And so that, I think, goes to the point that

[00:36:31] Speaker 04:
why there needed to be a specific unanimity instruction.

[00:36:35] Speaker 04:
Because the test is not whether the government has no evidence of a single conspiracy.

[00:36:39] Speaker 04:
The test is, is there a reasonable possibility that a jury could find multiple conspiracies?

[00:36:44] Speaker 04:
And here where there was evidence that not everybody was on the same page, that people were freelancing, I think it was appropriate to give one here.

[00:36:51] Speaker 04:
I'd also like to note, in response to the court's point earlier, that when it came to counts two and three, neither, as the district court noted with some puzzlement, actually named any specific victims.

[00:37:01] Speaker 04:
And so a specific unanimity instruction was important so that each juror wasn't sort of choosing their own adventure, because that goes beyond the points of constitutional limits.

[00:37:11] Speaker 04:
Second, the government says once again that Mr. Garcia was the leader.

[00:37:15] Speaker 04:
But I've encouraged the court to look at the evidence that actually supports that.

[00:37:18] Speaker 04:
And if it looks at, for example, some of the sites in the government's brief, as we explained in our reply, they are attributing to Mr. Garcia testimony that was about general practices, but that was not specifically attributed to him.

[00:37:29] Speaker 04:
The three cooperators who did talk about these things, for example, one had a single conversation with Mr. Garcia.

[00:37:39] Speaker 04:
Another had never had an interaction with him or had never spoken with him.

[00:37:43] Speaker 04:
And one had two conversations, one of which had occurred many years earlier.

[00:37:47] Speaker 04:
So again, when the question is, when you look at what these assumptions are based on and what the permissible evidence is, we'd submit that that calls for reversal here.

[00:37:55] Speaker 04:
And then finally, I'd like to make one point about the Brady issue, because I think it ties in with the same issue as the voucher, and the government said, well, there was a late disclosure.

[00:38:03] Speaker 04:
I'd like to correct that.

[00:38:03] Speaker 04:
There was actually no disclosure by the government.

[00:38:05] Speaker 04:
This was raised by defense counsel, and the government's response was, well, we didn't do anything with it.

[00:38:10] Speaker 04:
When we realized the problem, we didn't do anything with it.

[00:38:12] Speaker 04:
And in their view, that was a defense.

[00:38:15] Speaker 04:
It was not.

[00:38:15] Speaker 04:
That's actually not what the government is supposed to do.

[00:38:18] Speaker 04:
The government is supposed to disclose it to the defense, so the defense has an opportunity to address it.

[00:38:23] Speaker 04:
It ultimately came out, but again, that sort of underscores the fundamental problems with this case.

[00:38:28] Speaker 04:
If there are no questions, I'd submit.

[00:38:29] Speaker 04:
Thank you very much.

[00:38:31] Speaker 01:
Council will give you two minutes.

[00:38:45] Speaker 03:
permission I'd like to return to the evidentiary issues briefly at least and I I'll note that

[00:38:54] Speaker 03:
As I was listening to the government counsel argue, I found it telling that when asked what was the evidence against Mr. Jasso, there was no mention even of the North current state prison fight, nor of the evidence that came in, albeit stricken one week later about the circumstances of his arrest on flight with guns and gang tattoos and so forth.

[00:39:17] Speaker 03:
What they really had was the kites plus the testimony of the impeached co-conspirators.

[00:39:27] Speaker 03:
With respect to, and I'll try to be brief, apart from the authentication issue, as the court is aware,

[00:39:35] Speaker 03:
Our position is that the government failed to show that Pollo or Champ were members of a conspiracy with Mr. Jasso, as required under the law, and that these statements were in furtherance of the conspiracy.

[00:39:49] Speaker 03:
As I believe Judge Forrest was inquiring about, I think it's absolutely the case that these were just

[00:39:59] Speaker 03:
narrations of past events.

[00:40:02] Speaker 03:
On appeal, the government claims that the Kites furthered the conspiracy because the evidence demonstrated how NF kept its members adherent to its strictures through the threat and use of violence as occurred with Wolfie.

[00:40:14] Speaker 03:
That's talking about the substance of the Kites.

[00:40:17] Speaker 03:
The underlying facts within the Kites may show, may further a conspiracy, but that doesn't show how the Kite

[00:40:24] Speaker 03:
further the conspiracy, which is what the government had to show.

[00:40:27] Speaker 03:
Not that the underlying sort of policy reflected in the kite furthers the conspiracy, but how the kite itself furthers the conspiracy, and that they failed to show.

[00:40:37] Speaker 03:
With respect to, and I will note and cite in our briefs, that the declarants out of court statement standing alone is insufficient to establish that the defendant and the declarant have knowledge of and participated in a common conspiracy.

[00:40:54] Speaker 03:
And of course, mere gang membership does not equal conspiracy.

[00:40:59] Speaker 03:
I'd like to turn to the evidence around the circumstances of the arrest.

[00:41:05] Speaker 01:
You're out of time.

[00:41:06] Speaker 01:
Why don't you do it very quickly?

[00:41:07] Speaker 03:
OK.

[00:41:08] Speaker 03:
I'll just note then, without elaboration, that additional extremely prejudicial evidence came in through the circumstances surrounding his arrest upon flight, which the district court struck.

[00:41:23] Speaker 03:
But one week later, and it's just a bell that can't be unrung,

[00:41:27] Speaker 03:
And then secondly, the North current state prison fight, which only went in, frankly, to show propensity to violence.

[00:41:34] Speaker 03:
It was not tied into being part of a removal.

[00:41:37] Speaker 03:
Anything like that was very vague.

[00:41:39] Speaker 03:
There was a fight in another prison.

[00:41:40] Speaker 03:
It's outside the scope of the conspiracy, and it's not proper for or for be evidence either.

[00:41:45] Speaker 03:
With that, I'll submit.

[00:41:46] Speaker 01:
All right.

[00:41:46] Speaker 01:
We thank all counsel for their arguments.

[00:41:49] Speaker 01:
And the case just argued is submitted.

[00:41:51] Speaker 01:
And with that, we are adjourned for the day.